EXHIBIT 10.8.1
CONFORMED COPY
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CREDIT AGREEMENT
dated as of
July 17, 1998
among
TELECORP PCS, INC.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Issuing Bank
TD SECURITIES (USA) INC.,
as Syndication Agent
BANKERS TRUST COMPANY,
as Documentation Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms............................................ 1
SECTION 1.02. Classification of Loans and Borrowings................... 40
SECTION 1.03. Terms Generally.......................................... 40
SECTION 1.04. Accounting Terms; GAAP................................... 39
ARTICLE II
The Credits
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SECTION 2.01. Commitments.............................................. 41
SECTION 2.02. Loans and Borrowings..................................... 41
SECTION 2.03. Requests for Borrowings.................................. 43
SECTION 2.04. Funding of Borrowings.................................... 44
SECTION 2.05. Interest Elections....................................... 44
SECTION 2.06. Termination and Optional Reduction
of Commitments........................................... 46
SECTION 2.07. Repayment of Loans; Evidence of Debt..................... 47
SECTION 2.08. Automatic Revolving Commitment Reductions; Amortization
of Term Loans............................................ 48
SECTION 2.09. Prepayment of Loans...................................... 50
SECTION 2.10. Fees..................................................... 53
SECTION 2.11. Interest................................................. 54
SECTION 2.12. Alternate Rate of Interest............................... 55
SECTION 2.13. Increased Costs.......................................... 55
SECTION 2.14. Break Funding Payments................................... 57
SECTION 2.15. Taxes.................................................... 57
SECTION 2.16. Payments Generally; Pro Rata
Treatment; Sharing of Setoffs........................... 59
SECTION 2.17. Mitigation Obligations; Replacement of Lenders........... 62
SECTION 2.18. Expansion Facility....................................... 63
SECTION 2.19. Letters of Credit........................................ 64
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers..................................... 69
SECTION 3.02. Authorization; Enforceability............................ 70
SECTION 3.03. Governmental Approvals; No Conflicts..................... 70
SECTION 3.04. Financial Condition; No Material Adverse Change.......... 70
SECTION 3.05. Properties............................................... 71
SECTION 3.06. Litigation and Environmental Matters..................... 71
SECTION 3.07. Compliance with Laws and Agreements...................... 72
SECTION 3.08. Investment and Holding Company Status.................... 72
SECTION 3.09. Taxes.................................................... 72
SECTION 3.10. ERISA.................................................... 73
SECTION 3.11. Disclosure............................................... 73
SECTION 3.12. Subsidiaries; Parents.................................... 74
SECTION 3.13. Absence of Non-Permitted Obligations..................... 75
SECTION 3.14. Licenses................................................. 75
SECTION 3.15. No Burdensome Restrictions............................... 75
SECTION 3.16. Use of Proceeds.......................................... 76
SECTION 3.17. Flood Insurance.......................................... 76
SECTION 3.18. Insurance................................................ 76
SECTION 3.19. Labor Matters............................................ 76
SECTION 3.20. Solvency................................................. 76
SECTION 3.21. FCC Compliance........................................... 77
SECTION 3.22. Security Documents....................................... 77
SECTION 3.23. Copyrights, Trademarks, etc.............................. 79
SECTION 3.24. Federal Regulations...................................... 79
SECTION 3.25. Year 2000................................................ 79
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date........................................... 80
SECTION 4.02. Each Credit Event........................................ 87
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other
Information............................................. 88
SECTION 5.02. Notices of Material Events............................... 91
SECTION 5.03. Information Regarding Collateral......................... 92
SECTION 5.04. Existence; Conduct of Business........................... 93
SECTION 5.05. Payment of Obligations................................... 93
SECTION 5.06. Maintenance of Properties................................ 93
SECTION 5.07. Insurance................................................ 93
SECTION 5.08. Casualty and Condemnation................................ 93
SECTION 5.09. Books and Records; Inspection and Audit Rights........... 94
SECTION 5.10. Compliance with Laws..................................... 94
SECTION 5.11. Use of Proceeds.......................................... 95
SECTION 5.12. Additional Subsidiaries.................................. 95
SECTION 5.13 Further Assurances....................................... 95
SECTION 5.14. Interest Rate Protection................................. 97
SECTION 5.15. Satisfaction of F-Block Licence Requirements............. 97
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness; Certain Equity Securities.................. 97
SECTION 6.02. Liens.................................................... 101
SECTION 6.03. Sale and Lease-Back Transactions......................... 102
SECTION 6.04. Fundamental Changes...................................... 102
SECTION 6.05. Investments, Loans, Advances,
Guarantees and Acquisitions.............................. 103
SECTION 6.06 Asset Sales.............................................. 105
SECTION 6.07. Hedging Agreements....................................... 106
SECTION 6.08. Restricted Payments; Certain Payments
of Indebtedness.......................................... 106
SECTION 6.09. Transactions with Affiliates............................. 107
SECTION 6.10. Restrictive Agreements................................... 108
SECTION 6.11. Amendment of Material Documents.......................... 108
SECTION 6.12. Financial Covenants...................................... 109
SECTION 6.13. Liabilities of Special Purpose Subsidiaries.............. 113
ARTICLE VII
Events of Default................................. 114
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ARTICLE VIII
The Administrative Agent.......................... 119
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ARTICLE IX
Miscellaneous
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SECTION 9.01. Notices.................................................. 121
SECTION 9.02. Waivers; Amendments...................................... 122
SECTION 9.03. Expenses; Indemnity; Damage Waiver....................... 124
SECTION 9.04. Successors and Assigns................................... 126
SECTION 9.05. Survival................................................. 129
SECTION 9.06. Counterparts; Integration; Effectiveness................. 129
SECTION 9.07. Severability............................................. 130
SECTION 9.08. Right of Setoff.......................................... 130
SECTION 9.09. Governing Law; Jurisdiction; Consent
to Service of Process................................... 130
SECTION 9.10. WAIVER OF JURY TRIAL..................................... 131
SECTION 9.11. Headings................................................. 132
SECTION 9.12. Confidentiality.......................................... 132
SCHEDULES:
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Schedule 1.01 -- Equity Participations
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Litigation and Environmental Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.14 -- Network Area/Licenses
Schedule 3.18 -- Insurance
Schedule 3.22 -- Mortgaged Property
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05(b) -- Investments
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Opinion of Borrower's Counsel
Exhibit B-2 -- Opinion of FCC Counsel
Exhibit B-3 -- Form of Opinion of Local Counsel
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Pledge Agreement
Exhibit E -- Form of Security Agreement
Exhibit F -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit G -- Master Lease between the Equipment Subsidiary and the Borrower
CREDIT AGREEMENT dated as of July 17, 1998 among TELECORP PCS,
INC., a Delaware corporation (the "Borrower"), the LENDERS (as
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defined in Article I) party hereto, THE CHASE MANHATTAN BANK, as
Administrative Agent and Issuing Bank, TD SECURITIES (USA) INC.,
as Syndication Agent, and BANKERS TRUST COMPANY, as Documentation
Agent.
WHEREAS the Borrower intends to construct and operate a mobile
wireless PCS telecommunications network utilizing TDMA IS-136 technology or its
successor and networks ancillary thereto serving the MTAs and BTAs listed on
Schedule 3.14 (the "Network");
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WHEREAS the Borrower has requested the Lenders to make available
credit facilities to finance capital expenditures related to the construction of
the Network, the acquisition of Related Businesses, working capital needs of the
Borrower and subscriber acquisition costs; and
WHEREAS the Lenders are willing to make the requested credit
facilities available on the terms and subject to the conditions set forth in
this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"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, bear interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted EBITDA" means for any fiscal period, the sum of (a)
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Consolidated EBITDA for such period plus (b) the aggregate amount deducted in
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determining Consolidated Net Income for such period in respect of sales,
marketing and advertising expenses and consumer-related equipment subsidy
expenses.
"Adjusted LIBO 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 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
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as administrative agent and collateral agent for the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire
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in the 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 and with
respect to any Lender that is a fund that invests in commercial loans, any other
fund that invests in commercial loans and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Aggregate Revolving Exposure" means the aggregate amount of the
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Lenders' Revolving Exposures.
"Aggregate Service Revenue" means for any period, all service
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revenues, including without limitation subscriber revenues, toll revenues,
roaming revenues, wholesale service revenues and long-distance revenues, of the
Borrower and the Restricted Subsidiaries for such period.
"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 and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Annualized Adjusted EBITDA" means for the period ending on the last
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day of any fiscal quarter, the product of
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(a) Adjusted EBITDA for the two consecutive fiscal quarters ending on such last
day, multiplied by (b) two.
"Annualized EBITDA" means for the period ending on the last day of any
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fiscal quarter, the product of (a) Consolidated EBITDA for the two consecutive
fiscal quarters ending on such last day, multiplied by (b) two.
"Applicable Margin" means, for any day (a) with respect to any Tranche
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B Term Loan, the applicable Tranche B Rate, and (b) with respect to any ABR Loan
or Eurodollar Loan that is a Revolving Loan or a Tranche A Term Loan, as the
case may be, the applicable rate per annum set forth below under the caption
"ABR Spread" or "Eurodollar Spread", as the case may be, based upon the Leverage
Ratio as of the most recent determination date; provided that, unless
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Consolidated EBITDA for the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01 is positive, the
"Applicable Margin" for purposes of clause (b) shall be the applicable rate per
annum set forth below in Category 1:
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Leverage Ratio: ABR Eurodollar
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Spread Spread
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Category 1 1.75% 2.75%
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Not Applicable
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Category 2 1.50% 2.50%
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Greater than or equal to 10.0 to 1.00
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Category 3 1.25% 2.25%
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Greater than or equal to 9.0 to 1.00
but less than 10.0 to 1.00
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Category 4 1.00% 2.00%
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Greater than or equal to 8.0 to 1.00
but less than 9.0 to 1.00
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Category 5 0.75% 1.75%
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Greater than or equal to 6.0 to 1.00
but less than 8.0 to 1.00
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Category 6 0.50% 1.50%
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Leverage Ratio: ABR Eurodollar
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Spread Spread
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Greater than or equal to 5.0 to 1.00
but less than 6.0 to 1.00
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Category 7
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0.25% 1.25%
Less than 5.0 to 1.00
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For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 1 (A)
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at any time that an Event of Default has occurred and is continuing or (B) if
the Borrower fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
Notwithstanding the foregoing, in the event that within twelve months
of the Closing Date the Borrower effects an issuance of Subordinated Debt with
an initial public offering or purchase price which, together with the
outstanding principal amount (after giving effect to any prepayments of the
Series B Bonds made with the proceeds of such Subordinated Debt) of the Series B
Bonds, exceeds $220,000,000, the Applicable Margin will be reduced by 25 basis
points.
"Applicable Rate" means with respect to the commitment fees payable
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hereunder, the applicable rate per annum set forth below based upon the
percentage of the total Revolving Commitments and Tranche A Commitments which
are unused on such date:
5
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Undrawn Commitments as a Percentage of the Total
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Revolving Commitments and Tranche A Commitments Commitment Fee
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Greater than or equal to 75.0% 1.25%
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Greater than or equal to 50.0% but
less than 75.0% 0.875%
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Less than 50% 0.50%
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"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, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AW" means AT&T Wireless PCS, Inc.
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"AW Licenses" has the meaning set forth in the definition of Initial
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Equity Contributions.
"Base Station" means a radio electronic hardware cabinet designed to
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be used in the operation of a System and the equipment appurtenant thereto.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means TeleCorp PCS, Inc., a Delaware corporation.
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"Borrowing" means Loans of the same Class and Type, made, converted or
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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.
"BTA" means a Basic Trading Area, as defined in 47 C.F.R. (S)24.202.
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"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
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closed; provided that, when used in connection with a Eurodollar Loan, the term
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"Business Day" shall also exclude any day on which banks are not open for
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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 of the Borrower and
its consolidated Subsidiaries (other than Unrestricted 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 and (b) Capital Lease
Obligations incurred by the Borrower and its consolidated Subsidiaries (other
than Unrestricted Subsidiaries) during such period (other than Capital Lease
Obligations permitted by Section 6.01(a)(vi)).
"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.
"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase or subscribe for any of
the foregoing, or any warrants, rights or options to purchase or subscribe for
any such warrants, rights or options.
"Cash Interest Expense" means, for any period, (a) Consolidated
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Interest Expense for such period, minus (b) the aggregate amount of pay-in-kind
or accreted Consolidated Interest Expense for such period not involving any
payment in cash.
"Change in Control" means (a) the sale or other disposition by AW of
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any Capital Stock of the Borrower prior to the date which is three years from
the Effective Date; (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the
7
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) of shares representing more than 20% of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of the
Borrower; (c) occupation of a majority of the seats (other than vacant seats) on
the board of directors of the Borrower by Persons who were not (i) nominated by
the board of directors of the Borrower, (ii) appointed by directors so nominated
or (iii) members of the Board of Directors on the Closing Date or (iv) appointed
in accordance with the terms of the Stockholders Agreement as in effect on the
date hereof; (d) the acquisition of direct or indirect Control of the Borrower
by any Person or group other than Persons owning Capital Stock of the Borrower
on the date hereof and their Affiliates; or (e) Gerald Vento and Thomas Sullivan
not owning, directly or indirectly, shares representing more than a majority of
the aggregate ordinary voting power represented by the issued and outstanding
Capital Stock of the Borrower; provided, however, that neither (A) the sale by
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AW of all or any of its equity interest in the Borrower subsequent to the date
which is three years from the Effective Date nor (B) the public sale by the
Borrower of newly issued Common Stock in an initial public offering (provided
that the conditions described in clause (e) above do not result therefrom),
shall constitute a Change of Control.
"Change in Law" means (a) the adoption of any law, rule or regulation
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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 Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or Issuing Bank'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 Revolving Loans,
Tranche A Term Loans or Tranche B Term Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment, Tranche
A Commitment or Tranche B Commitment.
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"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
"Collateral" means any and all "Collateral", as defined in any
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applicable Security Document and shall also include the Mortgaged Properties.
"Committed Equity" means irrevocable binding commitments to purchase
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stock of the Borrower pursuant to the Securities Purchase Agreement.
"Commitment" means a Revolving Commitment, Tranche A Commitment or
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Tranche B Commitment, or any combination thereof (as the context requires).
"Common Stock" means the Common Stock, par value $.01 per share, of
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the Borrower, including Common Stock designated as Senior Common Stock, "Class A
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Voting Common Stock", "Class B Non-Voting Common Stock", "Class C Common Stock",
- ------------------- ------------------------------- --------------------
"Class D Common Stock" or "Voting Preference Common Stock".
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"Communications Act" means the Communications Act of 1934, and any
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similar or successor Federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same may be
in effect from time to time.
"Consents to Assignment" has the meaning set forth in subsection
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4.01(r).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
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plus, to the extent deducted in computing such Consolidated Net Income, the sum
of (a) income or franchise tax expense for such period, (b) Consolidated
Interest Expense, (c) depreciation and amortization expense and (d) any non-cash
charges or non-cash losses, minus, to the extent added in computing such
Consolidated Net Income, (i) any non-cash gains or other non-cash items and (ii)
any income tax credits, all as determined on a consolidated basis with respect
to the Borrower and the Subsidiaries (other than the Unrestricted Subsidiaries)
in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the interest
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expense of the Borrower and the Subsidiaries (other than the Unrestricted
Subsidiaries) for
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such period determined on a consolidated basis in accordance with GAAP,
including but not limited to the portion of any payments or accruals with
respect to Capital Lease Obligations that are allocable to interest expense.
"Consolidated Net Income" means, for any period, net income or loss of
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the Borrower and the Subsidiaries (other than the Unrestricted Subsidiaries) for
such period determined on a consolidated basis in accordance with GAAP; provided
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that there shall be excluded (a) the income of any Person in which any other
Person (other than the Borrower or any of the Subsidiaries (other than the
Unrestricted Subsidiaries) or any director holding qualifying shares in
compliance with applicable law) has a joint interest, except to the extent of
the amount of dividends or other distributions (i) that the Borrower or any of
the Subsidiaries (other than the Unrestricted Subsidiaries) has the power to
cause such Person to make to the Borrower or any Subsidiary (other than the
Unrestricted Subsidiaries) during such period and such dividend or other
distribution is not prohibited by the terms of any agreement binding upon such
Person or otherwise or (ii) that, to the extent not already included in
Consolidated Net Income for any period pursuant to clause (i) above, were
actually paid to the Borrower or any of the Subsidiaries (other than the
Unrestricted Subsidiaries) by such Person during such period, (b) any after tax
gains or losses attributable to sales of assets out of the ordinary course of
business and (c) (to the extent not included in clauses (a) or (b) above) any
extraordinary gains or extraordinary losses.
"Contractual Obligations" 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 Equity" means at any time or for any period, (x) the sum
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(without duplication) of (a) $100,084,120, the agreed value of the AW Licenses
set forth on Schedule I to the Securities Purchase Agreement, (b) cash proceeds
from sales by the Borrower of Common Stock and Preferred Stock less any payments
made by the Borrower or any Subsidiary with respect to Common Stock or Preferred
Stock (other than payments of additional Common Stock or Preferred Stock), (c)
cash proceeds from the sale to Lucent of the Series A Bonds (less any payments
made by the
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Borrower or any Subsidiary with respect to the Series A Bonds (other than
payments of additional Series A Bonds)), (d) after consummation of the San Juan
Acquisition, $39,900,000, representing the agreed value of the stock of the
Borrower acquired by AW in connection with the San Juan Acquisition, (e)
$7,347,750, the agreed value of the equity interests in THC contributed to the
Borrower on the Closing Date pursuant to the Securities Purchase Agreement, (f)
after consummation of the THC San Diego Merger, $4,800,000, representing the
agreed value of the stock issued to the existing shareholders of THC San Diego
in connection with the THC San Diego Merger, (g) after consummation of the
Mercury Acquisition, $2,332,645, representing the agreed value of the stock
issued to Mercury PCS in connection with the Mercury Acquisition, (h) after
consummation of the Wireless 2000 Acquisition, $880,000, representing the agreed
value of the stock issued to Wireless 2000, Inc. in connection with the Wireless
2000 Acquisition, (i) after consummation of the LMDS Merger, $3,800,000,
representing the agreed value of the stock of the Borrower issued to the
existing shareholders of Telecorp LMDS Inc. in connection with the LMDS Merger
and (j) the fair market value as reasonably determined by the Administrative
Agent of any other assets contributed to the Borrower in exchange for Capital
Stock of the Borrower minus (y) any amounts (including the fair market value of
any transferred assets, as reasonably determined by the Administrative Agent)
invested by the Borrower or any Restricted Subsidiary in an Unrestricted
Subsidiary.
"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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"Covered Pops" means the aggregate number of Pops within each
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geographic area for which facilities owned by the Borrower or its Restricted
Subsidiaries that provide service to such geographic area have achieved
substantial completion.
"Credit Event" means the making, conversion or continuation of any
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Borrowing or the issuance or extension of any Letter of Credit.
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"Debt Service" means for any period, the sum of (a) Cash Interest
------------
Expense for such period plus (b) scheduled principal amortization of Total Debt
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for such period.
"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, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
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environmental matters disclosed in Schedule 3.06.
"Disqualifying Transaction" has the meaning set forth in the
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Stockholders Agreement.
"dollars" or "$" refers to lawful money of the United States of
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America.
"Effective Date" means the date on which the conditions specified in
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Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
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ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
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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.
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"Equipment Subsidiary" means Telecorp Equipment Leasing L.P. and/or
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any other Wholly Owned Restricted Subsidiary of the Borrower designated as an
Equipment Subsidiary by notice to the Administrative Agent; provided, however,
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that (i) such Restricted Subsidiary has no obligations or liabilities other than
as permitted by Section 3.13, (ii) all the outstanding Capital Stock of such
Restricted Subsidiary is pledged to the Collateral Agent for the benefit of the
Lenders in accordance with the terms of the Pledge Agreement, (iii) the Borrower
and such Restricted Subsidiary have entered into a Special Purpose Subsidiary
Funding Agreement and (iv) such subsidiary has granted to the Administrative
Agent on behalf of the Lenders a first priority perfected security interest in
all its assets.
"Equity Participants" means the entities and individuals listed on
-------------------
Schedule 1.01 hereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"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
-----------
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;
13
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
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
----------------
VII.
"Excess Cash Flow" means, for any period, the sum of (without
----------------
duplication):
(a) Consolidated Net Income for such period, adjusted to exclude any
gains or losses attributable to Prepayment Events; plus
----
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such Consolidated Net Income for such period; plus
----
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such period plus (ii) the amount, if any, by which the
consolidated deferred revenues of the Borrower and its consolidated
Subsidiaries (other than the Unrestricted Subsidiaries) increased during
such period plus (iii) the aggregate principal amount of Capital Lease
Obligations and other Indebtedness incurred during such period to finance
Capital Expenditures, to the extent that mandatory principal payments in
respect of such Indebtedness would not be excluded from clause (f) below
when made; minus
-----
(d) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income (or loss) for such period plus (ii) the amount, if
any, by which Net Working Capital increased during such period plus (iii)
the amount, if any, by which the consolidated deferred revenues of the
Borrower and its consolidated
14
Subsidiaries (other than the Unrestricted Subsidiaries) decreased during
such period; minus
-----
(e) cash Capital Expenditures for such period; minus
-----
(f) the aggregate principal amount of Indebtedness repaid or prepaid
by the Borrower and its consolidated Subsidiaries (other than the
Unrestricted Subsidiaries) during such period, excluding (i) Indebtedness
in respect of Revolving Loans, (ii) Term Loans prepaid pursuant to Section
2.09(b) or (c), (iii) repayments or prepayments of Indebtedness financed by
incurring other Indebtedness, to the extent that mandatory principal
payments in respect of such other Indebtedness would not be excluded from
this clause (f) when made, (iv) Indebtedness which is permitted to be
reborrowed or refinanced pursuant to Section 6.01 and (v) Indebtedness owed
to the Borrower or any Subsidiary; plus
----
(g) to the extent not otherwise included in Consolidated Net Income
for such period, any cash dividends or any other cash distributions paid or
made by, and received by the Borrower or any Restricted Subsidiary from,
any Unrestricted Subsidiary during such period.
"Excluded Assets" means at any time, the collective reference to all
---------------
assets of the Borrower or any Subsidiary (other than the Unrestricted
Subsidiaries) then subject to a Lien permitted by sub-Section 6.02(iii)-(vi).
"Excluded Real Property Assets" means Real Property Assets which
-----------------------------
constitute Excluded Assets.
"Excluded Real Property-Related Equipment" means Real Property-Related
----------------------------------------
Equipment which constitutes Excluded Assets.
"Excluded Taxes" means, with respect to the Issuing Bank, the
--------------
Administrative Agent or any Lender (a) income or franchise Taxes imposed on (or
measured by) its net income 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
15
office is located or any Governmental Authority of or in any of the foregoing
(including, without limitation, minimum Taxes and Taxes computed under
alternative methods, the principal one of which is based on or measured by net
income), (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 is
located or the Issuing Bank, the Administrative Agent or Lender as applicable,
or organized or 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 in effect and
would apply to a payment 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), (d) any Taxes to the extent imposed by reason of
the Issuing Bank, Lender or Administrative Agent, as applicable, engaging in
activities in the jurisdiction imposing the Tax that are unrelated to the
transactions contemplated hereby and (e) any Tax that would not have been
imposed but for the failure of a Lender or the Administrative Agent, as
applicable, to comply with the certification requirements described in Section
2.15(e).
"Expansion Facility Amendment" means an amendment to this Agreement
----------------------------
which contains the procedures for borrowing Expansion Term Loans, the
administrative information of the Lenders of such Expansion Loans and other
matters which have no adverse impact on any Lender, which amendment shall be in
form and substance satisfactory to the Administrative Agent.
"Expansion Term Loans" shall have the meaning assigned thereto in
--------------------
Section 2.18.
"Extended Payment Terms Facility" means the agreement between the
-------------------------------
Borrower and Lucent pursuant to which Lucent has agreed to permit the Borrower
to defer payment on all equipment and services purchased from Lucent by the
Borrower until the earlier of (a) September 30, 1998 and (b) the Closing Date.
16
"FCC" means the Federal Communications Commission, or any other
---
similar or successor agency of the Federal government administering the
Communications Act.
"FCC Debt" means Indebtedness owed to the United States Treasury
--------
Department that is incurred in connection with the acquisition of a License.
"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 (a) Debt Service, (b) Capital Expenditures, (c)
-------------
Taxes and (d) dividends and distributions paid pursuant to Section 6.08(a)(iii).
"Foreign Lender" means any Lender or Issuing Bank that is organized
--------------
under the laws of a jurisdiction other than that in which the Borrower is
located. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
------------------
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"Funded Debt" means, as of the date of determination, all Indebtedness
-----------
for borrowed money of the Borrower and its Restricted Subsidiaries which by its
terms matures more than one year after the date of calculation, and any such
Indebtedness maturing within one year from such date which is renewable or
extendable at the option of the
17
obligor to a date more than one year from such date including, in any event, the
Revolving Loans.
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement with respect to
-------------------
the Obligations substantially in the form of Exhibit C, made by the Subsidiary
Loan Parties in favor of the Administrative Agent for the benefit of the Secured
Parties.
"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
18
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, (a) all
------------
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) 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
and, in the case of property or services purchased pursuant to vendor financing
agreements, accounts payable which are not overdue by more than 30 days if such
accounts are being contested in good faith by the Borrower), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnity, Subrogation and Contribution Agreement" means the
-------------------------------------------------
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit F, among the Borrower and the Subsidiary Loan Parties.
19
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Information Memorandum" means the Confidential Information Memorandum
----------------------
dated May 1998 relating to the Borrower and the Transactions.
"Initial Equity Contributions" means (i) AW's contribution to the
----------------------------
Borrower of 20 MHz of A or B Block PCS licenses covering the markets and Pops
set forth in Part A of Schedule 3.14 hereto (the "AW Licenses") in exchange for
66,722 shares of Series A Preferred Stock, 34,292 shares of Series D Preferred
Stock, and 33,360 shares of Series F Preferred Stock, (ii) purchases of 124,525
shares (or 129,525 shares if the Supplemental Closing (as defined in the
Securities Purchase Agreement) occurs) of Common Stock and 128,000 shares (or
133,000 shares if the Supplemental Closing occurs) of Series C Preferred Stock
of the Borrower by other investors for cash consideration and irrevocable
commitments of not less than $128,000,000, or, if the Supplemental Closing
occurs, not less than $133,000,000, pursuant to the Securities Purchase
Agreement, (iii) the contribution by the existing shareholders of THC of all
their right, title and interest in the equity of THC to the Borrower in exchange
for Common Stock and Preferred Stock with the result that THC becomes a wholly
owned subsidiary of the Borrower and the Borrower thereby indirectly acquires
Licenses covering the markets and Pops set forth in Part B of Schedule 3.14
hereto,(iv) if the San Juan Acquisition occurs prior to or on the Closing Date,
the contribution by AW of 20 MZ of A Block PCS Licenses covering the markets and
pops set forth in Part D of Schedule 3.14 hereto together with related assets
for approximately $55,000,000 in cash, $2,400,000 in additional Common Stock,
and $37,500,000 in additional Preferred Stock and, in connection therewith, the
purchase by third party investors of additional Common Stock and additional
Preferred Stock for cash consideration of not less than $39,700,000 and (v) if
the THC San Diego Merger occurs prior to or on the Closing Date, the
contributions, purchases and stock issuances described in the definition of "THC
San Diego Merger".
"Initial Pops" means the aggregate number of Pops covered by the
------------
Licenses set forth in Parts A and B of Schedule 3.14 hereto.
20
"Intercompany THC Loans" means loans made by the Borrower to THC
----------------------
evidenced by a promissory note pledged to the Administrative Agent on behalf of
the Lenders pursuant to the Pledge Agreement the proceeds of which are used by
THC to repay FCC Debt of THC.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.05.
"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.
"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
(or, with the consent of each Lender, nine or twelve 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.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as an
------------
issuer of Letters of Credit hereunder, and any successor Issuing Bank appointed
pursuant to Section 2.19(i). Each Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by
21
Affiliates of such Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Issuing Bank Fees" shall have the meaning assigned to such term in
-----------------
Section 2.10(c).
"L/C Commitment" shall mean, with respect to any Issuing Bank, the
--------------
commitment of such Issuing Bank to issue Letters of Credit pursuant to Section
2.19.
"L/C Disbursement" means a payment made by an Issuing Bank pursuant to
----------------
a Letter of Credit.
"L/C Exposure" means, at any time, the sum of (a) the aggregate
------------
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
----
aggregate amount of all L/C Disbursements that have not yet been reimbursed by
or on behalf of the Borrower at such time.
"L/C Participation Fee" shall have the meaning assigned to such term
---------------------
in Section 2.10(c).
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance or pursuant to Section 2.18 hereof, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"Leverage Ratio" means for any fiscal period, the ratio of (a) Total
--------------
Debt on the last day of such fiscal period to (b) Annualized EBITDA for the
period ending on the last day of such fiscal period.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of Dow Jones Market (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
22
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 "LIBO Rate" with respect to 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 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.
"License" means any broadband Personal Communications Services license
-------
issued by the FCC in connection with the operation of a System.
"License Subsidiary" means Telecorp PCS, L.L.C. and THC and/or any
------------------
other Wholly Owned Restricted Subsidiary of the Borrower designated as a License
Subsidiary by notice to the Administrative Agent; provided, however, that (i)
-------- -------
such Restricted Subsidiary has no obligations or liabilities other than as
permitted by Section 3.13, (ii) all the outstanding Capital Stock of such
Restricted Subsidiary is pledged to the Collateral Agent for the benefit of the
Lenders in accordance with the terms of the Pledge Agreement and (iii) the
Borrower and such Restricted Subsidiary have entered into a Special Purpose
Subsidiary Funding Agreement.
"License Related Assets" means assets directly associated with the
----------------------
License that is the subject of a License Swap and which constitute part of the
System to be constructed to serve the MTA or BTA covered by such License.
"License Swap" means (i) any exchange, with another Person (other than
------------
an Unrestricted Subsidiary), of a License or Licenses owned by the Borrower
and/or any Restricted Subsidiary, for a License or Licenses owned by such other
Person or (ii) any sale (other than to an Unrestricted Subsidiary) of a License
or Licenses owned by the Borrower and/or any Restricted Subsidiary and the use
of the Net Proceeds received therefrom to purchase a License or Licenses owned
by another Person (other than an Unrestricted Subsidiary); provided, that, (i)
-------- ----
such purchase occurs not more than 180 days following such sale and either (x)
the
23
Borrower or such Restricted Subsidiary deposits the Net Proceeds received
therefrom in a cash collateral account with the Administrative Agent (who, at
the request of the Borrower, will invest such proceeds in Permitted Investments)
pending such purchase or (y) the Borrower notifies the Administrative Agent
(prior to or simultaneously with such sale) that such sale is part of a License
Swap and repays outstanding Revolving Loans with the Net Proceeds received from
such sale pending the related purchase, (ii) to the extent the Net Proceeds
received from such sale are not used to make a purchase described above, such
sale shall constitute a Prepayment Event rather than a License Swap and the Net
Proceeds therefrom shall be applied in accordance with Section 2.09(b) and (iii)
any License Swap involving an Affiliate of the Borrower must be approved by the
Administrative Agent.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"LMDS Merger" means the merger of TeleCorp LMDS, Inc. into THC and in
-----------
connection therewith the issuance of $3.8 million of stock to the existing
shareholders of TeleCorp LMDS Inc. and the acquisition by THC of 1150 MHz of
Block A or 150 MHz of Block B Licenses for the markets set forth in Part E of
Schedule 3.14 hereto; provided that, such acquisition is consummated on terms
and conditions satisfactory to the Administrative Agent.
"Loan Documents" means this Agreement, the Letters of Credit, the
--------------
Guarantee Agreement, the Pledge Agreement, the Security Agreement, the
Indemnity, Subrogation and Contribution Agreement, the Special Purpose
Subsidiary Funding Agreements, the Consents to Assignment and the other Security
Documents.
"Loan Parties" means the Borrower and the Subsidiary Loan Parties.
------------
24
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Lucent" means Lucent Technologies Inc.
------
"Lucent Note Purchase Agreement" means the Note Purchase Agreement
------------------------------
between the Borrower and Lucent dated May 11, 1998.
"Management Agreement" means the Management Agreement between TeleCorp
--------------------
Management Corp. and the Borrower in the form attached as Exhibit A to the
Securities Purchase Agreement as the same may be amended in accordance with
Section 6.11.
"Master Lease" means the Master Lease, substantially in the form of
------------
Exhibit G, among the Borrower, certain of the Restricted Subsidiaries and the
Equipment Subsidiary.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, results of operations, prospects or financial condition of the
Borrower and the Restricted Subsidiaries taken as a whole, (b) the ability of
any Loan Party to perform any of its obligations under any Loan Document or (c)
the validity or enforceability of any Loan Document or the rights of or remedies
available to the Administrative Agent or the Lenders under any Loan Document;
provided that, on or after the date which is five years from the Effective Date,
- --------
neither (x) the nonrenewal of the Network License Agreement by AW nor (y) the
termination of the Network License Agreement by AW in accordance with its terms
as a result of a Disqualifying Transaction shall be a Material Adverse Effect.
"Material Indebtedness" means Indebtedness (other than the Loans), or
---------------------
obligations in respect of one or more Hedging Agreements, of any one or more of
the Borrower and the Restricted Subsidiaries in an aggregate principal amount
exceeding $5,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any Restricted
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 Restricted Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
25
"Mercury Acquisition" means the purchase by the Borrower from Mercury
-------------------
PCS, Inc. of 10 MHz of F Block PCS Licenses for the Baton Rouge, Houma, Hammond,
and Lafayette, Louisiana BTAs together with related assets for approximately
$2.3 million of stock of the Borrower and in connection therewith the assumption
of $4,101,456 of FCC Debt; provided that, such acquisition is consummated on
terms and conditions satisfactory to the Administrative Agent.
"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
satisfactory in form and substance to the Administrative Agent.
"Mortgaged Property" means, initially, each interest in real property
------------------
and any improvements thereto owned by a Loan Party and identified on Schedule
3.22, and includes each interest in real property and any improvements thereto
with respect to which a Mortgage is granted pursuant to Section 5.12 or 5.13.
"MTA" means a Major Trading Area, as defined in 47 C.F.R. (S)24.202.
---
"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
Restricted 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 Restricted Subsidiaries as a result
of such event to repay Indebtedness (other than Loans) secured by such asset or
26
otherwise subject to mandatory prepayment as a result of such event, and (iii)
the amount of all taxes paid (or reasonably estimated to be payable) by the
Borrower and the Restricted Subsidiaries, and the amount of any reserves
established (and not reversed) by the Borrower and the Restricted Subsidiaries
to fund contingent liabilities reasonably estimated to be payable, in each case
that are directly attributable to such event (as determined reasonably and in
good faith by the chief financial officer of the Borrower).
"Network" has the meaning set forth in the first recital.
-------
"Network License Agreement" means the Network Membership License
-------------------------
Agreement dated as of the date hereof, between AT&T Corp. and the Borrower, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 6.11.
"Net Working Capital" means, at any date, (a) the consolidated current
-------------------
assets of the Borrower and its consolidated Subsidiaries (other than the
Unrestricted Subsidiaries) as of such date (excluding cash and Permitted
Investments) minus (b) the consolidated current liabilities of the Borrower and
its consolidated Subsidiaries (other than the Unrestricted Subsidiaries) as of
such date (excluding current liabilities in respect of Indebtedness). Net
Working Capital at any date may be a positive or negative number. Net Working
Capital increases when it becomes more positive or less negative and decreases
when it becomes less positive or more negative.
"Obligations" has the meaning assigned to such term in the Guarantee
-----------
Agreement and the Security Documents.
"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.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
27
"PCS Documents" means the Securities Purchase Agreement and each of
-------------
the documents that is an exhibit thereto (including the Network License
Agreement).
"Perfection Certificate" means a certificate in the form of Annex 2 to
----------------------
the Security Agreement or any other form approved by the Administrative Agent.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes 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 60 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 and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements;
(d) 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;
(e) liens of attachments, judgments or awards in respect of judgments
that do not constitute an Event of Default under clause (k) of Article VII
and in respect of which adequate reserves have been established in
accordance with GAAP;
(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 Restricted
Subsidiary;
28
(g) restrictions on the transfer of assets contained in any License or
imposed by the Communications Act or comparable state legislation enacted
after the date hereof;
(h) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower and its Restricted
Subsidiaries taken as a whole and any interest or title of a lessor under
any lease not prohibited by this Agreement;
(i) ground leases in respect of real property on which facilities
owned or leased by the Borrower or its Restricted Subsidiaries are located;
(j) Liens in favor of a lessor arising from precautionary Uniform
Commercial Code financing statements filed by such lessor with respect to
assets leased by the Borrower or any Restricted Subsidiary pursuant to an
operating lease not prohibited by this Agreement; provided that such Lien
--------
shall not apply to any other property or asset of the Borrower or any
Restricted Subsidiary.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has
29
a combined capital and surplus and undivided profits of not less than
$500,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 90 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"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" shall mean the Pledge Agreement, substantially in
----------------
the form of Exhibit D, between the Borrower, the Subsidiary Loan Parties and the
Administrative Agent for the benefit of the Secured Parties.
"Pops" means, as of any date, with respect to any BTA or MTA, the
----
population of such BTA or MTA as set forth in the Donnelly Marketing Service
Population Guide published in 1995.
"Preferred Stock" means the Series A Preferred Stock, the Series B
---------------
Preferred Stock, the Series C Preferred Stock, the Series D Preferred Stock, the
Series E Preferred Stock and the Series F Preferred Stock.
"Prepayment Event" means:
----------------
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower or
any Restricted Subsidiary, other than (i) dispositions described in clauses
(a), (b) and (d) of Section 6.06 and (ii) other dispositions resulting in
aggregate Net Proceeds not exceeding $1,000,000 during any fiscal year of
the Borrower; or
30
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of the Borrower or any Restricted Subsidiary; provided that, if no
--------
Default exists or would result therefrom, such event shall constitute a
Prepayment Event only to the extent that the Net Proceeds therefrom have
not been applied, or the Borrower or any Restricted Subsidiary has not
entered into a binding contractual agreement to apply such Net Proceeds, to
repair, restore or replace such property or asset within 270 days after
such event; or
(c) the issuance by the Borrower or any Restricted Subsidiary of any
equity securities, or the receipt by the Borrower or any Restricted
Subsidiary of any capital contribution, other than, in the case of Borrower
or any Restricted Subsidiary, any such issuance of equity securities to, or
receipt of any such capital contribution from the Borrower or a Restricted
Subsidiary; provided that none of the following shall constitute a
--------
Prepayment Event (i) the initial $128,000,000 (or, if the Supplemental
Closing (as defined in the Securities Purchase Agreement) occurs, the
initial $133,000,000) contribution and commitment of capital to the
Borrower pursuant to the Securities Purchase Agreement, (ii) the issuance
of $39,900,000 of Common Stock and Preferred Stock to AW and $39,700,000 of
Common Stock and Preferred Stock to certain of the Equity Participants in
connection with the San Juan Acquisition, (iii) the issuance of $4,000,000
of stock to the existing stockholders of THC San Diego and $41,000,000 of
stock to certain of the Equity Participants in connection with the THC San
Diego Merger and (iv) any issuance or receipt if, after giving effect to
such issuance or receipt (x) Senior Leverage would be less than 5.00 to
1.00 and (y) the Borrower would be in Pro Forma Compliance; or
(d) the incurrence by the Borrower or any Restricted Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 6.01; provided
--------
that (i) no such incurrence shall constitute a Prepayment Event if, after
giving effect to such incurrence Senior Leverage would be less than 5.00 to
1.00 and (ii) the foregoing shall not relieve the Borrower from any
31
requirement hereunder to obtain the consent of the Lenders for the
incurrence of any Indebtedness.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank 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.
"Pro Forma Compliance" shall exist if (a) the Borrower shall be in pro
-------------------- ---
forma compliance with the covenants set forth in Section 6.12 recomputed, with
- -----
respect to income statement items, as of the last day of the most recently ended
fiscal quarter for which financial statements have been delivered in accordance
with subsection 5.01 as if the events with respect to which Pro Forma Compliance
is being measured had occurred on the first day of the twelve-month period
ending on such last day of the most recently ended fiscal quarter for which
financial statements have been delivered and as if Restricted Payments under
Section 6.08(a)(iii) were deductions to EBITDA and (b) no Default or Event of
Default shall exist either immediately prior to the events with respect to which
Pro Forma Compliance is being determined or after giving effect to such events.
"Pro Rata Percentage" of any Revolving Lender at any time means the
-------------------
percentage of the Total Revolving Commitment represented by such Lender's
Revolving Commitment.
"Real Property Assets" means all interests (including leasehold
--------------------
interests) of the Borrower and its Restricted Subsidiaries in real property.
"Real Property-Related Equipment" means all equipment (as defined in
-------------------------------
the UCC) of the Borrower or any Restricted Subsidiary that constitutes a fixture
(as defined in the UCC) on Real Property Assets, excluding Base Stations.
"Real Property Subsidiary" means Telecorp Realty L.L.C. and/or any
------------------------
Wholly Owned Restricted Subsidiary of the Borrower designated by the Borrower as
the Real Property Subsidiary by notice to the Administrative Agent; provided,
--------
however, that (i) such Restricted Subsidiary has no
- -------
32
obligations or liabilities other than as permitted by Section 3.13, (ii) all the
outstanding Capital Stock of such Restricted Subsidiary is pledged to the
Collateral Agent for the benefit of the Lenders in accordance with the terms of
the Pledge Agreement and (iii) the Borrower and such Restricted Subsidiary have
entered into a Special Purpose Subsidiary Funding Agreement.
"Register" has the meaning set forth in Section 9.04.
--------
"Related Business" means any business of the type conducted by the
----------------
Borrower and its Restricted Subsidiaries on the Effective Date or any business
contemplated to be conducted by the Borrower and its Restricted Subsidiaries in
the business plan delivered to the Lenders prior to the date hereof and any
business reasonably related thereto (including the business contemplated to be
conducted by the Borrower by (S) 7.11(b) of the Stockholders Agreement, subject
to the conditions therein).
"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, at any time, Lenders having Revolving
----------------
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time; provided, however, that for purposes of requesting the
-------- -------
Administrative Agent to terminate Commitments during an Event of Default
pursuant to Article VII, Required Lenders shall mean, Lenders having Revolving
Commitments and unused Tranche A Commitments representing more than 50% of the
sum of the aggregate Revolving Commitments and unused Tranche A Commitments at
such time.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws, the partnership agreement or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination, judgment, writ, injunction, decree or order of an arbitrator or a
court or 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 subject.
33
"Resale Agreement" means the Resale Agreement between AW and the
----------------
Borrower in the form attached as an exhibit to the Securities Purchase
Agreement, as the same may be amended, supplemented or otherwise modified from
time to time in accordance with Section 6.11.
"Responsible Officer" means any of the president, chief executive
-------------------
officer or chief financial officer of the Borrower.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Restricted Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancelation or termination of any such shares of capital stock of
the Borrower or any Restricted Subsidiary or any option, warrant or other right
to acquire any such shares of capital stock of the Borrower or any Restricted
Subsidiary.
"Restricted Subsidiary" means any Subsidiary of the Borrower not
---------------------
designated as an Unrestricted Subsidiary.
"Revolving Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Revolving Loans 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 Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable. The initial aggregate amount of the Lenders' Revolving Commitments
is $150,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
------------------
the sum of the outstanding principal
34
amount of such Lender's Revolving Loans plus the aggregate amount at such time
of such Lender's L/C Exposure.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
----------------
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (c) of Section
--------------
2.01.
"Revolving Maturity Date" means the date which is eight and one-half
-----------------------
years from the Effective Date.
"Roaming Agreement" means the Intercarrier Roamer Service Agreement
-----------------
between AW and the Borrower in the form attached as an exhibit to the Securities
Purchase Agreement, as the same may be amended, supplemented or otherwise
modified from time to time in accordance with Section 6.11.
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-
---
Hill Companies, Inc.
"San Diego Swap" means the exchange of all or a portion of the
--------------
Licenses acquired by the Borrower in the THC San Diego Merger for Licenses of
another Person covering certain MTAs or BTAs in the State of Connecticut.
"San Juan Acquisition" means the merger of Puerto Rico Acquisition
--------------------
Corp. into the Borrower and the purchase by the Borrower from AW of 20 MHz of A
Block PCS licenses covering the markets and pops set forth in Part D of Schedule
I hereto together with related assets for approximately $55,000,000 in cash,
$2,400,000 in additional Common Stock, and $37,500,000 in additional Preferred
Stock; provided that, (i) such acquisition is consummated on terms and
--------
conditions satisfactory to the Administrative Agent and (ii) in connection
therewith, certain of the Equity Participants, or other investors reasonably
acceptable to the Administrative Agent, purchase from the Borrower Common Stock
and Preferred Stock for cash consideration of at least $39,700,000.
"Secured Parties" has the meaning assigned to such term in the
---------------
Security Agreement.
"Secured Real Property Assets" means all Real Property Assets
----------------------------
(including Mortgaged Properties) in which
35
the Administrative Agent, for the benefit of the Secured Parties, has a first
priority perfected Mortgage or other first priority perfected security interest
pursuant to the Security Documents.
"Secured Real Property-Related Equipment" means Real Property-Related
---------------------------------------
Equipment in which the Administrative Agent, for the benefit of the Secured
Parties, has a first priority perfected security interest pursuant to the
Security Documents.
"Securities Purchase Agreement" means the Securities Purchase
-----------------------------
Agreement by and among AW, the Borrower and the other parties thereto dated as
of January 23, 1998, including the schedules thereto.
"Security Agreement" means the Security Agreement among the Borrower,
------------------
the Subsidiary Loan Parties and the Administrative Agent, substantially in the
form of Exhibit E.
"Security Documents" means the Security Agreement, the Pledge
------------------
Agreement, the Mortgages and the Consents to Assignment and each other security
agreement or other instrument or document executed and delivered pursuant to any
of the foregoing or Section 5.12 or 5.13 to secure any of the Obligations.
"Senior Debt" shall mean all Indebtedness of the Borrower and the
-----------
Restricted Subsidiaries on a consolidated basis other than the Subordinated
Debt.
"Senior Leverage" means, on any date, the ratio of (a) Senior Debt on
---------------
such date to (b) Annualized EBITDA for the most recently ended fiscal quarter
for which financial statements have been delivered in accordance with Section
5.01.
"Series A Bonds" means the Series A Bonds of the Borrower purchased by
--------------
Lucent pursuant to the Lucent Note Purchase Agreement.
"Series A Preferred Stock" means the Series A Preferred Stock, par
------------------------
value $.01 per share, of the Borrower.
36
"Series B Bonds" means the Series B Bonds of the Borrower purchased by
--------------
Lucent pursuant to the Lucent Note Purchase Agreement.
"Series B Preferred Stock" means the Series B Preferred Stock, par
------------------------
value $.01 per share, of the Borrower.
"Series C Preferred Stock" means the Series C Preferred Stock, par
------------------------
value $.01 per share, of the Borrower.
"Series D Preferred Stock" means the Series D Preferred Stock, par
------------------------
value $.01 per share, of the Borrower.
"Series E Preferred Stock" means the Series E Preferred Stock, par
------------------------
value $.01 per share, of the Borrower.
"Series F Preferred Stock" means the Series F Preferred Stock, par
------------------------
value $.01 per share, of the Borrower.
"Special Purpose Subsidiary" means each License Subsidiary, the
--------------------------
Equipment Subsidiary, and the Real Property Subsidiary.
"Special Purpose Subsidiary Funding Agreement" means an agreement
--------------------------------------------
between the Borrower and Telecorp Communications, Inc. and each Special Purpose
Subsidiary whereby (a) such Special Purpose Subsidiary agrees to provide to the
Borrower the benefit of the use of such Special Purpose Subsidiary's assets, (b)
the Borrower agrees to pay to such Special Purpose Subsidiary an amount equal to
all liabilities of such Special Purpose Subsidiary less any amounts contributed
by the Borrower to the equity of such Special Purpose Subsidiary for the purpose
of paying such liabilities (provided, that with respect to the Equipment
Subsidiary such payments may be in the form of payments under leases), (c) the
Borrower agrees to cause all Contractual Obligations of such Special Purpose
Subsidiary to be performed and all Requirements of Law of such Special Purpose
Subsidiary to be complied with and (d) the Borrower and such Special Purpose
Subsidiary agree, for the benefit of the Administrative Agent and the Secured
Parties, to the assignment by each of its rights thereunder to the
Administrative Agent for the benefit of the Secured Parties.
"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
37
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 the Administrative Agent is subject for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in 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.
"Stockholders Agreement" means the Stockholders' Agreement among AW,
----------------------
the Borrower and the other parties thereto dated as of the date hereof.
"Subordinated Debt" means high yield subordinated debt issued by the
-----------------
Borrower (other than the Series A Bonds and the Series B Bonds) on terms
reasonably acceptable to the Required Lenders maturing on a date that is not
earlier than the date which is six months subsequent to the Tranche B Maturity
Date with a minimum initial public offering or purchase price of $220,000,000
and the Indebtedness represented thereby and refinancings of such Indebtedness;
provided that (i) any such refinancing Indebtedness (a) shall not have a greater
outstanding principal amount, an earlier maturity date or a decreased weighted
average life than the Subordinated Debt refinanced and (b) shall be subordinated
to the Indebtedness created under the Loan Documents to at least the extent of,
and shall otherwise be issued on terms no less favorable to the Lenders than,
the Subordinated Debt refinanced and (ii) the proceeds of such refinancing
Indebtedness shall be used solely to repay the Subordinated Debt refinanced
thereby and fees and expenses in connection therewith.
"Subordinated Debt Documents" means the indenture under which the
---------------------------
Subordinated Debt, if any, is issued and all other instruments, agreements and
other documents evidencing or governing the Subordinated Debt, if any, or
providing for any Guarantee or other right in respect thereof.
38
"Subscribers" means as of any date, all customers then receiving
-----------
Wireless Services from the Borrower or any of its Restricted Subsidiaries none
of the subscriber payments (other than those disputed in good faith by such
customer) of which are, as of such date, past due more than (x) prior to March
31, 1999, 90 days and (y) after March 31, 1999, 60 days (or past due for more
than such shorter period of time as the Borrower may have established for
accounting or credit policy purposes for treating a customer as not being in
good standing).
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
----------
"Subsidiary Loan Party" means any Restricted Subsidiary that is not a
---------------------
Foreign Subsidiary.
"Swap of License Related Assets" means (i) any exchange in connection
------------------------------
with a License Swap, with any Person (other than an Unrestricted Subsidiary), of
License Related Assets owned by the Borrower and/or any Restricted Subsidiary,
for License Related Assets owned by such other Person or (ii) any sale (other
than to an Unrestricted Subsidiary) of License Related Assets owned by the
Borrower and/or any Restricted Subsidiary in connection with a License Swap and
the use of the Net Proceeds received therefrom to purchase License Related
Assets owned by another Person (other than an Unrestricted Subsidiary) in
connection therewith; provided, that, (i) such purchase occurs not more than 180
-------- ----
days following such sale and either (x) the Borrower or such Restricted
Subsidiary deposits the
39
Net Proceeds received therefrom in a cash collateral account with the
Administrative Agent pending such purchase or (y) the Borrower notifies the
Administrative Agent (prior to or simultaneously with such sale) that such sale
is part of a Swap of License Related Assets and repays outstanding Revolving
Loans with the Net Proceeds received from such sale pending the related purchase
and (ii) to the extent the Net Proceeds received from such sale are not used to
make a purchase described above, such sale shall constitute a Prepayment Event
rather than a Swap of License Related Assets and the Net Proceeds therefrom
shall be applied in accordance with Section 2.09(b).
"System" means, as to any Person, assets constituting a radio
------
communications system authorized under the rules for wireless communications
services (including any license and the network, marketing, distribution, sales,
customer interface and operations functions relating thereto) owned and operated
by such Person.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means Tranche A Term Loans and Tranche B Term Loans.
----------
"THC" means TeleCorp Holding Corp., Inc., a Delaware corporation and
---
an Subsidiary of the Borrower.
"THC San Diego" means THC of San Diego, Inc., a Delaware corporation.
-------------
"THC San Diego Merger" means the merger of THC San Diego into THC and
--------------------
in connection therewith the issuance by the Borrower of approximately $4.8
million of stock to the existing stockholders of THC San Diego and the
contribution to wholly owned subsidiaries of the Borrower by THC San Diego of a
10 MHz F Block PCS License for the San Diego, BTA and certain related assets;
provided that such merger is consummated on terms and conditions satisfactory to
- --------
the Administrative Agent.
"Total Capital" means, at any date, the sum, without duplication, of
-------------
(a) Funded Debt outstanding on such date plus (b) Contributed Equity on such
----
date plus (c) Committed Equity on such date.
40
"Total Debt" shall mean, at any time, all Indebtedness of the Borrower
----------
and the Restricted Subsidiaries as determined on a consolidated basis in
accordance with GAAP.
"Total Revolving Commitment" means, at any time, the aggregate amount
--------------------------
of the Revolving Commitments, as in effect at such time.
"Tranche A Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the third anniversary of the
Effective Date and the date of termination of the Tranche A Commitments.
"Tranche A Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche A Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
A Term 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 A Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche A Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche A Commitments is $150,000,000.
If on the second anniversary of the Closing Date the aggregate unused Tranche A
Commitments exceed $50,000,000, the aggregate Tranche A Commitments will be
automatically reduced on such date by the amount of such excess.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
----------------
outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means the date that is eight and one-half
-----------------------
years from the Effective Date.
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
-------------------
Section 2.01.
"Tranche B Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche B Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
B
41
Term 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 B Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche B Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche B Commitments is $225,000,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment or an
----------------
outstanding Tranche B Term Loan.
"Tranche B Maturity Date" means the date that is nine and one-half
-----------------------
years from the Effective Date.
"Tranche B Rate" means, with respect to any Tranche B Term Loan (a)
--------------
2.25% per annum, in the case of an ABR Loan, and (b) 3.25% per annum, in the
case of a Eurodollar Loan; provided, however, that in the event that within
-------- -------
twelve months of the Closing Date the Borrower effects an issuance of
Subordinated Debt with an initial public offering or purchase price which,
together with the outstanding principal amount (after giving effect to any
prepayments of the Series B Bonds made with the proceeds of such Subordinated
Debt) of the Series B Bonds, exceeds $220,000,000, the Tranche B Rate will be
reduced by 25 basis points.
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of
-------------------
Section 2.01.
"Transactions" means (a) the execution, delivery and performance by
------------
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans and the use of the proceeds thereof requests for issuances of
Letters of Credit, (b) the execution, delivery and performance by each Loan
Party of the Subordinated Debt Documents, if any, to which it is to be a party,
the issuance of the Subordinated Debt, if any, and the use of the proceeds
thereof, (c) the Initial Equity Contributions, (d) the Supplemental Closing (as
defined in the Securities Purchase Agreement), if any, and (e) the purchase by
the Borrower and sale by AW of 10 MHz of D Block licenses covering the markets
and pops set forth in Part C of Schedule 3.14 hereto for $21,000,000 in cash.
42
"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 LIBO Rate or the Alternate
Base Rate.
"UCC" mean the Uniform Commercial Code of the State of New York.
---
"Unrestricted Subsidiary" means any subsidiary of the Borrower or any
-----------------------
other direct or indirect investment by the Borrower in the Capital Stock of any
other person so long as (a) at the time such subsidiary is acquired or created
or such investment is made (i) no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (ii) the Borrower shall
have notified the Administrative Agent of its acquisition or creation of such
subsidiary or its making of such investment and its ownership interest therein
and its designation thereof as an Unrestricted Subsidiary concurrently with such
acquisition, creation or investment and the intended purposes of such subsidiary
or investment, (iii) all transactions related thereto shall be consummated in
accordance with applicable laws, (iv) the Borrower shall be in Pro Forma
Compliance and (b) at all times (i) neither the Borrower nor any Restricted
Subsidiary shall have any contingent liability in respect thereof (other than
any contingent tax liabilities in respect of which there shall exist a tax
sharing agreement with the other owners of such Unrestricted Subsidiary
providing for an allocation of tax liabilities and benefits customary in similar
circumstances), (ii) any management or service provided by the Borrower or any
Restricted Subsidiary to such subsidiary or investment shall be provided in
consideration of cash remuneration in an amount not less than could have been
obtained from a third party on an arms'-length basis and (iii) such subsidiary
or investment shall be capitalized solely from (A) capital contributed to the
Borrower specifically for such purpose and not required to be contributed to the
Borrower pursuant to the Securities Purchase Agreement in an aggregate amount
for all such Unrestricted Subsidiaries not to exceed $50,000,000 to be
substantially contemporaneously contributed by the Borrower to such Unrestricted
Subsidiary or used to effect its acquisition, as the case may be, (B)
investments by persons other than the Borrower or any Restricted Subsidiary and
(C) the proceeds of Indebtedness
43
of persons other than the Borrower or any Restricted Subsidiary.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
-----------------------
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the equity, 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such Person or one or
more wholly owned subsidiaries of such Person or by such Person and one or more
wholly owned subsidiaries of such Person.
"Wireless 2000 Acquisition" means the purchase by the Borrower from
-------------------------
Wireless 2000, Inc. of 15 MHz of C Block PCS Licenses for the Monroe, Alexandria
and Lake Charles Louisiana BTAs for approximately $880,000 of stock of the
Borrower and in connection therewith the assumption of $7,000,000 of FCC Debt;
provided that, such acquisition is consummated on terms and conditions
satisfactory to the Administrative Agent.
"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.
"Wireless Services" means broadband personal communications services
-----------------
provided in one or more Systems (including cellular services provided on the 850
MHZ band to the extent such services constitute a Related Business).
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
----
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
- -----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
----
Borrowing").
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",
44
"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 and
contract rights.
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.
45
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
------------
forth herein, each Lender agrees, severally and not jointly, (a) to make up to
ten Tranche A Term Loans to the Borrower during the Tranche A Availability
Period in an aggregate principal amount not exceeding its Tranche A Commitment,
(b) to make Tranche B Term Loans to the Borrower on the Effective Date in a
principal amount not exceeding its Tranche B Commitment and (c) to make
Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans. Amounts
repaid or prepaid in respect of Term 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 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 Revolving Borrowing and Term
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) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an
46
aggregate amount that is an integral multiple of $1,000,000 and not less than
$2,000,000; provided that an ABR Revolving Borrowing may be in an aggregate
--------
amount that is equal to the entire unused balance of the total Revolving
Commitments. 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
--------
10 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 if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, Tranche A Maturity Date or Tranche B Maturity
Date, as applicable.
(e) If the Issuing Bank shall not have received from the Borrower the
payment required to be made by Section 2.19(e) within the time specified in such
Section, such Issuing Bank will promptly notify the Administrative Agent of the
L/C Disbursement and the Administrative Agent will promptly notify each
Revolving Lender of such L/C Disbursement and its Pro Rata Percentage thereof.
Each Revolving Lender shall pay by wire transfer of immediately available funds
to the Administrative Agent not later than 3:00 p.m., New York City time, on
such date (or, if such Revolving Lender shall have received such notice later
than 12:00 (noon), New York City time, on any day, not later than 10:00 a.m.,
New York City time, on the immediately following Business Day), an amount equal
to such Lender's Pro Rata Percentage of such L/C Disbursement (it being
understood that such amount shall be deemed to constitute an ABR Revolving Loan
of such Lender and such payment shall be deemed to have reduced the L/C
Exposure), and the Administrative Agent will promptly pay to the Issuing Bank
amounts so received by it from the Revolving Lenders. The Administrative Agent
will promptly pay to the Issuing Bank any amounts received by it from the
Borrower pursuant to Section 2.19(e) prior to the time that any Revolving Lender
makes any payment pursuant to this paragraph (e); any such amounts received by
the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Revolving Lenders that shall have made such payments
and to the Issuing Bank, as their interests may appear. If any Revolving Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower
47
severally agree to pay interest on such amount, for each day from and including
the date such amount is required to be paid in accordance with this paragraph to
but excluding the date such amount is paid, to the Administrative Agent for the
account of the Issuing Bank at (i) in the case of the Borrower, a rate per annum
equal to the interest rate applicable to Revolving Loans pursuant to Section
2.11(a), and (ii) in the case of such Lender, for the first such day, the
Federal Funds Effective Rate, and for each day thereafter, the Alternate Base
Rate.
SECTION 2.03. Requests for Borrowings. To request a Revolving
------------------------
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing. 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 in a form approved by the Administrative
Agent and 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 Revolving Borrowing,
Tranche A Term Borrowing or Tranche B Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(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
48
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
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 Revolving 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 in
New York City and designated by the Borrower in the applicable Borrowing
Request.
(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 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
49
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 Revolving Borrowing and
-------------------
Term 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 Revolving 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 specified for each resulting Borrowing);
50
(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".
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 and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, 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
51
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 and Optional Reduction of Commitments. (a)
--------------------------------------------------
Unless previously terminated, (i) the Tranche A Commitments shall terminate at
5:00 p.m., New York City time, on the last day of the Tranche A Availability
Period, (ii) the Tranche B Commitments shall terminate at 5:00 p.m., New York
City time, on the Effective Date and (iii) the Revolving Commitments and the L/C
Commitments shall terminate on the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the
--------
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $2,000,000 (or, if less, the remaining aggregate
principal amount thereof) and (ii) the Borrower shall not terminate or reduce
the Revolving Commitments if, after giving effect to any concurrent prepayment
of the Revolving Loans in accordance with Section 2.09, the sum of the Revolving
Exposures would exceed the total Revolving Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) 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 notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
--------
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
52
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
-------------------------------------
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date and (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term 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, to the extent permitted by law, 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 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 and the Borrower. 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
53
(or, if such promissory note is a registered note, to such payee and its
registered assigns).
SECTION 2.08. Automatic Revolving Commitment Reductions; Amortization
-------------------------------------------------------
of Term Loans. (a) The aggregate amount of the Lenders' Revolving Commitments
- --------------
shall automatically and permanently reduce in eight consecutive quarterly
reductions occurring on the date that is six years and nine months after the
Effective Date and on each successive date thereafter which is three months
after the preceding reduction date, in the aggregate amount set forth below for
each reduction:
Reduction Amount
--------- ------
1-4 $12,500,000
5-8 $25,000,000
(b) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay Tranche A Term Loans in 18 consecutive quarterly
installments, payable on the date that is four years and three months after the
Effective Date and on each successive date thereafter which is three months
after the preceding installment date, in the aggregate amount set forth below
for each installment:
Installment Amount
----------- ------
1-6 $ 3,750,000
7-10 $ 9,375,000
11-18 $11,250,000
(c) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay Tranche B Term Loans in 22 consecutive quarterly
installments, payable on the date that is four years and three months after the
Effective Date and on each successive date thereafter which is three months
after the preceding installment date, in the aggregate amount set forth below
for each installment:
Installment Amount
----------- ------
1-18 $ 562,500
19-22 $53,718,750
54
(d) To the extent not previously paid, (i) all Tranche A Term Loans
shall be due and payable on the Tranche A Maturity Date and (ii) all Tranche B
Term Loans shall be due and payable on the Tranche B Maturity Date.
(e) If the initial aggregate amount of the Lenders' Term Commitments
of either Class exceeds the aggregate principal amount of Term Loans of such
Class that are made during the Tranche A Availability Period, in the case of the
Tranche A Term Loans, or on the Effective Date, in the case of the Tranche B
Term Loans, then the scheduled repayments of Term Borrowings of such Class to be
made pursuant to this Section shall be reduced ratably by an aggregate amount
equal to such excess. Any prepayment of a Term Borrowing of either Class shall
be applied to reduce the subsequent scheduled repayments of the Term Borrowings
of such Class to be made pursuant to this Section ratably.
(f) Prior to any repayment of any Term Borrowings of either Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment; provided that each repayment of Term Borrowings of either Class shall
--------
be applied to repay any outstanding ABR Term Borrowings of such Class before any
other Borrowings of such Class. Each repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
--------------------
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, promptly and in any event not later than the Business Day
after such Net Proceeds are received, the Borrower shall prepay Term Borrowings
and the Revolving Commitments and the unused Tranche A Commitments shall be
automatically and permanently reduced in an aggregate amount (to be applied
ratably among the Tranche A Term Loans, the unused Tranche A Commitments,
55
the Tranche B Term Loans and the Revolving Commitments based on their then
respective amounts) equal to (i) in the case of an event described in clause (c)
of the definition of "Prepayment Event", 50% of such Net Proceeds and (ii) in
the case of an event described in any other clause of the definition of
"Prepayment Event", 100% of such Net Proceeds.
(c) Following the end of the fiscal year of the Borrower ending
December 31, 2001 and following the end of each subsequent fiscal year, the
Borrower shall prepay Term Borrowings and the Revolving Commitments and the
unused Tranche A Commitments shall be automatically and permanently reduced in
an aggregate amount (to be applied ratably among the Tranche A Term Loans, the
unused Tranche A Commitments, the Tranche B Term Loans and the Revolving
Commitments based on their then respective amounts) equal to 50% of Excess Cash
Flow for such fiscal year. Each prepayment pursuant to this paragraph shall be
made on or before the third Business Day after the date on which financial
statements are delivered (or, if earlier, required to be delivered) pursuant to
Section 5.01(a) with respect to the fiscal year for which Excess Cash Flow is
being calculated.
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (e) of this Section; provided that (i) all prepayments shall be
--------
applied ratably among the Tranche A Term Loans, the unused Tranche A
Commitments, the Tranche B Term Loans and the Revolving Commitments and (ii)
each prepayment of Borrowings of any Class shall be applied to prepay ABR
Borrowings of such Class before any other Borrowings of such Class. Any amounts
remaining after such application shall, at the option of the Borrower, be
applied to prepay Eurodollar Borrowings immediately and/or shall be deposited in
the Prepayment Account (as defined below). The Administrative Agent shall apply
any cash deposited in the Prepayment Account to prepay Eurodollar Borrowings on
the last day of their respective Interest Periods (or, at the direction of the
Borrower, on any earlier date) until all outstanding Eurodollar Borrowings have
been prepaid or until all the allocable cash on deposit with respect to such
Loans has been exhausted. For purposes of this Agreement, the term "Prepayment
Account" shall mean an account established by the Borrower with the
Administrative Agent and over which
56
the Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal for application in accordance with this
paragraph (d). The Administrative Agent will, at the request of the Borrower,
invest amounts on deposit in the Prepayment Account in Permitted Investments
that mature prior to the last day of the applicable Interest Periods of the
Eurodollar Borrowings to be prepaid; provided, however, that (i) the
-------- -------
Administrative Agent shall not be required to make any investment that, in its
sole judgment, would require or cause the Administrative Agent to be in, or
would result in any, violation of any law, statute, rule or regulation and (ii)
the Administrative Agent shall have no obligation to invest amounts on deposit
in the Prepayment Account if a Default or Event of Default shall have occurred
and be continuing. The Borrower shall indemnify the Administrative Agent for any
losses relating to the investments so that the amount available to prepay
Eurodollar Borrowings on the last day of the applicable Interest Period is not
less than the amount that would have been available had no investments been made
pursuant thereto. Other than any interest earned on such investments, the
Prepayment Account shall not bear interest. Interest or profits, if any, on such
investments shall be deposited in the Prepayment Account and reinvested and
disbursed as specified above. If the maturity of the Loans has been accelerated
pursuant to Article VII, the Administrative Agent may, in its sole discretion,
apply all amounts on deposit in the Prepayment Account to satisfy any of the
Obligations. The Borrower hereby grants to the Administrative Agent, for its
benefit and the benefit of the Issuing Bank and the Lenders, a security interest
in the Prepayment Account to secure the Obligations. In the event of any
optional or mandatory prepayment of Term Borrowings or reduction of Tranche A
Commitments made at a time when Term Borrowings or unused Commitments of both
Classes remain outstanding, the Borrower shall select Term Borrowings to be
prepaid and Tranche A Commitments to be reduced so that the aggregate amount of
such prepayment is allocated between the Tranche A Term Borrowings, the unused
Tranche A Commitments and Tranche B Term Borrowings pro rata based on the
aggregate principal amount of outstanding Borrowings or unused Commitments of
each such Class; provided that any Tranche B Lender may elect, by notice to the
--------
Administrative Agent by telephone (confirmed by telecopy) at least one Business
Day prior to the prepayment date, to decline all or any portion of any
prepayment of its Tranche B Term Loans pursuant to this Section (other than an
optional prepayment
57
pursuant to paragraph (a) of this Section, which may not be declined), in which
case the Net Proceeds or Excess Cash Flow that would have been applied to prepay
Tranche B Term Loans but were so declined shall be applied to prepay Tranche A
Term Loans and to reduce the Revolving Commitments and the unused Tranche A
Commitments on a pro rata basis based on their then respective amounts.
(e) The amount of any optional or mandatory prepayments allocated to
Tranche A Term Loans or Tranche B Term Loans shall be applied pro rata to reduce
the principal amount of the then remaining amortization installments applicable
to such Loans set forth in Section 2.08. The amount of any optional or
mandatory commitment reductions allocated to the Revolving Commitments or the
unused Tranche A Commitments shall be applied pro rata to reduce the principal
amount of the then remaining reductions applicable to such Commitments set forth
in Section 2.08. Any reduction of the Revolving Commitments shall be
accompanied by prepayment of Revolving Loans to the extent the aggregate amount
of such loans outstanding exceeds the total amount of the Revolving Commitments
as so reduced.
(f) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment. Each such
notice shall be irrevocable and shall specify the prepayment date, the principal
amount of each Borrowing or portion thereof to be prepaid and, in the case of a
mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of optional prepayment is given in
--------
connection with a conditional notice of termination of the Revolving Commitments
as contemplated by Section 2.08, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08.
Promptly following receipt of any such notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each partial prepayment of any
Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the
58
required amount of a mandatory prepayment. Each prepayment of a Borrowing shall
be applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.
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 at the Applicable Rate on the daily unused amount of each
Commitment of such Lender for each day during the period from and including the
date hereof to but excluding the date on which such Commitment terminates.
Accrued commitment fees shall be payable in arrears on the last day of March,
June, September and December of each year and on the date on which any
Commitments of such Lender shall expire or terminate, commencing on the first
such date to occur after the date hereof. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Exposure of such Lender.
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(c) The Borrower agrees to pay (i) to each Revolving Lender, through
the Administrative Agent, on the last Business Day of March, June, September and
December of each year and on the date on which the Revolving Commitment of such
Lender shall be terminated as provided herein, a fee (an "L/C Participation
Fee") calculated on such Lender's Pro Rata Percentage of the actual daily
aggregate L/C Exposure (excluding the portion thereof attributable to
unreimbursed L/C Disbursements) for each day during the preceding quarter (or
shorter period commencing with the date hereof or ending with the Revolving
Maturity Date or the date on which all Letters of Credit have been canceled or
have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Margin for Eurodollar
Borrowings and (ii) to the Issuing Bank with respect to each Letter of Credit a
fronting fee of one quarter of one percent per annum along with the standard
59
issuance and drawing fees specified from time to time by such Issuing Bank (the
"Issuing Bank Fees"). All L/C Participation Fees and Issuing Bank Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of commitment fees and participation fees, to the Lenders entitled
thereto, except that the Issuing Bank Fees shall be paid directly to the Issuing
Bank. Fees paid shall not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
---------
shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) 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% 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% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
--------
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
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
60
conversion of any Eurodollar 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.
(e) 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 LIBO 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, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) 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 (provided that the
Administrative Agent shall use commercially reasonable efforts to determine
whether or not the circumstances which have caused the notice, continue to
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
61
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
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 LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition (other than a condition relating to a Tax)
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 increase the cost to such Issuing Bank
of issuing or maintaining any Letter of Credit or to reduce the amount of any
sum received or receivable by such Lender or such Issuing Bank hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to
such Lender or such Issuing Bank such additional amount or amounts as will
compensate such Lender or such Issuing Bank for such additional costs incurred
or reduction suffered.
(b) If any Lender or Issuing Bank 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 or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender, the Letters of Credit issued by such
Issuing Bank or the Letters of Credit participated in by such Lender, to a level
below that which such Lender or Issuing Bank or such Lender's or Issuing Bank's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's or Issuing Bank's policies and the policies of such
Lender's or Issuing Bank's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or Issuing Bank or such Lender's
62
or Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing Bank the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; provided that
--------
the Borrower shall not be required to compensate a Lender or Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or Issuing Bank, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or Issuing Bank'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 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
-----------------------
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.11(g) and is revoked in accordance therewith), or (d)
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
63
interest which would have accrued on the principal amount of such Loan had such
event not occurred, at the Adjusted LIBO 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. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to 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 10 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, Lender or Issuing Bank (as the case may be) 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.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law, except Taxes
that are being contested in good faith by appropriate proceedings and for which
the Borrower has set aside on its books reserves in accordance with GAAP.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender, and the Issuing Bank within 30 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
64
Administrative Agent, such Lender, or the Issuing Bank, 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.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, the Issuing Bank or by the Administrative Agent on its own
behalf or on behalf of a Lender, or the Issuing Bank, shall be conclusive absent
manifest 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, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any 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 shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, 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, including, without limitation, if
such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and intends to claim exemption from the U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Foreign Lender delivers a Form W-8, a certificate representing
that such Foreign Lender is not a bank for purposes of Section 881(c) of the
code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of
65
Section 864(d)(4) of the Code)), properly completed and duly executed by such
Foreign Lender claiming complete exemption from, or a reduced rate of, U.S.
Federal withholding tax on payments of interest by the Borrower under this
Agreement and the other Loan Documents.
(f) If the Administrative Agent or a Lender receives a refund in
respect of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall within 30 days from
the date of such receipt pay over to the Borrower (a) such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.15 with respect to the Indemnified Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative agent or such Lender and (b) interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
-------- -------
Borrower, upon the request of the Administrative Agent or such Lender shall
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority.
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,
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 at its offices at 270 Park Avenue, New York, New York,
except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be
made directly to the Persons entitled thereto, payments of Issuing Bank Fees
shall be made directly to the Issuing Bank 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
66
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.
(c) If any Lender shall, by exercising any right of set off or
counterclaim or otherwise, obtain payment in respect of any Loan or Loans or L/C
Disbursement as a result of which the unpaid principal portion of its Tranche A
Term Loans, Tranche B Term Loans or Revolving Loans or participations in L/C
Disbursements shall be proportionately less than the unpaid principal portion of
the Tranche A Term Loans, Tranche B Term Loans or Revolving Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in the
Tranche A Term Loans, Tranche B Term Loans or Revolving Loans or L/C Exposure,
as the case may be, of such other Lender, so that the aggregate unpaid principal
amount of the Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and
participations in Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
and L/C Exposure held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Tranche A Term Loans, Tranche B Term
Loans and Revolving Loans and L/C Exposure then outstanding as the principal
amount of its Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
prior to such exercise of any right of setoff or counterclaim or other event was
to the principal amount of all Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans and L/C
67
Exposure outstanding prior to such exercise of any right of setoff or
counterclaim or other event; 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) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(b), 2.04(c), 2.06(d) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to
68
satisfy such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a)
-----------------------------------------------
If any Lender or Issuing Bank requests compensation under Section 2.13, or if
the Borrower is required to pay any additional amount to any Lender or Issuing
Bank or any Governmental Authority for the account of any Lender or Issuing Bank
pursuant to Section 2.15, then such Lender or Issuing Bank 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 or Issuing
Bank, 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 or Issuing Bank to any unreimbursed cost or
expense and would not otherwise be disadvantageous in any material respect to
such Lender or Issuing Bank. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender or Issuing Bank requests compensation under Section
2.13, or if the Borrower is required to pay any additional amount to any Lender
or Issuing Bank or any Governmental Authority for the account of any Lender or
Issuing Bank 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 or Issuing Bank and the Administrative
Agent, require such Lender or Issuing Bank to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04 and, in the case of an Issuing Bank, subject to Section 2.19(i)
hereof), all its interests, rights and obligations under this Agreement to an
assignee 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 (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender or Issuing Bank shall have
received payment of an amount equal to the outstanding principal of its Loans
and L/C Disbursements, accrued interest thereon, accrued fees and all other
amounts
69
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) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.13 or payments required to be made
pursuant to Section 2.15, such assignment will result in a reduction in such
compensation or payments. A Lender or Issuing Bank shall not be required to make
any such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or Issuing Bank or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
SECTION 2.18. Expansion Facility. On two occasions prior to the
-------------------
Tranche B Maturity Date, the Borrower may, by notice to the Administrative Agent
(which shall promptly deliver a copy to each of the Lenders), request the
addition of a new tranche of Term Loans (all such Term Loans, collectively, the
"Expansion Term Loans") provided, however, that both at the time of any such
-------------------- -------- -------
request and after giving effect to any such Expansion Term Loans (x) no Default
shall exist and the Borrower shall be in pro forma compliance with each
financial covenant. The Expansion Term Loans (i) shall be in an aggregate
principal amount not in excess of $75,000,000, (ii) shall rank pari passu in
---- -----
right of payment and of security with the Loans, (iii) shall mature no sooner
than, and have a longer average weighted life than, the Tranche B Term Loans,
(iv) shall have such pricing as may be agreed by the Borrower and the persons
providing such Expansion Term Loans and shall otherwise be treated hereunder no
more favorably than the Tranche B Term Loans. Such notice shall set forth the
requested amount of Expansion Term Loans (which amount, together with the amount
of all previous Expansion Term Loans, shall not exceed $75,000,000), and shall
offer each Lender the opportunity to offer a commitment to provide Expansion
Term Loans by giving written notice of such offered commitment to the
Administrative Agent and the Borrower within 10 Business Days after the date of
the Borrower's notice; provided, however, that no existing Lender will be
-------- -------
obligated to subscribe for any portion of such commitments. In the event that,
on the tenth Business Day after the Borrower shall have delivered a notice
pursuant to the first sentence of this paragraph, Lenders shall have provided
commitments in an aggregate amount less than the total amount of the Expansion
Term Loans requested by the Borrower, the Borrower shall have the right to
arrange for one or more banks or
70
other financial institutions (any such bank or other financial institution being
called an "Additional Lender") to extend commitments to provide Expansion Term
-----------------
Loans in an aggregate amount equal to the unsubscribed amount, provided that
--------
each Additional Lender shall be subject to the approval of the Administrative
Agent (which approval shall not be unreasonably withheld) and provided further
-------- -------
that the Additional Lenders shall be offered the opportunity to provide the
Expansion Term Loans only on terms previously offered to the existing lenders
pursuant to the immediately preceding sentence. Commitments in respect of
Expansion Term Loans shall become Commitments under this Agreement pursuant to
an Expansion Facility Amendment executed by each of the Borrower, each Lender
agreeing to provide such Commitment, if any, each Additional Lender, if any, and
the Administrative Agent. The effectiveness of any Expansion Facility Amendment
shall be subject to the satisfaction on the date thereof and, if different, on
the date on which the Expansion Term Loans are made, of each of the conditions
set forth in Section 4.02.
SECTION 2.19. Letters of Credit. (a) General. The Borrower may
------------------
request the issuance of Letters of Credit denominated in dollars, for its own
account, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time while the Revolving Commitments
remain in effect. This Section shall not be construed to impose an obligation
upon the Issuing Bank to issue any Letter of Credit that is inconsistent with
the terms and conditions of this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
In order to request the issuance of a Letter of Credit (or to amend, renew or
extend an existing Letter of Credit), the Borrower shall hand deliver or
telecopy to the Issuing Bank and the Administrative Agent (at least three days
in advance of the requested date of issuance, amendment, renewal or extension or
such shorter time period agreed upon by the Issuing Bank and the Borrower) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) below), the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare such Letter of
71
Credit. Following receipt of such notice and prior to the issuance of the
requested Letter of Credit or the applicable amendment, renewal or extension,
the Administrative Agent shall notify the Borrower, the Issuing Bank and the
Lenders of the amount of the Aggregate Revolving Exposure after giving effect to
(i) the issuance, amendment, renewal or extension of such Letter of Credit, (ii)
the issuance or expiration of any other Letter of Credit that is to be issued or
will expire prior to the requested date of issuance of such Letter of Credit and
(iii) the borrowing or repayment of any Revolving Loans that (based upon notices
delivered to the Administrative Agent by the Borrower) are to be borrowed or
repaid prior to the requested date of issuance of such Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if, and upon
issuance, amendment, renewal or extension of each Letter of Credit the Borrower
shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (A) the L/C Exposure shall not exceed
$10,000,000 and (B) the Aggregate Revolving Exposure shall not exceed the Total
Revolving Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of the date one year after the date of the
issuance of such Letter of Credit and the date that is five Business Days prior
to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each such Lender hereby acquires
from the Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Pro Rata Percentage of the aggregate amount available to be drawn under
such Letter of Credit, effective upon the issuance of such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Lender hereby
absolutely and unconditionally agrees to pay to the Administrative Agent, for
the account of the Issuing Bank, such Lender's Pro Rata Percentage of each L/C
Disbursement made by such Issuing Bank and not reimbursed by the Borrower (or,
if applicable, another party pursuant to its obligations under any other Loan
Document) forthwith on the date due as provided in Section 2.02(e). Each
Revolving Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit
72
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement,
withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in
respect of a Letter of Credit, the Borrower shall pay to the Administrative
Agent an amount equal to such L/C Disbursement not later than two hours after
the Borrower shall have received notice from such Issuing Bank that payment of
such draft will be made, or, if the Borrower shall have received such notice
later than 3:00 p.m., New York City time, on any Business Day, not later than
10:00 a.m., New York City time, on the immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse L/C
Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with,
the Borrower, any Subsidiary or other Affiliate thereof or any other Person
may at any time have against the beneficiary under any Letter of Credit,
the Issuing Bank, the Administrative Agent or any Lender or any other
Person, whether in connection with this Agreement, any other Loan Document
or any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
73
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the
terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
Issuing Bank, the Lenders, the Administrative Agent or any other Person or
any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section,
constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the Issuing Bank. However, the
foregoing shall not be construed to excuse the Issuing Bank from liability to
the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the
extent permitted by applicable law) suffered by the Borrower that are caused by
such Issuing Bank's gross negligence or wilful misconduct in determining whether
drafts and other documents presented under a Letter of Credit comply with the
terms thereof; it is understood that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary and, in
making any payment under any Letter of Credit (i) the Issuing Bank's exclusive
reliance on the documents presented to it under such Letter of Credit as to any
and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the
beneficiary thereunder equals the amount of such draft and whether or not any
document presented pursuant to such Letter of Credit proves to be insufficient
in any respect, if such document on its face appears to be in order, and whether
or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves
to be inaccurate or untrue in any respect whatsoever and (ii) any noncompliance
in any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case,
74
be deemed not to constitute wilful misconduct or gross negligence of the Issuing
Bank.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall as promptly as
possible give telephonic notification, confirmed by telecopy, to the
Administrative Agent and the Borrower of such demand for payment and whether
such Issuing Bank has made or will make an L/C Disbursement thereunder; provided
that any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse the Issuing Bank and the Revolving
Lenders with respect to any such L/C Disbursement. The Administrative Agent
shall promptly give each Revolving Lender notice thereof.
(h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement
in respect of a Letter of Credit, then, unless the Borrower shall reimburse such
L/C Disbursement in full on such date, the unpaid amount thereof shall bear
interest for the account of such Issuing Bank, for each day from and including
the date of such L/C Disbursement, to but excluding the earlier of the date of
payment by the Borrower or the date on which interest shall commence to accrue
thereon as provided in Section 2.02(e), at the rate per annum that would apply
to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of the Issuing Bank. The Issuing Bank may
resign at any time by giving 180 days' prior written notice to the
Administrative Agent, the Lenders and the Borrower, and may be removed at any
time by the Borrower by notice to the Issuing Bank, the Administrative Agent and
the Lenders. Subject to the next succeeding paragraph, upon the acceptance of
any appointment as the Issuing Bank hereunder by a Lender that shall agree to
serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing
Bank and the retiring Issuing Bank shall be discharged from its obligations to
issue additional Letters of Credit hereunder. At the time such removal or
resignation shall become effective, the Borrower shall pay all accrued and
unpaid fees pursuant to Section 2.05(d). The acceptance of any appointment as
the Issuing Bank hereunder by a successor
75
Lender shall be evidenced by an agreement entered into by such successor, in a
form satisfactory to the Borrower and the Administrative Agent, and, from and
after the effective date of such agreement, (i) such successor Lender shall have
all the rights and obligations of the previous Issuing Bank under this Agreement
and the other Loan Documents and (ii) references herein and in the other Loan
Documents to the term "Issuing Bank" shall be deemed to refer to such successor
or to any previous Issuing Bank, or to such successor and all previous Issuing
Banks, as the context shall require. After the resignation or removal of an
Issuing Bank hereunder, the retiring Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank
under this Agreement and the other Loan Documents with respect to Letters of
Credit issued by it prior to such resignation or removal, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, the Borrower shall, on the Business Day it receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders holding participations in outstanding
Letters of Credit representing greater than 50% of the aggregate undrawn amount
of all outstanding Letters of Credit) thereof and of the amount to be deposited,
deposit in an account with the Collateral Agent, for the benefit of the
Revolving Lenders, an amount in cash equal to the L/C Exposure as of such date.
Such deposit shall be held by the Collateral Agent as collateral for the payment
and performance of the Obligations. The Collateral Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the investment of such deposits in
Permitted Investments, which investments shall be made at the option and sole
discretion of the Collateral Agent, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in such
account. Moneys in such account shall (i) automatically be applied by the
Administrative Agent to reimburse the Issuing Bank for L/C Disbursements for
which they have not been reimbursed, (ii) be held for the satisfaction of the
reimbursement obligations of the Borrower for the L/C Exposure at such time and
(iii) if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Lenders holding participations in
76
outstanding Letters of Credit representing greater than 50% of the aggregate
undrawn amount of all outstanding Letters of Credit), be applied to satisfy the
Obligations. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived.
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 to carry on its business as now conducted and to own and operate
Systems in the areas set forth on Schedule 3.14 and, except where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, 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 each Loan Party are within such Loan Party's corporate or other
organizational powers and have been duly authorized by all necessary action.
This Agreement has been duly executed and delivered by the Borrower and
constitutes, and each other Loan Document to which any Loan Party is to be a
party, when executed and delivered by such Loan Party, will constitute, a legal,
valid and binding obligation of the Borrower or such Loan Party (as the case may
be), enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
77
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, (ii) with respect to the
Subordinated Debt, such as will be obtained or made or be in full force and
effect prior to the issuance thereof and (iii) 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 any
Loan Party or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument binding
upon any Loan Party or any of their assets, or give rise to a right thereunder
to require any payment to be made by any Loan Party and (d) will not result in
the creation or imposition of any Lien on any asset of any Loan Party, except
Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
------------------------------------------------
The Borrower has heretofore furnished to the Lenders a pro forma consolidated
balance sheet as of the Closing Date, prepared giving effect to the Transactions
as if the Transactions had occurred on such date. Such pro forma consolidated
balance sheet (i) has been prepared in good faith based on the same assumptions
used to prepare the pro forma financial statements included in the Information
Memorandum (which assumptions are believed by the Borrower to be reasonable),
(ii) is based on the best information available to the Borrower after due
inquiry, (iii) accurately reflects all adjustments necessary to give effect to
the Transactions and (iv) presents fairly, in all material respects, the pro
forma financial position of the Borrower and its consolidated Subsidiaries as of
such date as if the Transactions had occurred on such date.
(b) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of the Borrower
or its Subsidiaries has, as of the Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.
(c) Since December 31, 1997, there has been no material adverse
change in the business, assets, operations,
78
prospects or condition, financial or otherwise, of THC, the Borrower and its
Restricted Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
-----------
Subsidiaries has good title to, or valid leasehold interests in all real and
personal property material to its business (including its Mortgaged Properties),
except for minor defects in title that do not materially interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries 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.
(c) Schedule 3.05 sets forth the address of each real property that
is owned or leased by the Borrower or any of its Subsidiaries as of the
Effective Date after giving effect to the Transactions.
(d) As of the Effective 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 or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) 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 any of 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 (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
79
(b) Except for the Disclosed Matters and except with respect to any
other 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
Subsidiary (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.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each Loan Party
------------------------------------
is in compliance with (a) all laws, regulations and orders of any Governmental
Authority applicable to it or its property and (b) the terms of the PCS
Documents and all other indentures, agreements and instruments binding upon it
or its property, except, in the case of laws, regulations, orders, agreements,
indentures and instruments other than the PCS Documents, where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. No Loan Party
--------------------------------------
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 3.09. Taxes. Each Loan Party has filed or caused to be filed
------
all Tax returns which, to the knowledge of the Borrower are required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books reserves in accordance with GAAP.
80
SECTION 3.10. 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, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each 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 $1,000,000 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 $1,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
-----------
all agreements, instruments and corporate or other restrictions to which any
Loan Party 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. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished
by or on behalf of any Loan Party 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), as of the date thereof, contained any material
misstatement of fact or omitted to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial
--------
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time. All
information furnished by or on behalf of any Loan Party 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), taken as a whole, does not
contain any material misstatement of fact and does not omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
81
misleading; provided that, with respect to projected financial information, the
--------
Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries; Parents. (a) Schedule 3.12 sets forth
----------------------
the name of, and the ownership interest of the Borrower in, each Subsidiary of
the Borrower and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Effective Date. Each License Subsidiary, the Equipment
Subsidiary and the Real Property Subsidiary is a Wholly Owned Subsidiary, and
all the Capital Stock of each such Person is directly owned by the Borrower free
and clear of any Lien (other than Liens created by the Security Documents).
(b) As of the Effective Date, the Capital Stock of the Borrower will
be owned as set forth on Schedule 3.12. As of the date hereof, to the best of
the Borrower's knowledge, AW is a Wholly Owned Subsidiary of AT&T Corp.
(c) As of the date hereof, there is not, and as of the Effective
Date, there will not be, any issued or outstanding Capital Stock or other
interest of or in the Borrower or any of its Subsidiaries other than as
described in subsections 3.12(a) and (b). All outstanding Capital Stock of each
Restricted Subsidiary of the Borrower is owned, directly or indirectly, by the
Borrower or another Restricted Subsidiary free and clear of all Liens whatsoever
(other than Liens created by the Security Documents).
(d) All Licenses which are directly or indirectly held by the
Borrower or any of its Restricted Subsidiaries are owned, beneficially and of
record by a License Subsidiary, free and clear of all Liens (other than Liens
under the Security Documents or imposed by the Communications Act).
(e) All Real Property Assets and Real Property-Related Equipment
(other than Excluded Real Property Assets, Excluded Real Property-Related
Equipment, Secured Real Property Assets and Secured Real Property-Related
Equipment) which are directly or indirectly owned by the Borrower or any other
Loan Party are owned, beneficially and of record by the Real Property
Subsidiary, free and clear of all Liens (other than Liens under the Security
Documents or Permitted Encumbrances). At least 90% of the value of (A) the Real
82
Property Assets and (B) the Real Property-Related Equipment of the Borrower and
its Restricted Subsidiaries (excluding Secured Real Property Assets and Secured
Real Property-Related Equipment) are owned, beneficially and of record, free and
clear of all Liens (other than the Liens under the Security Documents) by the
Real Property Subsidiary. All Base Stations which are directly or indirectly
owned by the Borrower or any of its Restricted Subsidiaries are owned,
beneficially and of record, free and clear of all Liens (other than Liens under
the Security Documents) by the Equipment Subsidiary or the Real Property
Subsidiary.
SECTION 3.13. Absence of Non-Permitted Obligations. None of the
-------------------------------------
Special Purpose Subsidiaries has any obligations or liabilities other than (a)
under the Guarantee Agreement and the Security Agreement, (b) in the case of the
Real Property Subsidiary, under any lease of real property or equipment which it
has entered into in the ordinary course of business and for taxes incurred in
the ordinary course of business which are incident to being the owner or lessee
of real property and equipment, (c) in the case of any License Subsidiary, under
the Communications Act and in the case of THC, with respect to the Intercompany
THC Loans and FCC Debt, (d) in the case of the Equipment Subsidiary, under any
lease of equipment which it has entered into in the ordinary course of business
and for taxes incurred in the ordinary course of business which are incident to
being the owner or lessor of equipment and (e) taxes incurred in the ordinary
course in order for it to continue to maintain its existence.
SECTION 3.14. Licenses. (i) The Borrower and its Restricted
---------
Subsidiaries have the full use and benefit of all Licenses necessary to operate
a System in the MTAs and BTAs listed on Parts A, B and C of Schedule 3.14 and
each other area in which the Borrower or any Subsidiary conducts a broadband
personal communications services business and will have the full use and benefit
of the Licenses listed on (a) Part D of Schedule 3.14 upon consummation of the
San Juan Acquisition, (b) Part E of Schedule 3.14 upon consummation of the LMDS
Merger, (c) Part F of Schedule 3.14 upon consummation of the Mercury
Acquisition, (d) Part G of Schedule 3.14 upon consummation of the San Diego
Merger and (e) Part H of Schedule 3.14 upon consummation of the Wireless 2000
Acquisition, (ii) such Licenses have been duly issued by the FCC, are (in the
case of Licenses listed on Parts A, B or C of Schedule 3.14) or will be (upon
83
consummation of the relevant transaction in the case of Licenses listed on Parts
D, E, F, G and H of Schedule 3.14) held by a License Subsidiary and are in full
force and effect and (iii) the Borrower and its Subsidiaries are in compliance
in all material respects with all of the provisions of each such License held by
any of them.
SECTION 3.15. No Burdensome Restrictions. No Requirement of Law or
---------------------------
Contractual Obligation (other than, in the case of clause (b) below, any
restriction under subsection 6.08(a)) applicable to the Borrower or any
Subsidiary could, as a result of compliance by the Borrower and the Subsidiaries
therewith, reasonably be expected to (a) have a Material Adverse Effect or (b)
limit the ability of any Restricted Subsidiary to pay dividends or to make
distributions or advances to the Borrower or any other Restricted Subsidiary.
SECTION 3.16. Use of Proceeds. The Borrower will use the proceeds of
----------------
the Loans to fund capital expenditures related to the construction of the
Network, the acquisition of Related Businesses, working capital needs of the
Borrower and subscriber acquisition costs and will request the issuance of
Letters of Credit only to support payment obligations incurred in the ordinary
course of business by the Borrower and the Restricted Subsidiaries.
SECTION 3.17. Flood Insurance. To the extent reasonably available,
----------------
the Borrower has obtained for all Mortgaged Properties which are located in a
"flood hazard area", as designated in any Flood Insurance Rate Map published by
the Federal Emergency Management Agency, such flood insurance in such total
amount as the Administrative Agent has from time to time reasonably required.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a description of
----------
all insurance maintained by or on behalf of the Borrower and its Restricted
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums
in respect of such insurance have been paid.
SECTION 3.19. Labor Matters. As of the Effective Date, there are no
--------------
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened. With such exceptions as could
not reasonably be expected to result in a Material Adverse Effect, (i) the hours
worked by and payments made to
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employees of the Borrower and the 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 and (ii) all payments due from the
Borrower or any Subsidiary, or for which any claim may be made against the
Borrower or any Subsidiary, 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 Borrower or such Subsidiary.
SECTION 3.20. Solvency. Immediately after the consummation of the
---------
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans and the provisions of the Indemnity,
Subrogation and Contribution Agreement, (a) the fair value of the assets of each
Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.21. FCC Compliance. (a) The Borrower and each Subsidiary
---------------
are in compliance in all material respects with the Communications Act and all
requirements of the FCC, including its Very Small Business requirements.
(b) The Borrower has no knowledge of any investigation, notice of
apparent liability, violation, forfeiture or other order or complaint issued by
or before the FCC, or of any other proceedings (other than proceedings relating
to the wireless communications industries generally) of or before the FCC, which
could reasonably be expected to have a Material Adverse Effect except as set
forth in Schedule 3.21.
85
(c) No event has occurred which (i) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modifications, non-renewal, impairment, restriction or termination of, or order
of forfeiture with respect to, any License in any respect which could reasonably
be expected to have a Material Adverse Effect or (ii) affects or could
reasonably be expected in the future to affect any of the rights of the Borrower
or any License Subsidiary under any License held by the Borrower or any License
Subsidiary in any respect which could reasonably be expected to have a Material
Adverse Effect.
(d) The Borrower and each License Subsidiary have duly filed in a
timely manner all material filings, reports, applications, documents,
instruments and information required to be filed by it under the Communications
Act, and all such filings were when made true, correct and complete in all
material respects.
(e) The Borrower has no reason to believe that each License of the
Borrower or any Subsidiary will not be renewed in the ordinary course.
SECTION 3.22. Security Documents. (a) The Pledge Agreement is
-------------------
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable security interest
in the Collateral (as defined in the Pledge Agreement) and, when the Collateral
is delivered to the Administrative Agent, the Pledge Agreement shall create 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.
(b) The Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to the Perfection Certificate, the
Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral (other than the Intellectual Property, as defined in the Security
Agree-
86
ment), in each case prior and superior in right to any other Person, other than
with respect to Liens expressly permitted by Section 6.02. Following an Event of
Default, the Borrower's rights under the PCS Documents (other than the
Stockholders Agreement) will be enforceable by the Lenders; provided, however,
-------- -------
that the Administrative Agent shall not assign the Network Licensing Agreement
to a third party without first obtaining AW's consent.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, and, with respect
to Collateral in which a security interest cannot be perfected by such filings,
upon the filing of the financing statements referred to in paragraph (b) above,
the Security Agreement and such financing statements shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other Person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the grantors after the date hereof), other than with respect to
Liens expressly permitted by Section 6.02.
(d) The Mortgages are effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all of the Borrower's right, title and interest in
and to the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.22, the Mortgages
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Borrower 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 Section 6.02.
SECTION 3.23. Copyrights, Trademarks, etc. The Borrower and the
----------------------------
Restricted Subsidiaries own, or, to the best of their knowledge, are licensed to
use, all copyrights, trademarks, trade names, patents, technology, know-how and
processes, service marks and rights with
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respect to the foregoing that are (a) used in or necessary for the conduct of
their respective businesses as currently conducted and (b) material to the
business, assets, operations, properties, prospects or condition (financial or
otherwise) of the Borrower and the Restricted Subsidiaries taken as a whole. The
use of such copyrights, trademarks, trade names, patents, technology, know-how
and processes, service marks and rights with respect to the foregoing by the
Borrower and the Restricted Subsidiaries does not infringe on the rights of any
Person.
SECTION 3.24. Federal Regulations. No part of the proceeds of any
--------------------
Loans or any Letter of Credit will be used in any manner which would result in a
violation of Regulation U or X of the Board as now and from time to time
hereafter in effect or to buy or carry "margin stock" (as defined thereunder) or
to refinance any Indebtedness incurred for such purpose.
SECTION 3.25. Year 2000. Any reprogramming required to permit the
----------
proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and equipment containing embedded microchips (including systems
and equipment supplied by others or with which Borrower's systems interface) and
the testing of all such systems and equipment, as so reprogrammed, will be
completed by January 1, 1999. The cost to the Borrower of such reprogramming
and testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower (including, without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrower to conduct its business without Material Adverse Effect.
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ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
---------------
Loans and of the Issuing Bank to issue Letters of Credit 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 Effective Date) of (i) McDermott, Will & Emery, counsel for the
Borrower substantially in the form of Exhibit B-1 and (ii) Wiley, Rein &
Fielding, special counsel to the Borrower with respect to FCC matters,
substantially in the form of Exhibit B-2 and, in the case of each such
opinion required by this paragraph, covering such other matters relating to
the Loan Parties, the Loan Documents or the Transactions as the Required
Lenders shall reasonably request. The Borrower hereby requests such
counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a certificate of
the Secretary or Assistant Secretary of the Borrower and each Subsidiary
Loan Party dated the Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws, operating agreement or
partnership agreement of such Loan Party as in effect on the Effective Date
and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors (or
equivalent governing body), members or partners of the Borrower and each
Subsidiary Loan Party authorizing the execution, delivery and performance
of the Loan
89
Documents to which such Person is a party and, in the case of the Borrower,
the borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, and (C) as to the
incumbency and specimen signature of each officer or partner of the
Borrower (or its general partner) and any Subsidiary Loan Party executing
any Loan Document on behalf of such Loan Party; (ii) a certificate of
another officer as to the incumbency and specimen signature of the
Secretary or Assistant Secretary executing the certificate pursuant to (i)
above; and (iii) such other documents as the Lenders or Cravath, Swaine &
Moore, counsel for the Administrative Agent, may reasonably request.
(d) 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 paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document.
(f) The Borrower shall have transferred to (i) the Real Property
Subsidiary all Real Property Assets and Real Property-Related Equipment
other than (A) Real Property Assets constituting rights under leases that
as of the date hereof prohibit such transfer (without regard to any such
prohibition which contains exceptions if the Borrower or any other
Subsidiary remains liable for the obligations under the applicable lease or
if the Borrower or its Subsidiaries were to take other actions which are
reasonably (considering the expenses involved) within their power to take
("Restricted Real Property Assets")), (B) equipment which constitutes a
-------------------------------
fixture to any Restricted Real Property Asset ("Restricted Real Property-
Related Equipment") and (c) Secured Real Property Assets and Secured Real
Property Related Equipment but in any event the Borrower shall have so
transferred assets constituting at least 90% of the
90
value of all Real Property Assets and Real Property-Related Equipment of
the Borrower and its Subsidiaries (excluding Secured Real Property Assets
and Secured Real Property-Related Equipment) as of the date hereof and
provided evidence reasonably satisfactory to the Administrative Agent of
the transfers described above, (ii) the Equipment Subsidiary or the Real
Property Subsidiary all Base Stations which are held directly or indirectly
by the Borrower or any of its Restricted Subsidiaries and (iii) a License
Subsidiary all Licenses which are directly or indirectly held by the
Borrower or any of its Restricted Subsidiaries (including the Licenses for
the MTAs and BTAs listed on Schedule 3.14), free and clear of all Liens
whatsoever (other than Liens created by the Security Documents and, with
respect to any License Subsidiary, Liens arising under the Communications
Act), and each Special Purpose Subsidiary shall have entered into a Special
Purpose Subsidiary Funding Agreement with the Borrower.
(g) The Pledge Agreement shall have been duly executed by the parties
thereto, shall have been delivered to the Administrative Agent and shall be
in full force and effect, and all the outstanding (i) intercompany
Indebtedness owed to any Loan Party by the Borrower or any Subsidiary and
(ii) equity interests that are owned by the Borrower or any Subsidiary Loan
Party (in each case as of the Effective Date after giving effect to the
Transactions) (A) shall have been duly and validly pledged thereunder to
the Administrative Agent for the ratable benefit of the Secured Parties,
and (B) certificates representing such equity interests (except that such
certificates representing equity interests in a Foreign Subsidiary may be
limited to 65% of the outstanding shares of such partnership interests or
equity interests in such Foreign Subsidiary) and promissory notes
evidencing such intercompany Indebtedness shall be in the actual possession
of the Administrative Agent, accompanied by stock powers or other
instruments of transfer, endorsed in blank, with respect to such
certificates and such promissory notes.
(h) The Security Agreement shall have been duly executed by the
parties thereto, shall have been delivered to the Administrative Agent and
shall be in full force and effect, and all documents and
91
instruments, including Uniform Commercial Code financing statements,
required by law or reasonably requested by the Administrative Agent to be
filed, registered or recorded to create or perfect the Liens intended to be
created under the Security Agreement shall have been delivered to the
Administrative Agent.
(i) The Administrative Agent shall have received a completed
Perfection Certificate (giving effect to the Transactions) dated the
Effective Date and signed by an executive officer or Financial Officer of
the Borrower, together with all attachments contemplated thereby, including
the results of a search of the Uniform Commercial Code (or equivalent)
filings made with respect to the Borrower and the Subsidiary Loan Parties
in the jurisdictions contemplated by the Perfection Certificate and copies
of the financing statements (or similar documents) disclosed by such search
and evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(j) The Guarantee Agreement shall have been duly executed by the
Subsidiary Loan Parties and the Administrative Agent, shall have been
delivered to the Administrative Agent and shall be in full force and
effect.
(k) The Indemnity, Subrogation and Contribution Agreement shall have
been duly executed by the parties thereto, shall have been delivered to the
Administrative Agent and shall be in full force and effect.
(l) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect.
(m) The Administrative Agent shall have received from the Borrower a
photocopy, certified to be true and complete, of its Licenses for the MTAs
and BTAs listed in Schedule 3.14 and such Licenses shall be owned by the
Borrower free and clear of all Liens other than liens imposed by the
Communications Act.
(n) The Administrative Agent shall have received from the Borrower
conformed copies, certified and true
92
and complete, of (i) the Securities Purchase Agreement, (ii) the Network
License Agreement, (iii) the Stockholders Agreement, (iv) the Roaming
Agreement, (v) the Resale Agreement and (vi) the Special Purpose Subsidiary
Funding Agreements (copies of any of which will be delivered to any Lender
upon request), none of which shall contain any material adverse change to
the interests of the Lenders as compared with the final form of each such
agreement delivered to the Administrative Agent prior to the date hereof.
Each of the agreements referred to in the previous sentence (other than the
Resale Agreement) shall have been duly executed and delivered on behalf of
each party thereto, shall have been duly authorized thereby, and shall
constitute a legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms, subject to the effects of
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law); and
the Borrower shall have delivered to the Lenders a certificate of a
Responsible Officer as to the accuracy of the foregoing.
(o) To the extent not expressly contemplated in the final form of
Securities Purchase Agreement or the final form of Restated Certificate of
Incorporation delivered to the Administrative Agent prior to May 12, 1998,
the Administrative Agent shall be satisfied with (i) the corporate and
capital structure of the Borrower and its subsidiaries, (ii) the
contributions to the Borrower's equity and (iii) all legal, tax and
accounting matters related to the formation, capitalization and operations
of the Borrower.
(p) The Borrower shall have entered into (i) supply contracts with
vendors for the build out of the Network and the acquisition of related
equipment, and, to the extent material, such contracts shall be reasonably
satisfactory to the Administrative Agent and (ii) such other agreements
with third parties as may be reasonably necessary to the conduct of its
proposed operations in accordance with its business plan.
(q) The Borrower shall have received all scheduled cash capital
contributions set forth on
93
Schedule I to the Securities Purchase Agreement, including contributions of
$40,000,000 in cash on or prior to the Effective Date as set forth therein.
(r) Each of the Borrower, AW and the other parties thereto shall have
executed and delivered to the Administrative Agent consents to assignment
("Consents to Assignment") to the Administrative Agent for the benefit of
the Secured Parties, in form and substance satisfactory to the
Administrative Agent, with respect to the Securities Purchase Agreement,
the Network License Agreement and such of the other PCS Documents as are
requested by the Administrative Agent; provided, however, that the Consent
-------- -------
to Assignment with respect to AW shall be set forth in the Network License
Agreement and, with respect to the Network License Agreement, such Consent
to Assignment will not permit the Administrative Agent to assign the
Network License Agreement to any person other than the Lenders without
first obtaining AW's consent.
(s) The terms and conditions of any Subordinated Debt, if any, and
the provisions of the Subordinated Debt Documents, if any, shall be
satisfactory to the Lenders and the Administrative Agent shall have
received copies of any Subordinated Debt Documents, if any, certified by a
Responsible Officer as complete and correct.
(t) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions
or the other transactions contemplated hereby shall have been obtained, and
all applicable waiting periods and appeal periods shall have expired or,
with respect to the consent of the FCC to the License Transfer (as defined
in the Securities Purchase Agreement) a Final Order (as defined in the
Securities Purchase Agreement) shall have been obtained, in each case
without the imposition of any material conditions and there shall be no
governmental or judicial action, actual or threatened, that could
reasonably be expected to restrain, prevent or impose material conditions
on the Transactions or the other transactions contemplated hereby. To the
extent contemplated by the terms of this Agreement and the Securities
Purchase Agreement, the Transactions shall have been, or substantially
simultaneously with
94
the initial funding of Loans on the Effective Date shall be, consummated in
accordance with the PCS Documents and applicable law, without any amendment
to or waiver of any material terms or conditions of the PCS Documents not
approved by the Required Lenders. The Administrative Agent shall have
received copies of the PCS Documents and all certificates, opinions and
other documents delivered thereunder, certified by a Responsible Officer as
complete and correct and the PCS Documents shall contain no material
changes adverse to the interests of the Lenders compared to the final form
of such documents delivered to the Administrative Agent prior to May 12,
1998.
(u) The Lenders shall have received a pro forma consolidated balance
sheet of the Borrower as of the Closing Date, reflecting all pro forma
adjustments as if the Transactions had been consummated on such date, and
such pro forma consolidated balance sheets shall not be materially
inconsistent with the projections previously provided to the Lenders.
After giving effect to the Transactions, neither the Borrower nor any of
its Subsidiaries shall have outstanding any shares of preferred stock or
any Indebtedness, other than (i) Indebtedness incurred under the Loan
Documents, (ii) preferred stock of the Borrower issued to AW and the other
equity investors listed on Schedules I and II to the Securities Purchase
Agreement pursuant to the terms of the Securities Purchase Agreement, (iii)
Indebtedness owed to the FCC by THC in the amount of $13,000,000 (or, if
the THC San Diego Merger has occurred, $22,200,000), (iv) the Series A
Bonds and (v) the Subordinated Debt (if issued on or prior to the Closing
Date) in an amount not to exceed $350,000,000.
(v) The Administrative Agent shall have received from the Borrower
(i) the financial statements referred to in Section 3.04 and (ii) a
certificate dated the Effective Date and duly executed by a Responsible
Officer of the Borrower certifying that attached thereto is the annual
budget of the Borrower for the fiscal year ending December 31, 1998 as well
as a 10-year business plan of the Borrower satisfactory to the Lenders with
quarterly projections for at least the two-year period following the
Effective Date.
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(w) There shall have been no material adverse change in the business,
assets, results of operations, properties, prospects, financial condition
or material agreements of THC, the Borrower and the Restricted
Subsidiaries, taken as a whole, since December 31, 1997.
(x) The Borrower shall be in Pro Forma Compliance.
(y) After giving effect to the Transactions and the consummation of
the other transactions contemplated hereby, amounts available under this
Agreement shall be sufficient to meet the ongoing working capital
requirements of the Borrower and the Subsidiaries in accordance with the
projections set forth in the Information Memorandum.
(z) The amount of cash consideration received by the Borrower for the
sale of its stock pursuant to the Securities Purchase Agreement plus the
amount of cash consideration payable by investors for stock of the Borrower
pursuant to binding commitments with the Borrower set forth in the
Securities Purchase Agreement, shall be at least $128,000,000 or, if the
Supplemental Closing (as defined in the Securities Purchase Agreement)
occurs, at least $133,000,000. The amount of cash consideration received
by the Borrower for the sale of its stock to Equity Participants other than
AW in connection with (x) the San Juan Acquisition (if such acquisition
occurs on or prior to the Closing Date) shall be at least $39,700,000 and
(y) the THC San Diego Merger (if such merger occurs on or prior to the
Closing Date) shall be at least $41,000,000. The Agents shall be satisfied
with the identity of the equity holders of the Borrower other than AW and
the Equity Participants. The Administrative Agent shall be satisfied with
the identity of the equity holders of the Borrower other than AW and the
Equity Participants.
(aa) THC shall have become a wholly owned subsidiary of the Borrower.
(bb) The Extended Payment Terms Facility between the Borrower and
Lucent shall have been repaid in full and all security interests relating
thereto shall have been released.
96
(cc) The Borrower shall have purchased the Licenses described in Part
D of Schedule 3.14 from AW for cash consideration of not more than
$21,000,000.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
shall not become effective unless each of the foregoing conditions is satisfied
(or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City
time, on the date hereof (and, in the event such conditions are not so satisfied
or waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
------------------
make a Loan on the occasion of any Borrowing and of the Issuing Bank to issue
Letters of Credit, is subject to the satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects on
and as of the date of such Credit Event except with respect to
representations and warranties expressly made only as of the date hereof or
the Effective Date which shall be true in all material respects as of such
date.
(b) At the time of and immediately after giving effect to such Credit
Event no Default shall have occurred and be continuing and the Borrower
shall be in Pro Forma Compliance.
(c) At the time of and immediately after giving effect to such Credit
Event, the Borrower shall be in Pro Forma Compliance with (i) if the
Subordinated Debt has not been issued, the covenant set forth in subsection
6.12(a) and (ii) if the Subordinated Debt has been issued, the covenant set
forth in subsection 6.12(b); provided, however, that, after the Borrower
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delivers the financial statements required for the fiscal quarter ended
December 31, 2001 pursuant to Section 5.01, this clause (c) shall be deemed
to have been satisfied if at the time of and immediately after giving
effect to such Credit Event, the Borrower is in
97
pro forma compliance with the covenants set forth in Section 6.12(g) and
(i).
Each Credit Event shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b) and (c) of this Section.
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 and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed 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 and each Lender:
(a) within 90 days after the end of each fiscal year 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 Coopers & Lybrand, 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
Restricted 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, 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
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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 Restricted 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 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 6.08 and 6.12
and (iii) stating whether any change in GAAP or in the application thereof
has occurred since the date of the Borrower's 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;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting
rules or guidelines);
(e) no more than 90 days after the commencement of fiscal year 1999
and no more than 45 days after the commencement of each other fiscal year,
a detailed consolidated budget for such fiscal year, broken down by fiscal
quarters (including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and for
each such fiscal quarter) and, promptly when available, any significant
revisions of such budget;
99
(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, as the case may
be;
(g) within 45 days after the end of each calendar month, a certificate
of a Responsible Officer setting forth (A) the aggregate number of
Subscribers at the end of the calendar month preceding such calendar month
and (B) the aggregate number of Subscribers at the end of such calendar
month;
(h) within 45 days after the end of each fiscal quarter, a certificate
of a Responsible Officer setting forth (A) the aggregate number of
Subscribers whose service terminated during such fiscal quarter, (B) the
aggregate number of Subscribers added during such fiscal quarter and (C)
certain revenue and system build information;
(i) within five Business Days after the same are sent, a copy of any
financial statement, report or notice which the Borrower or any Subsidiary
sends to any Person under or pursuant to or in connection with the
Securities Purchase Agreement, the Network License Agreement, the
Stockholders Agreement, the Roaming Agreement, the Resale Agreement or any
other PCS Document, in each case if such statement, report or notice
relates to an event that has resulted or could reasonably be expected to
result in an Event of Default or a Material Adverse Effect; and, within
five Business Days after the same are received by the Borrower or any
Subsidiary, copies of all notices sent to any such Person under or pursuant
to or in connection with any such agreement or instrument which notice
relates to an event that has resulted or could reasonably be expected to
result in an Event of Default or a Material Adverse Effect;
(j) concurrently with any delivery of financial statements under
clause (a) or (b) above, a balance sheet and related statements of
operations, stockholders' equity and cash flows for each
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Unrestricted Subsidiary for the applicable period (each of which may be
unaudited); and
(k) 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, or such consolidating financial statements, or such financial
statements showing the results of operations or financial condition of any
Unrestricted Subsidiary, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. Upon a Responsible Officer
---------------------------
having knowledge of the following, the Borrower will furnish to the
Administrative Agent, the Issuing Bank and each Lender prompt written notice of
the following:
(a) the occurrence of any Default;
(b) 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 Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) 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 a Material Adverse Effect; and
(d) any other development (other than general economic conditions and
developments affecting the wireless industry generally) 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 Administrative Agent
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prompt written notice of any change (i) in any Loan Party'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 any Loan Party'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 owned by it is located (including the establishment
of any such new office or facility), (iii) in any Loan Party's identity or
corporate structure or (iv) in any Loan Party's Federal Taxpayer Identification
Number. 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 that are required in order for the Administrative
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Borrower also agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer of the Borrower (i) setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming that there has
been no change in such information since the date of the Perfection Certificate
delivered on the Effective Date or the date of the most recent certificate
delivered pursuant to this Section and (ii) certifying that all Uniform
Commercial Code financing statements (including fixture filings, as applicable)
or other appropriate filings, recordings or registrations, including all
refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above
to the extent necessary to protect and perfect the security interests under the
Security Agreement for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. The Borrower will, and
-------------------------------
will cause each of its Subsidiaries
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to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its legal existence and except to the extent it could not
reasonably be expected to have a Material Adverse Effect, all the rights,
licenses, permits, privileges, franchises, patents, copyrights, trademarks and
trade names used in or necessary for the conduct of its business; provided that
--------
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.
SECTION 5.05. Payment of Obligations. The Borrower will, and will
-----------------------
cause each of its Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, 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 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 its Subsidiaries to, maintain (i) all property necessary to the
conduct of its business in good working order and condition with such exceptions
as would not have a Material Adverse Effect and (ii) its accounting, software
and billing systems and controls at a level consistent with the standards of
other reputable wireless services providers and reasonably required in
connection with the Borrower's business.
SECTION 5.07. Insurance. The Borrower will, and will cause each of
----------
its Subsidiaries to, maintain, with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are usually insured against by companies engaged in the same
or a similar business in the same or similar locations, and furnish to the
Administrative Agent, promptly upon written request therefor, full information
as to the insurance carried.
SECTION 5.08. Casualty and Condemnation. (a) The Borrower will
--------------------------
furnish to the Administrative Agent and the Lenders prompt written notice of any
casualty or
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other insured damage to any portion of any Collateral or the commencement of any
action or proceeding for the taking of any 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 Administrative 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 Administrative Agent; provided that (i) if the
--------
aggregate Net Proceeds in respect of such event (other than proceeds of business
income insurance) are less than $3,000,000, such Net Proceeds shall be paid over
to the Borrower unless a Default has occurred and is continuing, and (ii) all
proceeds of business income insurance 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 Administrative Agent shall be held by the Administrative 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 Document (subject to the provisions of the applicable Security Document
regarding application of such Net Proceeds during a Default).
(c) If any Net Proceeds retained by or paid over to the
Administrative Agent as provided above continue to be held by the Administrative
Agent on the date that is 270 days after the occurrence of the event resulting
in such Net Proceeds, then such Net Proceeds shall be applied to prepay Term
Borrowings as provided in Section 2.09(b).
SECTION 5.09. Books and Records; Inspection and Audit Rights. The
-----------------------------------------------
Borrower will, and will cause each of its Subsidiaries to, keep proper books of
record and account in which entries which are accurate and complete in all
material respects are made of all dealings and transactions in relation to its
business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by 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,
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all at such reasonable times and as often as reasonably requested.
SECTION 5.10. Compliance with Laws. The Borrower will, and will
---------------------
cause each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property and to
comply in all respects with all of its Contractual Obligations, 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 5.11. Use of Proceeds. The proceeds of the Loans, together
----------------
with the proceeds of the Initial Equity Contributions and the Subordinated Debt,
if any, will be used only to fund capital expenditures related to the
construction of the Network, the acquisition of Related Businesses, working
capital needs of the Borrower and subscriber acquisition costs and Letters of
Credit will be issued only to support payment obligations incurred in the
ordinary course of business by the Borrower and the Restricted Subsidiary. No
part of the proceeds of any Loan and no Letter of Credit will be used, whether
directly or indirectly, (i) to make any investment in, or finance the
acquisition of, any Unrestricted Subsidiary or (ii) for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations U and
X.
SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary
------------------------
is formed or acquired after the Effective Date, the Borrower will notify the
Administrative Agent and the Lenders thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to the Pledge Agreement (if such Subsidiary owns capital stock or intercompany
Indebtedness), the Security Agreement, the Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement as contemplated under each
agreement, within three Business Days after such Subsidiary is formed or
acquired and promptly take such actions to create and perfect Liens on such
Subsidiary's assets to secure the Obligations as the Administrative Agent or the
Required Lenders shall reasonably request and (b) if any shares of Capital Stock
or Indebtedness of such Subsidiary (other than an Unrestricted Subsidiary) are
owned by or on behalf of any Loan Party, the Borrower will cause such shares and
promissory notes evidencing such Indebtedness to be pledged pursuant to the
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Pledge Agreement within three Business Days after such Subsidiary is formed or
acquired (except that, if such Subsidiary is a Foreign Subsidiary, shares of
common stock of such Subsidiary to be pledged pursuant to the Pledge Agreement
may be limited to 65% of the outstanding shares of common stock of such
Subsidiary).
SECTION 5.13. Further Assurances. (a) The Borrower will, and will
-------------------
cause each Loan Party 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, or which the Administrative Agent or the Required Lenders 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, all at the expense of the Loan Parties. The Borrower also agrees
to provide to the Administrative Agent, from time to time upon 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 (including opinions of local counsel in the jurisdictions in which
assets of any Loan Party are located).
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Loan Party after the Effective Date (other than assets constituting
Collateral under the Security Documents that become subject to the Lien of the
Security Documents upon acquisition thereof), the Borrower will notify the
Administrative Agent and the Lenders 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 and will take, and
cause the Loan Parties to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect such Liens, including
actions described in paragraph (a) of this Section, all at the expense of the
Borrower. In addition, if (i) any License is acquired by the Borrower or any
Subsidiary (other than a License Subsidiary) the Borrower will promptly transfer
or cause the transfer to a License Subsidiary of such License, (ii) any Real
Property Assets
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(other than Restricted Real Property Assets, Secured Real Property Assets and
Excluded Real Property Assets) or any Real Property-Related Equipment (other
than Restricted Real Property-Related Equipment, Secured Real Property-Related
Equipment and Excluded Real Property Equipment) is acquired by the Borrower or
any Subsidiary (other than the Real Property Subsidiary) the Borrower will
promptly transfer or cause the transfer of such assets to the Real Property
Subsidiary, (iii) any Base Station is acquired by the Borrower or any Subsidiary
(other than the Equipment Subsidiary or the Real Property Subsidiary) the
Borrower will promptly transfer or cause the transfer of such Base Station to
the Equipment Subsidiary or the Real Property Subsidiary and (iv) any fee
interests in real property having at the time of acquisition thereof a purchase
price or fair market value greater than $1,000,000 (a "Mortgaged Property") are
------------------
acquired by the Borrower or any Subsidiary after the date hereof (including
Mortgaged Properties of any Person that becomes a Subsidiary or is merged with
or into or consolidated with the Borrower or any Subsidiary) the Borrower will
promptly create or cause to be created a first priority perfected Mortgage in
favor of the Administrative Agent for the benefit of the Secured Parties on, and
pay all recording taxes, title insurance costs, survey costs and other costs in
connection with such Mortgage.
SECTION 5.14. Interest Rate Protection. As promptly as practicable,
-------------------------
and in any event within 90 days after the Effective Date, the Borrower will
enter into, and thereafter until the final maturity of all the Loans, will
maintain in effect, one or more interest rate protection agreements with one or
more Lenders or Affiliates of Lenders on such terms as shall be reasonably
satisfactory to the Administrative Agent, the effect of which shall be to fix or
limit the interest cost to the Borrower with respect to at least 50% of the
outstanding Indebtedness of the Borrower (other than indebtedness which bears
interest at a fixed rate) at a maximum rate reasonably acceptable to the
Administrative Agent.
SECTION 5.15. Satisfaction of F-Block License Requirements. The
---------------------------------------------
Borrower and its Subsidiaries shall take all actions necessary to satisfy the
FCC's Very Small Business requirements and all Requirements of Law the Borrower
and its Subsidiaries are required to comply with in order for the Borrower and
THC to be permitted to hold F-Block Licenses.
107
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
and all Letters of Credit have been canceled or have expired and all amounts
drawn thereunder have been reimbursed in full, the Borrower covenants and agrees
with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The
----------------------------------------
Borrower will not, and will not permit any Restricted Subsidiary to, create,
incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt issued on terms reasonably satisfactory to
the Required Lenders in an aggregate principal amount not to exceed
$350,000,000 minus the principal amount of any Series B Bonds outstanding;
provided that the proceeds of the Subordinated Debt shall be used by the
--------
Borrower solely to fund the build-out of the Network and to make
prepayments of the Series B Bonds permitted by Section 6.08(b)(vi);
(iii) Indebtedness of the Borrower to any Restricted Subsidiary (other
than any Special Purpose Subsidiary) and of any Restricted Subsidiary
(other than any Special Purpose Subsidiary) to the Borrower or any other
Restricted Subsidiary (other than any Special Purpose Subsidiary); provided
--------
that Indebtedness of any Restricted Subsidiary that is not a Loan Party to
the Borrower or any Subsidiary Loan Party shall be subject to Section 6.05;
(iv) Guarantees by the Borrower of Indebtedness of any Restricted
Subsidiary (other than any Special Purpose Subsidiary) and by any
Restricted Subsidiary (other than any Special Purpose Subsidiary) of
Indebtedness of the Borrower or any other Restricted Subsidiary (other than
any Special Purpose Subsidiary); provided that (i) Guarantees by the
--------
Borrower or any
108
Subsidiary Loan Party of Indebtedness of any Subsidiary that is not a Loan
Party shall be subject to Section 6.05 and (ii) a Subsidiary shall not
Guarantee the Series A Bonds or the Series B Bonds and shall not Guarantee
the Subordinated Debt unless (A) such Subsidiary also has Guaranteed the
Obligations pursuant to the Guarantee Agreement, (B) such Guarantee of the
Subordinated Debt is subordinated to such Guarantee of the Obligations on
terms no less favorable to the Lenders than the subordination provisions of
the Subordinated Debt and (C) such Guarantee of the Subordinated Debt
provides for the release and termination thereof, without action by any
party, upon any release and termination of such Guarantee of the
Obligations;
(v) the Series A Bonds in an aggregate principal amount not to exceed
$80 million at any time outstanding and the Series B Bonds of the Borrower
in an aggregate principal amount not to exceed $80 million at any time
outstanding; provided, however, that (i) the proceeds of such bonds shall
-------- -------
be used by the Borrower solely to fund the build-out of the Network,
including in the Expansion Areas (as defined in the Lucent Note Purchase
Agreement), (ii) such bonds will be subordinated to all the Obligations on
the terms set forth in the Lucent Note Purchase Agreement and (iii) until 6
months after the Tranche B Maturity Date, no principal or interest payments
may be made with respect thereto except for (x) prepayments of the Series B
Bonds in accordance with the terms of Section 10.5 of the Lucent Note
Purchase Agreement and (y) prepayments of the Series A Bonds with up to 50%
of the net cash proceeds received from the issuance and sale of equity
securities by the Borrower; provided, that no prepayment of the Series A
-------- ----
Bonds will be made as a result of (A) sales of stock necessary to provide
the initial $128,000,000 of cash equity capitalization of the Borrower or,
if the Supplemental Closing (as defined in the Securities Purchase
Agreement) occurs, the initial $133,000,000 of cash equity capitalization
of the Borrower, (B) the issuance by the Borrower of approximately
$39,900,000 of stock to AW and approximately $39,700,000 of stock to
certain of the Equity Participants in connection with the San Juan
Acquisition and (C) the issuance of approximately $4,800,000 million of
stock to stockholders of THC
109
San Diego and approximately $41,000,000 of stock to certain of the Equity
Participants in connection with the THC San Diego Merger.
(vi) Capital Lease Obligations of the Borrower or any Restricted
Subsidiary (other than any Special Purpose Subsidiary) with respect to the
leasing of tower sites and equipment that is a fixture thereto; provided
--------
that such Capital Lease Obligations shall not exceed $25,000,000 in
aggregate principal amount at any time outstanding;
(vii) Indebtedness (other than Indebtedness described in (v) or (vi)
above) of the Borrower or any Restricted Subsidiary (other than any Special
Purpose Subsidiary) 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
or result in an earlier maturity date or decreased weighted average life
thereof; provided that such Indebtedness is incurred prior to or within 180
--------
days after such acquisition or the completion of such construction or
improvement and shall not exceed $10,000,000 in aggregate principal amount
at any time outstanding;
(viii) FCC Debt assumed in connection with (a) the THC San Diego
Merger in the amount of $8,200,000, (b) the Mercury Acquisition in the
amount of $4,100,000 and (c) the Wireless 2000 Acquisition in the amount of
$7,000,000.
(ix) Indebtedness other than FCC Debt permitted by clause (viii) of
any Restricted Subsidiary acquired after the date hereof; provided that (A)
such Indebtedness exists at the time such Restricted Subsidiary is acquired
and is not created in contemplation of or in connection with such
acquisition and (B) the aggregate Indebtedness acquired in connection with
all such acquisitions does not exceed $20,000,000 at any time outstanding
and (C) the
110
aggregate Indebtedness acquired which is not FCC Debt does not exceed
$5,000,000;
(x) Indebtedness of the Borrower and the Restricted Subsidiaries
existing on the date hereof and set forth on Schedule 6.01;
(xi) Indebtedness arising under customary indemnification and
purchase price adjustment obligations incurred in connection with asset
sales permitted by Section 6.06(c);
(xii) Indebtedness incurred to refinance any Indebtedness permitted
under clauses (ix) and (x) of this Section 6.01; provided that (a) such
--------
refinancing Indebtedness (i) shall not have a greater outstanding principal
amount, an earlier maturity date or a decreased weighted average life than
the Indebtedness refinanced and (ii) shall be subordinated to the
Indebtedness created under the Loan Documents to at least the extent of,
and shall otherwise be issued on terms no less favorable in any material
respect to the Lenders than, the Indebtedness refinanced and (b) the
proceeds of such Indebtedness shall be used solely to repay the
Indebtedness refinanced thereby and fees and expenses in connection
therewith; and
(xiii) other unsecured Indebtedness of the Borrower and the Restricted
Subsidiaries (other than any Special Purpose Subsidiary); provided that the
--------
aggregate principal amount of such Indebtedness shall not exceed $3,000,000
at any time outstanding.
(b) The Borrower will not, and will not permit any Restricted
Subsidiary to, issue any preferred stock (other than preferred stock of the
Borrower issued pursuant to the terms of the Securities Purchase Agreement or in
connection with acquisitions permitted by Section 6.05 and Series E Preferred
Stock issued in connection with employee compensation plans) or be or become
liable in respect of any obligation (contingent or otherwise) to purchase,
redeem, retire, acquire or make any other payment in respect of any shares of
Capital Stock of the Borrower or any Subsidiary or any option, warrant or other
right to acquire any such shares of Capital Stock. No preferred stock issued by
the Borrower or any Restricted Subsidiary shall be mandatorily redeemable or
subject to mandatory purchase by the Borrower or any Restricted Subsidiary, and
no payments (including of
111
dividends) may be made (it being understood that dividends may accrue) in
respect thereof under any circumstances prior to the date that is six months
after the Tranche B Maturity Date (other than those dividend payments permitted
pursuant to Section 6.08(a)(iv)).
SECTION 6.02. Liens. The Borrower will not, and will not permit any
------
Restricted 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:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Restricted Subsidiary (other than the License Subsidiary or the Property
Subsidiary) existing on the date hereof and set forth in Schedule 6.02;
provided that (A) such Lien shall not apply to any other property or asset
--------
of the Borrower or any Restricted Subsidiary and (B) such Lien shall secure
only those obligations which it secures on the date hereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Restricted Subsidiary or
existing on any property or asset of any Person that becomes a Restricted
Subsidiary after the date hereof prior to the time such Person becomes a
Subsidiary; provided that (A) 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, (B) such Lien shall not apply to any other
property or assets of the Borrower or any Restricted Subsidiary and (C)
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
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any
112
Restricted Subsidiary; provided that (A) such security interests secure
--------
Indebtedness permitted by clause (vii) of Section 6.01(a), (B) such
security interests and the Indebtedness secured thereby are incurred prior
to or within 180 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed 100% of the cost of acquiring, constructing or improving such fixed
or capital assets and (D) such security interests shall not apply to any
other property or assets of the Borrower or any Restricted Subsidiary.
SECTION 6.03. Sale and Lease-Back Transactions. The Borrower will
---------------------------------
not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement, directly or indirectly, with any Person whereby it shall sell or
transfer any property, real or personal, used or useful in its business, whether
now owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose as the
property being sold or transferred, except for sales and lease-backs of towers
the Net Proceeds of which are used to prepay Loans pursuant to Section 2.09 (it
being understood that, in calculating Net Proceeds, lease and other related
payments arising in connection with any such sale and lease-back transaction
shall not be deducted from the proceeds received from the sale of any tower or
towers that are the subject of such sale and lease-back transaction).
SECTION 6.04. Fundamental Changes. (a) The Borrower will not, and
--------------------
will not permit any Restricted Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
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 (i)
any Restricted Subsidiary (other than any Special Purpose Subsidiary) may merge
into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Restricted Subsidiary (other than any Special Purpose
Subsidiary) may merge into any Restricted Subsidiary (other than any Special
Purpose Subsidiary) or another entity acquired pursuant to an acquisition
permitted hereunder in a transaction in which the surviving entity is a Wholly
Owned Restricted Subsidiary, (iii) any Restricted Subsidiary (other than any
Special Purpose Subsidiary) may
113
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, (iv) the THC San Diego Merger may be
consummated and (v) the Borrower or any Restricted Subsidiary (other than any
License Subsidiary or Property Subsidiary) may effect any acquisition permitted
by Section 6.05 by means of a stock-for-stock merger in which the Borrower or a
Wholly owned Restricted Subsidiary is the surviving corporation.
(b) The Borrower will not, and will not permit any of its Restricted
Subsidiaries to, engage in any business other than businesses of the type
conducted or contemplated to be conducted by the Borrower and its Restricted
Subsidiaries on the date of execution of this Agreement and Related Businesses.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions. The Borrower will not, and will not permit any of its Restricted
- -------------
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:
(a) Permitted Investments;
(b) investments existing on the date hereof and set forth on Schedule
6.05(b), to the extent such investments would not be permitted under any
other clause of this Section;
(c) investments by the Borrower and its Restricted Subsidiaries (other
than any Special Purpose Subsidiary) in the Capital Stock of the Restricted
Subsidiaries; provided that any such shares of capital stock held by a Loan
--------
Party shall be pledged pursuant to the Pledge Agreement (subject to the
limitations applicable to common stock of a Foreign Subsidiary
114
referred to in Section 5.12) and no investments may be made in Subsidiaries
that are not Loan Parties;
(d) loans or advances made by the Borrower to any Restricted
Subsidiary and made by any Restricted Subsidiary to the Borrower or any
other Restricted Subsidiary; provided that any such loans and advances made
--------
by a Loan Party shall be evidenced by a promissory note pledged pursuant to
the Pledge Agreement and no loans or advances may be made to Subsidiaries
that are not Loan Parties;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that a Subsidiary shall not Guarantee the Subordinated Debt unless
--------
(A) such Subsidiary also has Guaranteed the Obligations pursuant to the
Guarantee Agreement, (B) such Guarantee of the Subordinated Debt is
subordinated to such Guarantee of the Obligations on terms no less
favorable to the Lenders than the subordination provisions of the
Subordinated Debt and (C) such Guarantee of the Subordinated Debt provides
for the release and termination thereof, without action by any party, upon
any release and termination of such Guarantee of the Obligations;
(f) 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;
(g) the San Juan Acquisition;
(h) the THC San Diego Merger;
(i) the Mercury Acquisition;
(j) the Wireless 2000 Acquisition;
(k) the LMDS Merger;
(l) Other acquisitions in which the only consideration paid by the
Borrower or any Restricted Subsidiary consists of Capital Stock of the
Borrower;
115
(m) Loans and advances to employees in an amount not to exceed
$250,000 at any time outstanding; and
(n) Investments by the Borrower in Unrestricted Subsidiaries funded
with the proceeds of capital contributed to the Borrower specifically for
such purpose and not required to be contributed to the Borrower pursuant to
the Securities Purchase Agreement in an aggregate amount for all such
Unrestricted Subsidiaries not to exceed $50,000,000.
SECTION 6.06. Asset Sales. The Borrower will not, and will not
------------
permit any Restricted Subsidiary to, sell, transfer, lease or otherwise dispose
of any asset, including any Capital Stock, nor will the Borrower permit any of
its Restricted Subsidiaries to issue any additional shares of Capital Stock or
other ownership interest in such Restricted Subsidiary, except in the case of
the Borrower and its Restricted Subsidiaries:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a Restricted
Subsidiary; provided that any such sales, transfers or dispositions
--------
involving a Restricted Subsidiary that is not a Loan Party shall be made in
compliance with Section 6.09;
(c) sales, transfers and dispositions of assets (other than capital
stock of a Restricted Subsidiary) that are not permitted by any other
clause of this Section; provided that the aggregate fair market value of
--------
all assets sold, transferred or otherwise disposed of in reliance upon this
clause (c) shall not exceed $1,000,000 during any fiscal year of the
Borrower;
(d) so long as after giving effect thereto the Borrower is in Pro
Forma Compliance, any License Swap and any Swap of License Related Assets
in connection therewith, provided that, (i) the aggregate number of Pops in
--------
the BTAs and MTAs covered by the License or Licenses that are the subject
of all License Swaps (other than the San Diego Swap) in each fiscal year
may not exceed 10% of the Initial Pops and (ii) the fair market value of
the License Related Assets that are the
116
subject of Swaps of License Related Assets in each fiscal year may not
exceed $2,000,000;
provided that all sales, transfers, leases and other dispositions permitted
- --------
hereby shall be made for fair value and, except in the case of clause (d),
solely for cash consideration.
SECTION 6.07. Hedging Agreements. The Borrower will not, and will
-------------------
not permit any Restricted Subsidiary to, enter into any Hedging Agreement, other
than (a) Hedging Agreements required by Section 5.14 and (b) Hedging Agreements
entered into in the ordinary course of business to hedge or mitigate risks to
which the Borrower or any Restricted Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
------------------------------------------------------
(a) The Borrower will not, nor will it permit any Restricted Subsidiary to,
declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, except (i) the Borrower may declare and pay dividends with respect to
its capital stock payable solely in additional shares of Common Stock or
warrants to purchase its Common Stock, (ii) Restricted Subsidiaries may declare
and pay dividends ratably with respect to their capital stock; provided that no
--------
distribution referred to in this clause (ii) shall be permitted to be made by
any Special Purpose Subsidiary if any Default or Event of Default shall have
occurred and be continuing or would result therefrom, (iii) the Borrower may
make Restricted Payments, not exceeding $1,000,000 during any fiscal year,
pursuant to and in accordance with stock option plans or other benefit plans for
management or employees of the Borrower and its Subsidiaries and (iv) following
the end of the fiscal year of the Borrower ending December 31, 2001, and
following the end of each subsequent fiscal year, the Borrower may pay cash
dividends with respect to the Series A Preferred Stock in an amount not in
excess of 50% of Excess Cash Flow for such fiscal year; provided that the
--------
prepayments required by Section 2.09(c) have previously been made.
(b) The Borrower will not, and will not permit any Restricted
Subsidiary to, make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash securities or other property) of or in
117
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments
as and when due in respect of any Indebtedness permitted by Section
6.01(a), other than (x) payments in respect of the Subordinated Debt
prohibited by the subordination provisions thereof and (y) payments in
respect of the Series A Bonds or the Series B Bonds prohibited by the
proviso in 6.01(a)(v);
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness permitted by Section 6.01(a)
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(v) mandatory prepayments of the Series A Bonds as a result of the
issuance of equity securities by the Borrower with up to 50% of the net
cash proceeds of any such issuance; provided, that, no prepayment of the
-------- ----
Series A Bonds will be made in connection with (i) sales of stock necessary
to provide the initial $128,000,000 of cash equity capitalization of the
Borrower or, if the Supplemental Closing (as defined in the Securities
Purchase Agreement) occurs, the initial $133,000,000 of cash equity
capitalization of the Borrower, (ii) the issuance by the Borrower of
approximately $39,900,000 of stock to AW and approximately $39,700,000 of
stock to other Equity Participants in connection with the San Juan
Acquisition and (iii) the issuance of the Borrower of approximately $4.0
million of stock to stockholders of THC San Diego and approximately
$41,000,000 of stock to certain Equity Participants in connection with the
THC San Diego Merger); and
118
(vi) mandatory prepayments of the Series B Bonds in accordance with
the terms of Section 10.5 of the Lucent Note Purchase Agreement.
SECTION 6.09. Transactions with Affiliates. The Borrower will not,
-----------------------------
and will not permit any Restricted 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, any
of its Affiliates, except (a) transactions in the ordinary course of business
that are at prices and on terms and conditions (taken as a whole) not less
favorable to the Borrower or such Restricted Subsidiary than could be obtained
on an arm's-length basis from unrelated third parties, (b) transactions between
or among the Borrower and the Restricted Subsidiary Loan Parties not involving
any other Affiliate, (c) any Restricted Payment permitted by Section 6.08, (d)
transactions consummated pursuant to the PCS Documents and (e) payments by the
Borrower to Telecorp Management Corp. pursuant to the Management Agreement.
SECTION 6.10. Restrictive Agreements. The Borrower will not, nor
-----------------------
will it permit any Restricted 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
Restricted Subsidiary to create, incur or permit to exist any Lien upon any of
its property or assets or (b) the ability of any Restricted Subsidiary to pay
dividends or other distributions with respect to any shares of its capital stock
or to make or repay loans or advances to the Borrower or any other Restricted
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Restricted
Subsidiary; provided that (i) the foregoing shall not apply to restrictions and
--------
conditions imposed by law or by any Loan Document or Subordinated Debt Document,
(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.10 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
119
(iv) 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 and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. The Borrower will
--------------------------------
not, and will not permit any Restricted Subsidiary to, amend, modify or waive
any of its rights under (a) any agreement relating to Material Indebtedness, (b)
its certificate of incorporation, by-laws or other organizational documents, (c)
the Special Purpose Subsidiary Funding Agreements, (d) the PCS Documents or (e)
the Master Lease, in the case of clauses (a), (b), (c) and (e) above, in a
manner adverse to the interests of the Lenders and, in the case of clause (d)
above, in a manner that could be adverse in a material respect to the interests
of the Lenders.
SECTION 6.12. Financial Covenants. (a) Senior Debt to Total
-------------------- --------------------
Capital. The Borrower will not permit the ratio of Senior Debt to Total Capital
- --------
on any day on which a Borrowing occurs and the last day of each fiscal quarter
to exceed .50 to 1.00; provided, however, that if (i) all Unfunded Commitments
-------- -------
(as defined in the Securities Purchase Agreement) have been contributed in full
in cash to the Borrower and (ii) Covered Pops meet or exceed 60% of the
aggregate number of Pops within the Licensed Territory (as defined in the
Network License Agreement) then the ratio of Senior Debt to Total Capital may
exceed .50 to 1.00 but shall not exceed .55 to 1.00.
(b) Total Debt to Total Capital. The Borrower will not permit the
----------------------------
ratio of Total Debt to Total Capital on any day on which a Borrowing occurs and
the last day of each fiscal quarter to exceed .70 to 1.00.
120
(c) Covered Pops. The Borrower will not permit Covered Pops as a
-------------
percentage of the total number of Pops in the BTAs and MTAs listed on Schedule
3.14 on or after any date set forth below to be less than the percentage set
forth opposite such date:
Minimum Covered
Date Pops
---- ---------------
June 30, 1999 35%
December 31, 1999 40%
June 30, 2000 50%
June 30, 2001 60%
June 30, 2002 65%
June 30, 2003 and thereafter 70%
(d) Subscribers. The Borrower will not permit the number of
------------
Subscribers on or after any date set forth below to be less than the number of
Subscribers set forth opposite such date:
Minimum
Date Subscribers
---- -----------
December 31, 1999 45,000
June 30, 2000 82,000
December 31, 2000 155,000
June 30, 2001 190,000
December 31, 2001 265,000
June 30, 2002 305,000
December 31, 2002 and thereafter 400,000
121
(e) Aggregate Service Revenue. The Borrower will not permit
--------------------------
Aggregate Service Revenue for any period of four consecutive fiscal quarters
ending on or after any date set forth below to be less than Aggregate Service
Revenue set forth opposite such date:
Minimum Aggregate
Date Service Revenue
---- -----------------
December 31, 1999 $ 12,500,000
June 30, 2000 $ 35,000,000
December 31, 2000 $ 65,000,000
June 30, 2001 $ 95,000,000
December 31, 2001 $135,000,000
June 30, 2002 $180,000,000
December 31, 2002 and thereafter $240,000,000
(f) Total Debt to Annualized EBITDA. The Borrower will not permit
--------------------------------
the ratio of (i) Total Debt outstanding on any day from and including (A) the
last day of any fiscal quarter set forth below through (B) the day immediately
preceding the last day of the immediately following fiscal quarter to (ii)
Annualized EBITDA for the period ending on the date referred to in clause (i)(A)
above to exceed the ratio set forth opposite such date:
Fiscal Quarter
Ending On Ratio
-------------- -----
September 30, 2002 25.0 to 1.00
December 31, 2002 20.0 to 1.00
March 31, 2003 16.0 to 1.00
June 30, 2003 13.0 to 1.00
September 30, 2003 10.0 to 1.00
December 31, 2003 8.5 to 1.00
March 31, 2004 7.5 to 1.00
June 30, 2004 6.5 to 1.00
September 30, 2004 5.5 to 1.00
December 31, 2004 and thereafter 4.5 to 1.00
122
(g) Total Debt to Annualized Adjusted EBITDA. The Borrower will not
-----------------------------------------
permit the ratio of (i) Total Debt outstanding on any day from and including (A)
the last day of any fiscal quarter set forth below through (B) the day
immediately preceding the last day of the immediately following fiscal quarter
to (ii) Annualized Adjusted EBITDA for the period ending on the date referred to
in clause (i)(A) above to exceed the ratio set forth opposite such date:
Fiscal Quarter
Ending On Ratio
-------------- -----
December 31, 2001 22.0 to 1.00
March 31, 2002 16.0 to 1.00
June 30, 2002 14.0 to 1.00
September 30, 2002 12.0 to 1.00
December 31, 2002 10.0 to 1.00
March 31, 2003 8.0 to 1.00
June 30, 2003 7.0 to 1.00
September 31, 2003 and thereafter 6.0 to 1.00
123
(h) Senior Debt to Annualized EBITDA. The Borrower will not permit
---------------------------------
the ratio of (i) Senior Debt outstanding on any day from and including (A) the
last day of any fiscal quarter set forth below through (B) the day immediately
preceding the last day of the immediately following fiscal quarter to (ii)
Annualized EBITDA for the period ending on the date referred to in clause (i)(A)
above to exceed the ratio set forth opposite such date:
Fiscal Quarter
Ending On Ratio
-------------- -----
September 30, 2002 18.0 to 1.00
December 31, 2002 13.0 to 1.00
March 31, 2003 10.0 to 1.00
June 30, 2003 8.5 to 1.00
September 30, 2003 6.5 to 1.00
December 31, 2003 5.5 to 1.00
March 31, 2004 4.5 to 1.00
June 30, 2004 4.0 to 1.00
September 30, 2004 and thereafter 3.0 to 1.00
124
(i) Senior Debt to Annualized Adjusted EBITDA. The Borrower will not
------------------------------------------
permit the ratio of (i) Senior Debt outstanding on any day from and including
(A) the last day of any fiscal quarter set forth below through (B) the day
immediately preceding the last day of the immediately following fiscal quarter
to (ii) Annualized Adjusted EBITDA for the period ending on the date referred to
in clause (i)(A) above to exceed the ratio set forth opposite such date:
Fiscal Quarter
Ending On Ratio
-------------- -----
September 30, 2001 21.0 to 1.00
December 31, 2001 17.0 to 1.00
March 31, 2002 12.0 to 1.00
June 30, 2002 10.0 to 1.00
September 30, 2002 8.0 to 1.00
December 31, 2002 6.0 to 1.00
March 31, 2003 5.0 to 1.00
June 30, 2003 and thereafter 4.0 to 1.00
(j) Interest Coverage Ratio. The Borrower will not permit the ratio
------------------------
of (i) Consolidated EBITDA for any period of four consecutive fiscal quarters
ending on any date or during any "Test Period" set forth below to (ii) Cash
Interest Expense for such period to be less than the ratio set forth opposite
such date or Test Period:
Date or Test Period Ratio
------------------- -----
December 31, 2002 1.00 to 1.00
March 31, 2003 - June 30, 2003 1.15 to 1.00
September 30, 2003 - June 30, 2004 1.25 to 1.00
September 30, 2004 - December 31, 2004 1.50 to 1.00
March 31, 2005 - June 30, 2005 2.00 to 1.00
September 30, 2005 and thereafter 2.25 to 1.00
(k) Fixed Charges Ratio. The Borrower will not permit the ratio of
--------------------
(i) Consolidated EBITDA for any period of four consecutive fiscal quarters
ending during any "Test Period" set forth below to Fixed Charges for such period
to be less than the ratio set forth opposite such Test Period:
125
Test Period Ratio
----------- -----
March 31, 2004 - December 31, 2004 1.00 to 1.00
March 31, 2005 and thereafter 1.10 to 1.00
(l) Capital Expenditures. The Borrower will not permit Capital
---------------------
Expenditures of the Borrower and its Restricted Subsidiaries for any period set
forth below to exceed the sum set forth opposite such period:
Period Amount
------ ------
Date of formation through $320,000,000
December 31, 1998
January 1, 1999 - December 31, 1999 $146,500,000
January 1, 2000 - December 31, 2000 $ 65,000,000
January 1, 2001 - December 31, 2001 $ 39,000,000
January 1, 2002 - December 31, 2002 $ 37,500,000
January 1, 2003 and thereafter $ 35,000,000
; provided that any permitted amount which is not expended in any of the periods
--------
specified above may be carried over for expenditure in the immediately
subsequent period.
SECTION 6.13. Liabilities of Special Purpose Subsidiaries. The
--------------------------------------------
Borrower will not:
(a) permit any License Subsidiary to incur, assume or permit to exist
any liabilities (other than under the Guarantee Agreement and the Security
Agreement, the Communications Act, FCC Debt and taxes and other liabilities
incurred in the ordinary course in order to maintain its existence) or to
engage in any business or activities other than the holding of Licenses;
(b) permit the Real Property Subsidiary to incur, assume or permit to
exist any liabilities (other than (i) under the Guarantee Agreement and the
Security Agreement, (ii) other liabilities incurred in the ordinary course
of business which are incident to being the lessee of real property or the
purchaser, owner or lessee of equipment and (iii) taxes and other
liabilities in the ordinary course in order to maintain its existence) or
to engage in any business or activities
126
other than the owning or leasing, as lessee, of Real Property Assets and
the leasing, as lessor, or, as the case may be, subleasing, as sublessor,
thereof to the Borrower, and the owning of Real Property-Related Equipment
constituting fixtures thereto and the leasing thereof to the Borrower; or
(c) permit the Equipment Subsidiary to incur, assume or permit to
exist any liabilities (other than (i) under the Guarantee Agreement and the
Security Agreement, (ii) other liabilities incurred in the ordinary course
of business which are incident to being the lessor of equipment or the
purchaser or owner of equipment and (iii) taxes and other liabilities
incurred in the ordinary course in order to maintain its existence) or to
engage in any business or activities other than the owning of equipment and
the leasing thereof, as lessor, to the Borrower or another Restricted
Subsidiary.
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 or the
reimbursement with respect to any L/C Disbursement 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;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or L/C Disbursement or any other amount (other than an amount referred to
in clause (a) of this Article) payable under this Agreement or any other
Loan Document, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other
127
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 Section 5.02, 5.04 (with respect to the
existence of the Borrower) or 5.11 or in Article VI;
(e) any Loan Party 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) any Loan Party shall fail to make any payment (whether of
principal or interest or otherwise 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 or other
relief in respect of any Loan Party 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
128
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 undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) any Loan Party shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization 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 the Borrower or any Subsidiary 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) any Loan Party 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 (to the extent not covered by insurance)
shall be rendered against the Borrower, any Loan Party or any combination
thereof and the same shall remain undischarged for a period of 30
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, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
129
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any 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, (ii) as a result of the Administrative Agent's failure
to maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under the Pledge Agreement or the
Administrative Agent's failure to file necessary continuation financing
statements or make required filings with the Patent and Trademark Office of
the United States of America after delivery to the Administrative Agent by
the Borrower of executed copies of such financing statements and filings or
(iii) to the extent such loss is covered by a title insurance policy in
favor of the Administrative Agent in which the relevant insurer has not
denied liability thereunder;
(n) any of the Security Documents shall cease to be or shall be
asserted by any Loan Party not to be in full force and effect;
(o) the Guarantee Agreement shall cease to be or shall be asserted by
any Loan Party not to be in full force and effect;
(p) a Change in Control shall occur;
(q) the failure of the Borrower to make any payments required to be
made to the FCC or any other Governmental Authority with respect to any
License held by the Borrower or any Subsidiary or any Indebtedness or other
payment obligations relating thereto as and when due which failure could
reasonably be expected to lead to the loss, termination, revocation, non-
renewal or material impairment of any License or otherwise result in a
Material Adverse Effect;
(r) any termination (prior to the expiration of its term), revocation
or non-renewal by the FCC of one or more Licenses of the Borrower or its
Subsidiaries;
(s) the Borrower's right to use any "AT&T" trademark (other than any
trademark which AT&T itself no
130
longer uses) pursuant to the Network License Agreement shall terminate (it
being understood that, on or after the date which is five years from the
Effective Date, neither the non-renewal of the Network License Agreement by
AW nor the termination of the Network License Agreement by AW as a result
of a Disqualifying Transaction (as defined in the Stockholders Agreement)
shall constitute an Event of Default hereunder);
(t) the loss by any Loan Party of any rights to the benefit of, or the
occurrence of any default or the termination of any rights under, any
application, marketing or other material agreements, which loss, occurrence
or termination could reasonably be expected to have a Material Adverse
Effect;
(u) the failure of any party to the Securities Purchase Agreement or
the Stockholders Agreement to comply with any funding or contribution
obligation under such Agreement and such failure shall continue unremedied
for a period of 30 days;
(v) the failure by the Borrower to satisfy the FCC's Very Small
Business requirements or any Requirements of Law the Borrower is required
to comply with in order to hold an F-Block License, including any such
failure which leads to the imposition of a penalty, fine or similar
enforcement measure by the FCC;
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,
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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.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative 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 the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise 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, the Administrative Agent shall not
have any
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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 the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not 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 wilful misconduct. The Administrative
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 the Administrative Agent shall not 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 the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative 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.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative
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Agent. The Administrative 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 Administrative 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 Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower (unless an Event of Default has occurred and is
continuing), to appoint a successor from among the other Lenders. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders and the Issuing Bank, appoint a successor Administrative
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
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative 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 Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative 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
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acknowledges that it will, independently and without reliance upon the
Administrative 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.
ARTICLE IX
Miscellaneous
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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 it at 1101 17th Street, N.W., Washington,
D.C. 20036, Attention of Thomas Sullivan and Robert Dowski (Telecopy No.
(202) 833-5036); with a copy to McDermott, Will & Emery, 50 Rockefeller
Plaza, New York, NY 10020, Attention of Jeffrey Dunetz (Telecopy No. (212)
547-5444);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Manhattan, 8th Floor, New York, New
York 10081, Attention of Donna Montgomery (Telecopy No. (212) 552-5700),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York, New
York 10017, Attention of William Rottino (Telecopy No. (212) 270-4584); and
(c) 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
135
provisions of this Agreement shall be deemed to have been given on the date of
receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
--------------------
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder or under any other 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
Issuing Bank and the Lenders hereunder and under the other 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 any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. 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 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 an
Expansion Facility Amendment, by the parties required to enter into such
amendment by Section 2.18 hereof) or, in the case of any other Loan Document,
pursuant to an agreement or agreements in writing entered into by the
Administrative Agent and the Loan Party or Loan Parties 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 or increase the aggregate Commitments (other than
pursuant to Section 2.18) without the consent of each Lender, (ii) reduce the
principal amount of any Loan or L/C Disbursement 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
136
principal amount of any Loan or L/C Disbursement, 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 or amount of any reduction or 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 (or Lenders of any Class) 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 (or each Lender
of such Class, as the case may be), (vi) release any Subsidiary Loan Party 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, (vii) release all or a substantial
part of the Collateral from the Liens of the Security Documents, without the
written consent of each Lender (provided, however, that the sale of up to 20% of
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the equity interests in the general partner of the Equipment Subsidiary shall
require the consent only of the Required Lenders), (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 or (ix) change the rights of the Tranche B
Lenders to decline mandatory prepayments as provided in Section 2.09, without
the written consent of Tranche B Lenders holding a majority of the outstanding
Tranche B Loans; provided further that (A) no such agreement shall amend, modify
----------------
or otherwise affect the rights or duties of the Administrative Agent or the
Issuing Bank without the prior written consent of the Administrative Agent or
the Issuing Bank, as the case may be, and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or duties
under this Agreement of the Revolving Lenders (but not the Tranche A Lenders and
Tranche B Lenders), the Tranche A Lenders (but not the Revolving Lenders and
Tranche B Lenders) or the Tranche B Lenders (but not the Revolving Lenders and
Tranche A Lenders) may be effected by an agreement or agreements in
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writing entered into by the Borrower and requisite percentage in interest of the
affected Class of Lenders.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
-----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Issuing Bank and their Affiliates, including due
diligence expenses and the reasonable fees, charges and disbursements of counsel
for the Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation, execution, delivery and
administration of the Loan Documents or the other documentation contemplated
hereby or thereby or any amendments, modifications or waivers of the provisions
thereof (whether or not the transactions contemplated hereby or thereby shall be
consummated) and (ii) all out-of-pocket expenses incurred by the Administrative
Agent, the Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for the Administrative Agent, the Issuing Bank or
any Lender, in connection with (x) the enforcement or protection of its rights
in connection with the Loan Documents, including its rights under this Section,
or in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or related negotiations in respect of such Loans and Letters of
Credit, and (y) any documentary taxes associated with the consummation of the
Facilities.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank, and each Lender, 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 and any
Letter of Credit and the use thereof, (iii) any actual or alleged presence or
release of Hazardous Materials on or from any Mortgaged Property or any other
property owned or
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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 a final judgment (not
overturned or vacated on appeal) to have resulted from the gross negligence or
wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent under paragraph (a) or (b) of this
Section, each Lender severally agrees to pay to the Administrative Agent, 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 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 Revolving Exposures, outstanding Term Loans and unused Commitments
at the time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
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
139
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 Issuing Bank 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 assignees 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)
--------
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of a Revolving Commitment, the Issuing Bank) must give their prior
written consent to such assignment (which consent shall not be unreasonably
withheld, it being understood that the Borrower may reasonably withhold consent
to any proposed assignment to a Foreign Lender that does not qualify for a
complete exemption from withholding taxes), (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 and, after giving effect to such assignment, the remaining
aggregate amount of such assigning Lender's Commitment and Loans shall not be
less than $1,000,000, unless each of the Borrower and the Administrative Agent
otherwise consent, (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 proportionate part of all the assigning Lender's
rights and obligations in respect of one Class of Commitments or Loans, (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 (provided, however, that no such fee shall be payable in the case of an
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assignment to another Lender or an Affiliate of a Lender;
140
and provided further that, in the case of contemporaneous assignments by a
-------- -------
Lender to more than one fund managed by the same investment advisor (which funds
are not then Lenders hereunder), only a single $3,500 such fee shall be payable
for all such contemporaneous assignments) and (v) the assignee, if it shall not
be a Lender, shall deliver to the 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 in The City of New York 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 Issuing Bank 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 and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
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(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), the processing and recordation fee referred to in paragraph (b) of
this Section 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 Issuing Bank, 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 Issuing
Bank 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 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 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 provided that no Participant shall be entitled to
receive any greater amount pursuant to such Sections than the assigning Lender
would have been entitled to receive in respect of the amount of the
participation transferred had no such transfer occurred. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it
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were a Lender, provided such Participant agrees to be subject to Section 2.16(c)
as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. 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 Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement and any other Loan
Document 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 assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release
- --------
a Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
---------
and warranties made by the Loan Parties 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 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, 9.03 and 9.12 and Article VIII shall survive and remain in full
force and
143
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 Document and any separate letter agreements with respect to fees
payable to the Administrative 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 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.
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
144
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
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by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
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 or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank 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 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.
145
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document 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 (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.
146
SECTION 9.12. Confidentiality. Each of the Administrative 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 or (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 the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower or any
Affiliate of the Administrative Agent or the Lenders. For the purposes of this
Section, "Information" means all information received from or on behalf of the
-----------
Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower. 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.
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.
TELECORP PCS, INC.,
by
/s/ Thomas Sullivan
--------------------------------------
Name: Thomas Sullivan
Title: President
THE CHASE MANHATTAN BANK, individually and as
Administrative Agent,
by
/s/ Deborah Davey
--------------------------------------
Name: Deborah Davey
Title: Vice President
TORONTO DOMINION [TEXAS], INC.,
by
/s/ Debbie A. Greene
--------------------------------------
Name: Debbie A. Greene
Title: Vice President
BANKERS TRUST COMPANY, individually and as
Documentation Agent,
by
/s/ Gregory P. Ghefrin
--------------------------------------
Name: Gregory P. Ghefrin
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ Gerry Granovsky
--------------------------------------
Name: Gerry Granovsky
Title: Vice President
CIBC INC.,
by
/s/ Cynthia McCahill
--------------------------------------
Name: Cynthia McCahill
Title: Executive Director CIBC
Oppenheimer Corp., as Agent
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
by
/s/ R. Blake Witherington
--------------------------------------
Name: R. Blake Witherington
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION,
by
/s/ Molly S. Fergusson
--------------------------------------
Name: Molly S. Fergusson
Title: Manager, Operations
LEHMAN COMMERCIAL PAPER INC.,
by
/s/ William J. Gallagher
--------------------------------------
Name: William J. Gallagher
Title: Authorized Signatory
BANK OF TOKYO MITSUBISHI TRUST COMPANY,
by
/s/ Michael Deadder
--------------------------------------
Name: Michael Deadder
Title: Vice President
BANKBOSTON, N.A.,
by
/s/ Jeffrey A. Wellington
--------------------------------------
Name: Jeffrey A. Wellington
Title: Director
FLEET NATIONAL BANK,
by
/s/ William Weiss
--------------------------------------
Name: William Weiss
Title: Assistant Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
by
/s/ Michael Henderlong
--------------------------------------
Name: Michael Henderlong
Title: Vice President
MERRILL LYNCH SENIOR FLOATING RATE FUND,
INC.,
by
/s/ Andrew C. Liggio
--------------------------------------
Name: Andrew C. Liggio
Title: Authorized Signatory
SENIOR HIGH INCOME PORTFOLIO, INC.,
by
/s/ Andrew C. Liggio
--------------------------------------
Name: Andrew C. Liggio
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC.,
by
/s/ Andrew C. Liggio
--------------------------------------
Name: Andrew C. Liggio
Title: Authorized Signatory
FRANKLIN FLOATING RATE TRUST,
by
/s/ Chauncey Lufkin
--------------------------------------
Name: Chauncey Lufkin
Title: Vice President
SCHEDULE 1.01
Equity Participants
Chase Capital
Desai Capital
Hoak Capital
CB Capital Investors, L.P.
Equity-Linked Investors-II
Private Equity Investors III, L.P.
Hoak Communications Partners, L.P.
HCP Capital Fund, L.P.
Whitney Equity Partners, L.P.
J.H. Whitney III, L.P.
Whitney Strategic Partners III, L.P.
Entergy Technology Holding Company
Media/Communications Partners III Limited Partnership
Media/Communications Investors Limited Partnership
One Liberty Fund III, L.P.
Toronto Dominion Investments, Inc.
Northwood Ventures LLC
Northwood Capital Partnerships LLC
Gerald Vento
Thomas Sullivan
SCHEDULE 2.01
Commitments
Revolving Tranche A Tranche B
--------- --------- ---------
Lenders Commitment Commitment Commitment
------- ---------- ---------- ----------
The Chase Manhattan Bank 25,000,000 25,000,000 115,000,000
Toronto Dominion (Texas), Inc. 20,000,000 20,0000000 0
Bankers Trust Company 25,000,000 25,0000000 0
The Bank of New York 12,500,000 12,500,000 10,000,000
CIBC Inc. 12,500,000 12,500,000 10,000,000
Morgan Guaranty Trust
Company of New York 12,500,000 12,500,000 10,000,000
General Electric
Capital Corporation 12,500,000 12,500,000 5,000,000
Lehman Commercial
Paper Inc. 12,500,000 12,500,000 5,000,000
Bank of Tokyo Mitsubishi
Trust Company 7,500,000 7,500,000 0
BankBoston, N.A. 5,000,000 5,000,000 15,000,000
Fleet National Bank 5,000,000 5,000,000 5,000,000
Credit Lyonnais New
York Branch 0 0 20,000,000
Merrill Lynch Senior Floating
Rate Fund, Inc. 0 0 15,000,000
Senior High Income
Portfolio, Inc. 0 0 5,000,000
Debt Strategies Fund, Inc. 0 0 5,000,000
Franklin Floating Rate Trust 0 0 5,000,000
----------- ----------- -----------
Total 150,000,000 150,000,000 225,000,000
SCHEDULE 3.05
Real Property Owned or Leased
Owned: None.
Leased: See attached pages.
- -----------------------------------------------------------------------------------------------------
Landlord Execution Date Monthly Base Rent Assignment
- -----------------------------------------------------------------------------------------------------
Paula A. Dolan, May 29, 1998 $7,461.80 (1-5 yrs.) Permitted to
Trustee of Lease Status: Fully Affiliates
100 Tech Realty Executed
Trust, under
Declaration of
Trust dated April
4, 1998
13 Wheeling Avenue
Woburn, MA 01801
- -----------------------------------------------------------------------------------------------------
Facility: Switch
Facility Address:
155 Northboro Road
Southborough, MA
- -----------------------------------------------------------------------------------------------------
FIVE N ASSOCIATES October 17, 1997 $9,250.00 Permitted to
40 Temple Street First Supplement: May Lease Status: Fully Affiliates
Nashua, NH 03060 29, 1998 Executed
- -----------------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
20 Industrial Park Drive
Nashua, NH
- -----------------------------------------------------------------------------------------------------
Charles E. Smith June 5, 1998 $9,528.75 No assignment
Commercial Realty Lease Status: Fully provision is
1666 K Street, NW Executed contained within the
Suite 1200 agreement
Washington, DC 20006
- -----------------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
1101 17th Street,
N.W.
Suite 411
Washington, DC
- -----------------------------------------------------------------------------------------------------
Continental Poydras October 22, 1997 April 1- April 30: Prior written consent
Corporation Amended: March 30, $10,236.25 from the lessor is
1340 Poydras Street 1998 required. 60 day
Suite 1430 May 1, 1998- July 31, notice to be provided
New Orleans, LA 70112 1998: $10,986.25 including financial
information for the
Lease Status: Fully assignee
Executed
- -----------------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
1340 Poydras Street
Suite 550
New Orleans, LA
- -----------------------------------------------------------------------------------------------------
Three Financial October 23, 1997 $17,174.84 Need copy of Lease
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
Centre Joint Venture
900 So. Shackleford
Road
Suite 210
Little Rock, AR 72211
- -----------------------------------------------------------------------------------------------------
Facility:
Facility Address:
- -----------------------------------------------------------------------------------------------------
M. Arthur Gensler, March, 1998 $33,500.00 Prior consent from
Jr. & Associates, Lease Status: Fully the sublessor is
Inc. executed copy is required. Permitted
600 California required to affiliates
San Francisco, CA
94108
Attn: Ben Fisher
- -----------------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
1101 17th Street,
N.W.
Suite 900
Washington, D.C.
- -----------------------------------------------------------------------------------------------------
Richard Orgel November 1, 1997 $1,850.00 Permitted to
4091 Viscount Avenue Lease Status: Fully affiliates
Memphis, TN 38118 executed
- -----------------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
4357 Getwell Road
Memphis, TN
- -----------------------------------------------------------------------------------------------------
State of CA Public March 3, 1998 March 1, 1998- May Permitted to an
Employees' 31, 2003: $10,306.88 affiliate. Thirty
Retirement System day prior notice to
C/o LaSalle Advisors May 1, 2003-May 31, Lessor.
Limited 2008: $11,612.41
5910 North Central
Expressway, Suite Lease Status: Fully
1130 executed
Dallas, TX 75206
- -----------------------------------------------------------------------------------------------------
Facility: Switch
Facility Address:
Building "A"
Mendenhall Business
Center
4400 Mendenhall
- -----------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
Road
Suites 7 and 8
Memphis, TN
- ---------------------------------------------------------------------------------------------
Entergy Enterprises, September 1, 1997 $17,174.84 Permitted to an
Inc. affiliate
900 South Shackleford Status: Fully executed
Suite 210
Little Rock, AR 72211
- ---------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
Three Financial
Center
900 South
Shackleford Road
Sixth Floor
Little Rock, AR
- ---------------------------------------------------------------------------------------------
General Motors February 25, 1998 $18,015.00 Permitted to an
Corporation affiliate
3044 West Grand Blvd. Status: Fully Executed
Detroit, MI 48202
- ---------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
866 Ridgeway Loop
Suite 100
Memphis, TN
- ---------------------------------------------------------------------------------------------
First Industrial, February 27, 1998 $8,480.74 Permitted to an
L.P. Status: Require fully affiliate. Prior
311 So. Wacker Drive executed copy. notice is required.
Suite 4000
Chicago, IL 60606
Attn: Michael W.
Brennan
- ---------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
James Park
160 James Drive East
St. Rose, LA
- ---------------------------------------------------------------------------------------------
485 Properties, June 12, 1998 $70,257.83 Permitted to an
L.L.C. affiliate. Thirty
c/o LaSalle Partners Status: Fully executed day prior notice to
Management lessor required
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
Limited
1010 North Glebe Road
Arlington, VA 22201
- ---------------------------------------------------------------------------------------------
Facility: Office
Facility Address:
One Ballston Plaza
1010 North Glebe
Road
Arlington, VA
- ---------------------------------------------------------------------------------------------
Executed Lease Report
Little Rock
Site ID Landlord Name Site Address
LTR001 Dale Wilcox and Gail Wilcox 800 Gaines Street Little Rock Arkansas
LTR002 Inntowne Partners, Ltd. 600 Interstate 30 Little Rock Arkansas
LTR003 Mercantile Bank of Arkansas,
N.A., formerly One Riverfront Place North Little Rock Arkansas
known as The Twin City Bank
LTR006 John Mosley and Barry Mosley 10021 Highway 70 North Little Rock Arkansas
LTR007 William T. McCauley and Sonja G. McCauley 2700 Booker Street Little Rock Arkansas
LTR008 The Crestwood Company, an Arkansas 4801 North Hills
Partnership Boulevard North Little Rock Arkansas
LTR010 Rivercliff Company, Inc. 2000 Magnolia Avenue Little Rock Arkansas
LTR011 Centre Place Property Owners Association 212 Center Street Little Rock Arkansas
LTR015 Rosedale Optimist Club 8616 Asher Avenue Little Rock Arkansas
LTR018 Newman E. McGee, Jr. and Bonnie Sue McGee 901 Towne Oaks Drive Little Rock Arkansas
LTR024 Clarence Bryels 8510 Colonel Miller Road Little Rock Arkansas
LTR024 Daniel Lloyd Nunley #6 Hethwood Little Rock Arkansas
LTR024 Oak Park Baptist Church 8200 Flint Ridge Road Little Rock Arkansas
LTR025 Edward Culin and Emma Lou Culin 11209 Interstate 30 Little Rock Arkansas
LTR026 Doug Reynolds Suzuki of Little Rock, Inc. 9800 Highway I-30 Little Rock Arkansas
LTR027 Mid-South Appliance Store 7501 Enmar Drive Little Rock Arkansas
LTR028 Arkco, Inc. 3001 West 60th Street Little Rock Arkansas
LTR031 Maumelle Suburban Improvement District No. Off Milwood Circle Maumelle Arkansas
500
LTR032 Kay Bush 10306 Dairy Lane North Little Rock Arkansas
LTR03 Maumelle Suburban Improvement District No. #99 Club Manor Maumelle Arkansas
500
LTR034 John Kierre, Jr. and Jeannie Kierre 22A Remount Road North Little Rock Arkansas
LTR035 Maurice Johnson and Ruthie Johnson 603 Cotton Street North Little Rock Arkansas
LTR036 Koppers Industries, Inc. End of Ira Street North Little Rock Arkansas
LTR038 Harvey Watson and Donna Watson 9202 Highway 165 North Little Rock Arkansas
LTR039 James Tice and Margurette Tice 5900 Wadley Road Pulaski County Arkansas
LTR042 Summitt House Apartments Limited Partnership 400 N. University Little Rock Arkansas
LTR043 Steven D. Brant and Ramona C. Brant 14717 Highway 107 Jacksonville Arkansas
LTR045 Jacksonville Water Commission Paradise Park Jacksonville Arkansas
LTR047 Joseph David Harris and Faye B. Harris 4411 John Hardin Drive Jacksonville Arkansas
LTR050 Jacksonville Water Commission Ray Road Jacksonville Arkansas
LTR052 Oak Hill Manor, LLC 8700 Riley Road Little Rock Arkansas
LTR053 Dr. Charles Logan 708 Kirk Road Little Rock Arkansas
LTR055 Linda M. Patterson, Lana K. Patterson, Lisa 701 Nix Road Little Rock Arkansas
P. Strom, and Dennis Strom
TR056 Ernest Melvin White, Theil Eugene White, 10500 Chicot Road Little Rock Arkansas
Estelle White, Virginia Lee Grable, Harold
Lynn White and Joann White
LTR057 Paul Dixon, Jr. and Mildred Alice Dixon 31 Shamburger Lane Sweet Home Arkansas
Staggs
LTR070 Conway Corporation 480 Amity Road Conway Arkansas
LTR071 Winton Mattison and Dorothy Mattison 3491 Highway 286W Conway Arkansas
LTR072 Conway Corporation Robins Street Conway Arkansas
LTR073 Conway Corporation #1 Hickory Hills Road Conway Arkansas
LTR075 Mickey Johnston and Shelley Johnston 10 East Cadron Ridge Road Greenbriar Arkansas
LTR076 Bonnie Steenis 13 Thorn Cemetery Road Greenbriar Arkansas
LTR077 Conway Corporation Veteran Drive Conway Arkansas
LTR090 Donald L. Utley and Jane A. Utley 1225 Old Hot Springs Highway Benton Arkansas
LTR091 Clifton D. Bailey and Pauline T. Bailey 3300 Derby Road Benton Arkansas
LTR092 Lynch's Stor-N-Lock, LLC 1510 Gray Street Benton Arkansas
LTR103 SunBay Beach Club Council of Co-Owners, Inc. 4810 Central Avenue Hot Springs Arkansas
LTR105 First Church of the Nazarene, Inc. 3804 Central Avenue Hot Springs Arkansas
LTR109 James Murrell Sheets, Jeffrey Murrell 1802 Airport Road Hot Springs Arkansas
Sheets, Beverly Sheets, and Elizabeth A.
Sheets
LTR140 E.J. Ball Plaza, Inc. 112 W. Center Fayetteville Arkansas
LTR148 Pleasant Grove Baptist Church 517 Pleasant Grove Road Lowell Arkansas
LTR150 Benton County Two-Way Radio, Inc. 840 S. 45th Street Rogers Arkansas
LTR153 Mary Louetta Clark, Jerry C. Clark, Becky M. 11682 Rice Lane Bentonville Arkansas
Clark, Coy A. Clark, Tabitha Clark, Thomas
P. Clark, Dorothy Clark, Virginia Louise
Kildow, Robert Kildow, and Robert E. Clark
LTR200 Rudy Toepke 4900 South Kerr Road Scott Arkansas
LTR215 South Central District of the Pentecostal 7226 Wheat Road North Little Rock Arkansas
Church of God
LTR216 Geneva Bevans 14421-C Frontier Drive North Little Rock Arkansas
LTR219 Dallas Provin and Patricia Provin 16 Moore Lane Conway Arkansas
LTR252 Lonnie R. Watkins and Patricia L. Watkins 565 Napier Greenland Arkansas
LTR270 Edward Culin and Emma Lou Culin 25550 I-30 Alexander Arkansas
LTR271 Roy E. Bishop 208 Roya Lane Bryant Arkansas
LTR272 Betty Styles and Leamon H. Styles 19522 Interstate 30 Benton Arkansas
LTR280 Cecil Pruett End of Grayhawk Circle Cabot Arkansas
LTR286 Alf D. Price and Betty Price 61 Smith Road Cabot Arkansas
Memphis
Site ID Landlord Name Site Address
MEM001 Jefferson Plaza Associates 147 Jefferson Memphis Tennessee
MEM002 Memphis Light, Gas and Water Shelby County Tennessee
MEM003 Memphis Apartment Partners, L.P. 141 Manassas Memphis Tennessee
MEM004 Seventeen Fifty Madison Avenue Partnership 1750 Madison Avenue Memphis Tennessee
MEM005 Carnevale, Inc. 900 Pennsylvania Memphis Tennessee
MEM006 Waterford Plaza Owners' Association, Inc. 200 Wagner Place Memphis Tennessee
MEM009 Memphis Light, Gas and Water Illinois Central Shelby Tennessee
Railroad and Hernando Road County
MEM011 Tower Ventures I, LLC 2246 Deadrick Avenue Memphis Tennessee
MEM013 Richard Pearce 5056 Pleasant View Memphis Tennessee
MEM014 Tower Ventures I, LLC 3420 Chealsea Avenue Memphis Tennessee
MEM015 Memphis Light, Gas and Water 2541 Frisco Memphis Tennessee
MEM017 New Wesley Highland Towers Associates 400 South Highland Street Memphis Tennessee
MEM018 BMT, LLC 181 West Bodley Memphis Tennessee
MEM020 Memphis Light, Gas and Water Shelby County Tennessee
MEM022 Color Craft Incorporated 2727 Faxon Street Memphis Tennessee
MEM025 Memphis Light, Gas and Water Getwell Street and Mallory Avenue Shelby County Tennessee
MEM027 Tower Ventures I, LLC 1888 E. Raines Road Memphis Tennessee
MEM028 BellSouth Cellular Corp. 2875 Starling Place Memphis Tennessee
MEM029 TPT, LLC 2585 McLean Boulevard Memphis Tennessee
MEM030 Memphis Light, Gas and Water Raleigh Bartlett Road and Shelby County Tennessee
Covington Pike
MEM032 Memphis Light, Gas and Water Whitney and Stage Avenues Memphis Tennessee
MEM033 Memphis Light, Gas and Water Poplar Pike at Memorial Park Shelby County Tennessee
Cemetery
MEM034 Memphis Light, Gas and Water Poplar Pike and Kirby Road Shelby County Tennessee
MEM035 WEO Tower, Inc. 7120 Malton Drive Memphis Tennessee
MEM036 Tower Ventures II, LLC 3785 Edison Memphis Tennessee
MEM037 Lakeview Tower, LLC 3928 Lakeview Road Memphis Tennessee
MEM042 Memphis Light, Gas and Water Airways and Holmes Road Shelby County Tennessee
MEM043 Clyde Olin Bynum 6841 Center Street West Horn Lake Mississippi
MEM045 Charles Faulkner 7283 Horn Lake Road Walls Mississippi
MEM049 Memphis Light, Gas and Water 6204 Mt. Moriah Road Memphis Tennessee
MEM050 Underwood United Methodist Church, Inc. 1501 Mt. Moriah Memphis Tennessee
MEM052 Memphis Light, Gas and Water Holmes and Tchulahoma Roads Shelby County Tennessee
MEM053 Memphis Light, Gas and Water Holmes Shelby County Tennessee
MEM054 Pleasant Hill Water Association, Inc. 7600 Pleasant Hill Road Olive Branch Mississippi
MEM055 Ronnie D. Hopkins 7380 Craft-Goodman Highway Olive Branch Mississippi
MEM056 Pinnacle Towers, Inc. 4357 Get Well Road Memphis Tennessee
MEM057 Yates Hopper Partnership 10290 Old Highway 78 Olive Branch Mississippi
MEM058 HHG Partnership 6195 Shelby Drive Memphis Tennessee
MEM059 Memphis Light, Gas and Water Holmes Road Shelby County Tennessee
MEM060 Tower Ventures II, LLC 699 Herbert Road Memphis Tennessee
MEM066 Memphis Light, Gas and Water German Parkway Shelby County Tennessee
MEM067 Pinnacle Towers, Inc. 9351 Macon Road Memphis Tennessee
MEM068 Tower Ventures I, LLC 2301 Pate Road Memphis Tennessee
MEM070 Memphis Light, Gas and Water US Highway 64 and Cobb Road Shelby County Tennessee
MEM071 Memphis Light, Gas and Water I-40 and Chambers Chapel Road Shelby County Tennessee
MEM072 Memphis Light, Gas and Water Raleigh-LaGrange Road Shelby County Tennessee
MEM074 Tim Fortner and Debbie Fortner 7258 Memphis-Arlington Road Bartlett Tennessee
MEM075 Bartlett Gutter Company, Inc. 10410 Highway 70 Arlington Tennessee
MEM076 City of Bartlett 4055 Altruria Bartlett Tennessee
MEM077 City of Bartlett 6220 Guffin Road Bartlett Tennessee
MEM078 BellSouth Cellular Corp. 5445 Bolen Huse Road Memphis Tennessee
MEM079 Memphis Light, Gas and Water St. Elmo and Raleigh Millington Shelby County Tennessee
MEM080 Tower Ventures I, LLC 2950 Frayser Boulevard Memphis Tennessee
MEM081 Schoolfield United Methodist Church 1621 Dellwood Avenue Memphis Tennessee
MEM083 Tower Ventures I, LLC 3968 North Watkins Memphis Tennessee
MEM084 Tower Ventures I, LLC 2670 Fite Road Memphis Tennessee
MEM085 Memphis Light, Gas and Water Highway 51 north of Big Creek Memphis Tennessee
Church
MEM086 Lee W. Jones and Juanita E. Jones 5762 Pleasant Ridge Road Millington Tennessee
MEM089 Memphis Light, Gas and Water 12010 Brockwell Road Arlington Tennessee
MEM091 BellSouth Cellular Corp. 2000 Centrepoint Drive Braden Tennessee
MEM093 WEO Tower, Inc. Albright and Campground Roads Stanton Tennessee
MEM094 James L. Willis and Mary A. Willis Map 122, Parcel 32, Haywood County Stanton Tennessee
MEM096 Bridgewater Lumber Company 136 South Washington Street Brownsville Tennessee
MEM097 Virginia Tritt, Wayne Tritt and Patsy Tritt Bratt Thomas Road, Lot 9 Brownsville Tennessee
MEM098 WEO Tower, Inc. Brownsville and Denmark Roads Brownsville Tennessee
MEM105 Bernard W. Cogbill 8843 Highway 70 Memphis Tennessee
MEM107 Charles Markham 78 Fairway Boulevard Jackson Tennessee
MEM108 Otto Bailey, Sr. and Lila Bailey 4201 Petro Road West Memphis Arkansas
MEM110 Heartland Equipment, Inc. 8341 Highway 70 West Memphis Arkansas
MEM112 Memphis Light, Gas and Water 1664 Channel Memphis Tennessee
MEM113 Northwest Arkansas 900, L.L.C. North of Casino Center Drive Tunica County Mississippi
MEM114 Alpha One Leasing, Inc. 2228 Fitzgeralds Boulevard Robinsonville Mississippi
MEM117 Pinnacle Towers, Inc. Morrow Crest Drive DeSoto County Tennessee
MEM119 All States Farm Equipment, Inc. 4441 I-55 Marion Arkansas
MEM122 James R. Moore and Nancy M. Moore 1478 Front Street Gilmore Arkansas
MEM123 Norcross Farms, LLC Section 27, Township 10N, Range 7E Tyronza Arkansas
MEM124 Jeram, Inc. 515 Highway 63 West Marked Tree Arkansas
MEM126 Calvary Baptist Church 305 Bell Street Trumann Arkansas
MEM127 Aubrey VanWinkle and Ora Mae VanWinkle 341 CR 639 Bay Arkansas
MEM129 Andrew A. Gray, DDS 2206 Fowler Street Jonesboro Arkansas
MEM130 Robert J. Sartin and L. Rachel Sartin 3703 Culberhouse Road Jonesboro Arkansas
MEM131 Robert J. Sartin and L. Rachel Sartin 2916 Casey Springs Road Jonesboro Arkansas
MEM135 Memphis Light, Gas and Water I-240 and Shelbt Street Shelby County Tennessee
MEM137 Sukabhai Patel and Gangaben Patel 3645 Canada Road Lakeland Tennessee
MEM139 Ronald Bruce Anglin 2811 Sanderwood Avenue Memphis Tennessee
MEM141 Tower Ventures I, LLC 1566 Havana Street Memphis Tennessee
MEM142 Memphis Light, Gas and Water Mitchell Avenue Shelby County Tennessee
MEM144 Dattel Family Limited Partnership 75 Perkins Road Memphis Tennessee
MEM148 City of Bartlett 5727 Woodlawn South Bartlett Tennessee
MEM149 Memphis Light, Gas and Water Mendenhall and Mt. Moriah Roads Shelby County Tennessee
MEM152 Helen K. Blackwell and David A. Blackwell 87 Newt Blackwell Road Humboldt Tennessee
MEM153 Harold D. Nowell and Stephen Johnson Nowell 2027 Bypass South Trenton Tennessee
MEM154 City of Gibson Estes Street Gibson Tennessee
MEM155 17 House, LLC 1005 North Baird Milan Tennessee
MEM158 Tan-Houston Levee, LLC South of Lenow & Morning Sun Roads Cordova Tennessee
MEM160 Memphis Brakes Service Inc. 753 Airways Boulevard Jackson Tennessee
New England
Site ID Landlord Name Site Address
HYN004 Seacoast Limited Partnership Southern Eagle Cartway Brewster Massachusetts
HYN008 Boch Broadcasting, LP 27 Commodity Road Dennis Massachusetts
HYN009 Dennis Water District 875 Route 28 West Dennis Massachusetts
HYN016 Mashpee Industrial Park Trust 154 Industrial Drive Mashpee Massachusetts
HYN019 Radio Falmouth, Inc. Spring Bars Road Falmouth Massachusetts
HYN021 American Tower Systems, L.P. Scraggy Neck Road Cotaumet Massachusetts
HYN022 Paul J. Medeiros 50 Portside Drive Bourne Massachusetts
HYN031 Marine Biological Laboratory 18 MBL Street Wood Hole Massachusetts
HYN107 B&F Realty Trust 256 White's Path South Yarmouth Massachusetts
HYN109 AIRCOMM, LLC 765 Oak Street West Barnstable Massachusetts
HYN111 Ronald Leonard and Karen Leonard 669 Route 6A Sandwich Massachusetts
HYN112 Seacoast Limited Partnership Chase Road and Bay View Sandwich Massachusetts
HYN116 Highview Condominium Association End of Highway Drive, Building One Sandwich Massachusetts
NAS001 Costco Wholesale Corporation 311 Daniel Webster Highway Nashua New Hampshire
NAS013 Francis H. Bettencourt Chestnut Drive Bedford New Hampshire
NAS021 Verres Financial Corporation 800 Harvey Road Manchester New Hampshire
NAS024 Talarico Pontiac-Cadillac, Inc. 1050 Gold Street Manchester New Hampshire
NAS025 Normand Campeau East Industrial Drive Manchester New Hampshire
NAS026 Brawest Cypress, LLC 335 Cypress Street Manchester New Hampshire
NAS027 IPC Office Properties, LLC 900 Elm Street Manchester New Hampshire
NAS028 Order of St. Benedict of New Hampshire 100 St. Anslem Drive Goffstown New Hampshire
NAS029 Department of Veterans Affairs 718 Smyth Road Manchester New Hampshire
NAS030 University of New Hampshire of the Rear Hackett Hill Road Manchester New Hampshire
University System of New Hampshire
NAS031 15 West Alice Realty, LLC 15 West Alice Avenue Hooksett New Hampshire
NAS042 PFP Associates LP 22 Bridge Street Concord New Hampshire
NAS052 Reed P. Clark 94 Stonehenge Road Londonderry New Hampshire
NAS057 Town of Salem 20-26 Howard Street Salem New Hampshire
NAS058 Shoreline Realty Corporation 85 Range Road Windham New Hampshire
NAS062 55 Congress Street Condominium Association 55 Congress Street Portsmouth New Hampshire
NAS064 Sprague Energy Corp. and Coastal Cement 127 River Road Newington New Hampshire
Corporation
NAS073 George M. Kelly 10 North Main Street Rochester New Hampshire
NAS076 James Andres, d/b/a Vertical Realty Abby Sawyer Memorial Highway Dover New Hampshire
Properties Company
NAS084 Michael J. McFadden, an individual doing 333 Borthwick Avenue Portsmouth New Hampshire
business as MCF Communications
NAS101 S.O.N. Properties 71 Sinclair Avenue Manchester New Hampshire
NAS103 Richard Gilbert and Roberta Gilbert 26 Old Manchester Road Candia New Hampshire
NAS105 Michael J. O'Donnell and Elizabeth M. 39 Lane Road Raymond New Hampshire
O'Donnell
NAS107 Edward Moulton 108 Main Street Raymond New Hampshire
NAS109 M.S.E.A. Realty 453-465 Route 125 Brentwood New Hampshire
NAS111 Seacoast Mills, Inc. 136 Pine Street Brentwood New Hampshire
NAS113 Berkshire Life Insurance Company 10 Chestnut Street Exeter New Hampshire
NAS115 Hampton Falls Properties, Ltd. Intersection of Route 88 Hampton Falls New Hampshire
and I-95
NAS122 Freedom Park Associates 10 Beacon Hill Road Derry New Hampshire
NAS124 Freedom Park Associates Jacks Bridge Road Londonderry New Hampshire
NAS143 Pennichuck Water Works, Inc. Al Paul Lane Merrimack New Hampshire
NAS144 Surfsong Properties, Inc. 160 Industrial Drive Merrimack New Hampshire
NAS146 Columbia Realty, LLC 14 Columbia Circle Merrimack New Hampshire
NAS148 S&T Realty, LLC 33 Elm Street Merrimack New Hampshire
NAS149 One Line Realty Development, LLC 768 Daniel Webster Highway Merrimack New Hampshire
NAS153 Hans D. Sassenberg and Christine Sassenberg 13 Dow Road Bow New Hampshire
NAS154 Marcia Gintzler 4 Northeast Ave. Bow New Hampshire
NAS171 Airspace Corporation
NAS172 Sagamore Hampton Golf Club 101 North Road North Hampton New Hampshire
NAS182 Greek Orthodox Church of the Annunciation Dover Strafford County New Hampshire
NAS199 Tamkor Realty Trust 15 Constitution Drive Bedford New Hampshire
WOR007 Edwidge Development Trust 44 Byron Street Worcester Massachusetts
WOR009 Stratton Hill Park Associates 161 Mountain Street West Worcester Massachusetts
WOR010 Town of Holden Avery Heights Drive Holden Massachusetts
WOR011 Lincoln Street Realty Company 52 Pleasant Valley Drive Worcester Massachusetts
WOR012 Kingdom Communications, LLC 597 Southbridge Street Auburn Massachusetts
WOR013 Ladner Bruso, Inc. 1017 Southbridge Street Worcester Massachusetts
WOR014 Kingdom Communications, LLC 194 Granite Street Rear Worcester Massachusetts
WOR016 Osgood Bradley Building Corporation 18 Grafton Street Worcester Massachusetts
WOR017 Worcester Housing Authority 425 Pleasant Street Worcester Massachusetts
WOR018 AAT Communications Corporation 39 First Street Worcester Massachusetts
WOR019 Worcester Housing Authority 11 Lake Avenue Worcester Massachusetts
WOR030 Milford Water Company rear Central Street off Frank Milford Massachusetts
Street
WOR032 R&D Realty Trust, LLP 25 Brigham Street Westborough Massachusetts
WOR081 American Tower Systems, L.P.(2) 100 Highland Street Milford Massachusetts
WOR118 Omnipoint Communications MB Operations, LLC 800 Boston Turnpike Shrewsbury Massachusetts
WOR119 K&D Trust 360 Southwest Cutoff Northborough Massachusetts
WOR120 Joycor, Inc. 91 Turnpike Road Westborough Massachusetts
WOR145 Mekontrol, Inc. 63 Hudson Street Northborough Massachusetts
WOR152 John Christian Kristoff Greenland Road Sterling Massachusetts
WOR187 Fox Bus Lines, Inc. 3 Silver Fox Road Millbury Massachusetts
WOR191 Zane H. Arnold and E. Evelyn Arnold 15 Spring Road Westborough Massachusetts
WOR196 Central New England Sports Center, Inc. 119 Colburn Street Northborough Massachusetts
New Orleans
Site ID Landlord Name Site Address
BRG061 Pinnacle Towers, Inc. 5550 Mancusco Lane East Baton Rouge Louisiana
BRG067 The Baton Rouge Water Company 5424 Highland Baton Rouge Louisiana
BRG070 Woman's Hospital Foundation 9000 Airline Highway Baton Rouge Louisiana
BRG073 The Baton Rouge Water Company 7912 Bluebonnet Baton Rouge Louisiana
BRG078 Greater Baton Rouge Port Commission Tower Road Baton Rouge Louisiana
BRG079 Pinnacle Towers, Inc. 3116 College Avenue Baton Rouge Louisiana
BRG117 BellSouth Telecommunications, Inc. 566 Lobdell Avenue Baton Rouge Louisiana
BRG136 Pinnacle Towers, Inc. I-10 and Highway 74 Ascension Parish Louisiana
BRG138 Pinnacle Towers, Inc. 103 Dort Street East Baton Rouge Louisiana
BRG139 The Baton Rouge Water Company 11755 Cloverland Baton Rouge Louisiana
BRG141 Joseph M. Stablier and Dorothy Miller 14407 Highway 44 Ascension Louisiana
Stablier
BRG141 Starmount Towers, LLC North Bryan at Airline Gonzales Louisiana
BRG142 W. Benjamin Valentine, Jody Myers Valentine, East Side of Highway 61, .04 mi Ascension Parish Louisiana
W.J. Cointmat, Ruby Carlile Cointmat, Wayne south of State Road
Louis Alexander and Evelyn Buynum Alexander
BRG143 PrimeCo Personal Communications, L.P. 11752 Highland Road Baton Rouge Louisiana
BRG151 Pinnacle Towers, Inc. Highway 22 and I-10 Ascension Louisiana
BRG154 Pinnacle Towers, Inc. 3920 LA 1-North West West Baton Rouge Louisiana
BRG158 Diversified Real Estate Inc. 2355 Tecumseh Street Baton Rouge Louisiana
LAF172 Harold Lee Landry and Thelma Judice Landry 2600 West Willow Street Scott Louisiana
LAF173 Michael Ray Roberts and Vanessa Ann Jones 1708 North University Avenue Lafayette Louisiana
NOR004 Lifemark Hospitals of Louisiana, Inc. d/b/a 180 West Esplanade Avenue Kenner Louisiana
Kenner Regional Medical Center
NOR007 The 2633 Napoleon Venture 2633 Napoleon Avenue New Orleans Louisiana
NOR009 Fountainbleau Storage Associates 4040 Tulane Avenue New Orleans Louisiana
NOR013 Executive Plaza, Inc. 10001 Lake Forest Boulevard New Orleans Louisiana
NOR015 Pinnacle Towers, Inc. 1112 Ridgewood Drive Metarie Louisiana
NOR018 Pinnacle Towers, Inc. 2725 Arts Street New Orleans Louisiana
NOR020 Pinnacle Towers, Inc. 1030 Distributors Row Jefferson Louisiana
NOR026 Christopher Homes d/b/a Christopher Inn 2110 Royal Street New Orleans Louisiana
Apartments
NOR027 Roman Catholic Church of Archdiocese of New 1000 Howard Avenue New Orleans Louisiana
Orleans
NOR028 Mid City Electric Company, Inc. d/b/a M.C. 2609 Canal Street New Orleans Louisiana
Realty Companies
NOR030 Alice Schouest and Arthur J. Hebert and 718 Bataraia Boulevard Marrero Louisiana
Thelma Doiron and Sherman Hebert
NOR030 Wynhoven Apartments 4606 10th Street Marrero Louisiana
NOR033 City of Gretna 2525 Belle Chasse Highway Gretna Louisiana
NOR034 Alli Investments, LLC 5148 Taravelle Road Marrero Louisiana
NOR036 Lake Marina Tower Condominium Association, 300 Lake Marina Avenue New Orleans Louisiana
Inc.
NOR040 Sixty-Three Twenty-Four Chef Menteur 6324 Chef Menteur Highway New Orleans Louisiana
Highway, LLC d/b/a Ramada Inn Highrise
NOR041 Canal 66 Partnership d/b/a Doubletree Hotel 300 Canal Street New Orleans Louisiana
NOR042 Regions Bank 2026 St. Charles Avenue New Orleans Louisiana
NOR043 Doctors Hospital of Jefferson 4320 Houma Boulevard Metairie Louisiana
NOR045 Tupelo Street Ventures, Inc. 3228 Patterson Street New Orleans Louisiana
NOR047 123 Walnut Condominium Association, Inc. 123 Walnut Street New Orleans Louisiana
NOR048 Radio Towers Rental, Inc. 5284 West Airline Highway Garyville Louisiana
NOR095 Tenet HealthSystem Hospitals, Inc., d/b/a 3700 St. Charles Avenue New Orleans Louisiana
St. Charles General Hospital
NOR102 Pinnacle Towers, Inc. Gramercy I-10 and LA Highway 641 Gramercy Louisiana
NOR103 Greater New Orleans Expressway Commission Causeway Bridge, Milemark 9, Lake Metairie Louisiana
Pontchartrain
SCHEDULE 3.06
Litigation and Environmental Matters
1. Gerald T. Vento, in his capacity as Chief Executive Officer of TeleCorp
Holding Corp., Inc., received a letter from Mark A. Pelson, dated February 26,
1998, asserting an equity interest in TeleCorp Holding Corp., Inc. and its
affiliates. TeleCorp Holding Corp., Inc. responded with a detailed letter sent
by its counsel, Steven W. Kasten at McDermott, Will & Emery, denying Mr.
Pelson's right to any equity interest in TeleCorp Holding Corp., Inc. or its
affiliates. Mr. Pelson's counsel responded to Mr. Kasten's letter and
reiterated Mr. Pelson's demand. Mr. Kasten is preparing a further detailed
denial. No further action has been taken by either party at this time.
2. The United States Department of Justice issued a Civil Investigative Demand
to TeleCorp Holding Corp., Inc. on April 25, 1997 regarding a possible violation
of Section 1 of the Sherman Act (15 U.S.C. (S)1). TeleCorp Holding Corp., Inc.
produced all materials and answered all interrogatories set forth in the demand
on June 26, 1997. No further action has been taken by either party at this
time.
SCHEDULE 3.12
Ownership of Borrower and its Subsidiaries
1. TeleCorp PCS, Inc. (the "Borrower")'s Subsidiaries
- ---------------------------------------------------------------------------------------------
Number of Shares % of
Name of Subsidiary Owned by the Borrower Capital Stock
- ---------------------------------------------------------------------------------------------
(a) TeleCorp Holding Corp, Inc. One hundred (100) shares 100%
- ---------------------------------------------------------------------------------------------
(b) TeleCorp Communications, Inc. One hundred (100) shares 100%
- ---------------------------------------------------------------------------------------------
(c) TeleCorp PCS, LLC The Borrower is the sole
member of TeleCorp PCS, LLC.
- ---------------------------------------------------------------------------------------------
2. TeleCorp Communications, Inc.'s Subsidiaries
- ---------------------------------------------------------------------------------------------
Number of Shares Owned by % of
Name of Subsidiary TeleCorp Communications, Inc. Capital Stock
- ---------------------------------------------------------------------------------------------
(a) TeleCorp Limited Holdings, Inc. One hundred (100) shares 100%
- ---------------------------------------------------------------------------------------------
(b) TeleCorp Realty Holdings, Inc. One hundred (100) shares 100%
- ---------------------------------------------------------------------------------------------
3. Ownership of TeleCorp Equipment Leasing L.P.
- ---------------------------------------------------------------------------------------------
Number of Shares of TeleCorp % of
Name of Owner of Its Shares Equipment Leasing, L.P. Capital Stock
- ---------------------------------------------------------------------------------------------
(a) TeleCorp Limited Holdings, Inc. Ninety-nine (99) units 99%
- ---------------------------------------------------------------------------------------------
(b) TeleCorp Communications, Inc. One (1) unit 1%
- ---------------------------------------------------------------------------------------------
2
4. Ownership of TeleCorp Realty, LLC
- ---------------------------------------------------------------------------------------------
Number of Shares of TeleCorp % of
Name of Owner of Its Shares Equipment Leasing, L.P. Capital Stock
- ---------------------------------------------------------------------------------------------
(a) TeleCorp Communications Inc. Ninety-nine (99) units 99%
- ---------------------------------------------------------------------------------------------
(b) TeleCorp Realty Holdings, Inc. One (1) unit 1%
- ---------------------------------------------------------------------------------------------
All of the foregoing entities are Loan Parties.
The Capital Stock of the Borrower is owned as set forth on the
following page.
SCHEDULE 3.14
Network Area/Licenses
Part A - Licenses contributed by AW pursuant to the Securities Purchase
- -----------------------------------------------------------------------
Agreement
- ---------
- -----------------------------------------------------------------------------------------------------
Market Number Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
M008 A Boston-Providence/1/ 1,771,875
-
- -----------------------------------------------------------------------------------------------------
M019 A St. Louis/1/ 1,615,987
- -----------------------------------------------------------------------------------------------------
M026 A Louisville-Lexington-Evansville/1/ 721,941
- -----------------------------------------------------------------------------------------------------
M040 A Little Rock 2,051,667
- -----------------------------------------------------------------------------------------------------
M028 B Memphis-Jackson/1/ 1,832,770
- -----------------------------------------------------------------------------------------------------
Part B - Licenses held by THC
- -----------------------------
- -----------------------------------------------------------------------------------------------------
Market Number Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
B034 F Beaumont-Port Arthur, TX 432,129
- -----------------------------------------------------------------------------------------------------
B257 F Little Rock, AR 852,026
- -----------------------------------------------------------------------------------------------------
B290 F Memphis, TN 1,396,390
- -----------------------------------------------------------------------------------------------------
B320 F New Orleans, LA 1,367,169
- -----------------------------------------------------------------------------------------------------
/1/ Contribution includes only a portion of the geographic area in the
-
referenced market as detailed in Schedule 2.1 to the Securities Purchase
Agreement. Pops are based on the portion of the geographic area contributed.
Part C - Licenses purchased from AW pursuant to the License Purchase Agreement
- ------------------------------------------------------------------------------
dated January 23, 1998
- ----------------------
- -----------------------------------------------------------------------------------------------------
Market Number Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
B032 D Baton Rouge, LA 623,657
- -----------------------------------------------------------------------------------------------------
B236 D Lafayette-New Iberia 496,579
- -----------------------------------------------------------------------------------------------------
B320 D New Orleans, LA 1,367,169
- -----------------------------------------------------------------------------------------------------
Part D - San Juan Acquisition License
- -------------------------------------
- -----------------------------------------------------------------------------------------------------
Market Number Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
M025 A Puerto Rico - U.S. Virgin 3,623,846
Islands
- -----------------------------------------------------------------------------------------------------
Part E - LMDS Merger Licenses
- -----------------------------
- -----------------------------------------------------------------------------------------------------
Market Number
Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
BTA032 B Baton Rouge, LA 623,657
- -----------------------------------------------------------------------------------------------------
BTA034 B Beaumont-Port Arthur, TX 432,129
- -----------------------------------------------------------------------------------------------------
BTA257 A Little Rock, AR 852,026
- -----------------------------------------------------------------------------------------------------
BTA320 B New Orleans, LA 1,367,169
- -----------------------------------------------------------------------------------------------------
BTA488 B San Juan, PR 2,170,246
- -----------------------------------------------------------------------------------------------------
BTA489 B Mayaguez-Aquadilla-Ponce, 1,351,600
PR
- -----------------------------------------------------------------------------------------------------
BTA491 B U.S. Virgin Islands 102,000
- -----------------------------------------------------------------------------------------------------
Part F - Mercury Acquisition Licenses
- -------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
Market Number Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
B032 F Baton Rouge, LA 623,657
- -----------------------------------------------------------------------------------------------------
B180 F Hammond, LA 95,583
- -----------------------------------------------------------------------------------------------------
B195 F Houma-Thibodeaux, LA 263,681
- -----------------------------------------------------------------------------------------------------
B236 F Lafayette-New Iberia, LA 496,579
- -----------------------------------------------------------------------------------------------------
Part G - San Diego Merger License
- ---------------------------------
- -----------------------------------------------------------------------------------------------------
Market Number Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
B402 F San Diego, CA 2,498,016
- -----------------------------------------------------------------------------------------------------
Part H Wireless 2000 Licenses
- -----------------------------
- -----------------------------------------------------------------------------------------------------
Market Number Frequency Block License Description Pops
- -----------------------------------------------------------------------------------------------------
B009 C Alexandria, LA 280,133
- -----------------------------------------------------------------------------------------------------
B238 C Lake Charles, LA 259,425
- -----------------------------------------------------------------------------------------------------
B304 C Monroe, LA 324,397
- -----------------------------------------------------------------------------------------------------
SCHEDULE 3.18
Insurance
Both TeleCorp PCS, Inc. and TeleCorp Holding Corp., Inc. are insured
by Travelers Property Casualty and The Phoenix Insurance Company (through B.F.
Saul Insurance Agency) as follows:
Type of Insurance Policy No. Coverage Amount Deductible
- ----------------- ---------- --------------- ----------
General Liability P-630-959K3748-TIL- $2,000,000 general aggregate None
limit; $1,000,000 each occurrence
limit
Automobile Liability P-810-959K375A-TIL- $1,000,000 each accident $500
Excess Liability PSM-CUP-959K3761-TI $5,000,000 general aggregate None
limit; $5,000,000 each occurrence
limit
Workers Compensation and
Employers Liability PN-UB-959K365-6-98 $1,000,000 each accident
Special Form or All Rate
Property P-630-959K3748-TIL Varies by asset insured Varies
SCHEDULE 3.22
Mortgaged Property
Not applicable.
SCHEDULE 6.01
Existing Indebtedness
---------------------
FCC Debt of THC in an aggregate principal amount of approximately
$9,192,938.
SCHEDULE 6.02
Existing Liens
Liens of the FCC securing FCC Debt.
SCHEDULE 6.05(b)
Investments
None.
SCHEDULE 6.10
Existing Restrictions
The restrictions pursuant to Section 11.3 of the Note Purchase Agreement
dated as of May 11, 1998 between Lucent and the Borrower.
EXHIBIT A
[Form of]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 17, 1998 (the
"Credit Agreement"), among Telecorp PCS, Inc., a Delaware corporation (the
"Borrower"), the lenders party thereto (the "Lenders") and The Chase Manhattan
Bank, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent") and collateral agent. Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The assignor whose full legal name is set forth below (the "Assignor")
hereby sells and assigns, without recourse, to the assignee whose full legal
name is set forth below (the "Assignee"), and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Effective Date
set forth below (but not prior to the registration of the information contained
herein in the Register pursuant to Section 9.04(d) of the Credit Agreement), the
interests set forth below (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement and the other Loan Documents, including,
without limitation, the amounts and percentages set forth below of (i) the
Commitments of the Assignor on the Assignment Date, (ii) the Loans owing to the
Assignor which are outstanding on the Assignment Date and (iii) participation in
Letters of Credit. From and after the Assignment Date (i) the Assignee shall be
a party to and be bound by the provisions of the Credit Agreement and, to the
extent of the interests assigned by this Assignment and Acceptance, have the
rights and obligations of a Lender thereunder and under the Loan Documents and
(ii) the Assignor shall, to the extent of the interests assigned by this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, the forms specified
in Section 2.15(e) of the Credit Agreement, duly completed and executed by such
Assignee, (ii) if the Assignee is not already a Lender under the Credit
Agreement, an Administrative Questionnaire duly completed by the Assignee.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment ("Assignment Date")
3
Percentage Assigned of
Applicable Facility/Commitment
(set forth, to at least 8
decimals, as a percentage of the
Facility and the aggregate
Commitments of all Lenders
Facility/Commitment Principal Amount Assigned thereunder)
- -------------------------- --------------------------- -----------
Revolving Credit $ %
Tranche A $ %
Tranche B $ %
The terms set forth above are hereby agreed to:
__________________, as
Assignor,
By_____________________________
Name:
Title:
__________________, as
Assignee,
By____________________________
Name:
Title:
4
The undersigned hereby consent
to the above assignment **/
--
TELECORP PCS, INC., THE CHASE MANHATTAN BANK, as Administrative
Agent,
By___________________________ By______________________
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK,
as Issuing Bank,
By___________________________
Name:
Title:
_____________________
**/ To be completed to the extent consents are required under Section 9.04(b) of
- --
the Credit Agreement.
EXHIBIT B-3
[Letterhead of]
Local Counsel
July , 1998
The Chase Manhattan Bank,
as Administrative Agent, Issuing Bank and Collateral Agent
270 Park Avenue
New York, NY 10017
TD Securities (USA) Inc.,
as Syndication Agent
31 West 52nd Street
New York, NY 10019-6101
Bankers Trust Company,
as Documentation Agent
130 Liberty Street
New York, NY 10006
Chase Securities Inc.,
Toronto Domininion Securities (USA) Inc.
BT Alex. Brown Incorporated,
as Arrangers
c/o Chase Securities Inc.
270 Park Avenue
New York, NY 10017
The Lenders party to the Credit
Agreement referred to below (all of
the Addressees, collectively, the
"Creditors")
Ladies and Gentlemen:
We have acted as special counsel in the State of [ ] (the "State") to
Telecorp PCS Inc., a Delaware corporation (the "Borrower"), and each of the
subsidiaries of the Borrower listed on the attached Schedule A (the
"Subsidiaries"), in connection with the execution and delivery today of, and the
consummation of the transactions contemplated by, the Credit Agreement dated as
of July , 1998 (the "Credit Agreement"), among the Borrower, the financial
institutions party thereto as lenders (the "Lenders") and The Chase Manhattan
Bank, as
administrative agent (in such capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the "Collateral Agent"). This opinion is
delivered pursuant to Section 4.02(b) of the Credit Agreement. Capitalized terms
used but not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
(a) the Credit Agreement;
(b) the Guarantee Agreement;
(c) the Security Agreement;
(d) the Pledge Agreement;
(e) the Indemnity, Subrogation and Contribution Agreement;
(f) the Mortgages;
(g) UCC-1 financing statements, copies of which are attached hereto as
Exhibit A (the "Financing Statements"); and
(h) the Assignment of Rights.
In addition, we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such records, agreements, instruments and
other documents, and have made such other investigations, as we have deemed
necessary for the purpose of this opinion.
References in this opinion to the "UCC" shall mean the Uniform Commercial
Code as in effect on the date hereof in the State.
In rendering this opinion to you, we have assumed that:
(a) there has occurred due execution and delivery of the Documents;
and
(b) except as otherwise set forth in the applicable Security
Documents, the Borrower and each Guarantor, as applicable, owns the
Mortgaged Property (as defined in [the] [each] Mortgage) and the Collateral
(as defined in the Security Agreement and the Pledge Agreement).
3
Subject to the foregoing assumptions, we are of the opinion that:
1. None of the Collateral Agent or the other Creditors is required (a) to
be qualified to do business, file any designation for service of process or file
any reports or pay any taxes in the State, or (b) to comply with any statutory
or regulatory requirement applicable only to financial institutions chartered or
qualified or required to be chartered or qualified to do business in the State,
in each case by reason of the execution and delivery or filing or recording, as
applicable, of any of the Documents, or by reason of the participation in any of
the transactions under or contemplated by the Documents, including, without
limitation, the extension of any credit contemplated thereby, the making and
receipt of payments pursuant thereto and the exercise of any remedy thereunder.
If it were determined that such qualification and filing were required, the
validity of the Documents would not be affected thereby, but (a) if the
Collateral Agent were not qualified it would be precluded from enforcing its
rights as collateral agent on behalf of the Creditors in the courts of the State
until such time as it is admitted to transact business in the State or (b)
assuming the Creditors would institute remedies without the Collateral Agent,
they would be precluded from enforcing their rights in the courts of the State
until such time as they were admitted to transact business in the State.
However, the lack of qualification would not result in any waiver of rights or
remedies pending such qualification.
2. The execution, delivery, filing or recording, as applicable, and
performance by the Borrower and each Guarantor of each of the Documents to which
each of them is a party (i) will not violate any existing law, governmental rule
or regulation of the State and (ii) do not require any license, permit,
authorization, consent or other approval of, any exemption by, or any
registration, recording or filing with any court, administrative agency or other
Governmental Authority of the State.
3. Assuming that the Security Agreement and the Pledge Agreement were
governed by the law of the State for the purpose of rendering the opinion set
forth in this paragraph, each of the Security Agreement and the Pledge Agreement
is in proper form under the applicable laws of the State to (i) be enforceable
against the grantors or pledgors named therein in accordance with its terms and
(ii) create and constitute a
4
valid security interest in, lien on or pledge of the Collateral.
4. The Mortgage[s] [is] [are] in proper form under applicable laws of the
State (a)(i) to be accepted for recording by the Recorder of [and
] County [Counties] and (ii) to be enforceable against the Borrower and each
Guarantor, as applicable, in accordance with [its] [their] terms, and (b)(i) to
create and constitute valid, legal, binding and enforceable mortgage lien[s] on
the real property described therein (the "Real Property"), (ii) to create and
constitute valid, legal, binding and enforceable perfected security interests in
such of the Mortgaged Property (the "UCC Property") as is subject to the
provisions of Article 9 of the UCC, and (iii) to create and constitute valid,
legal, binding and enforceable perfected common law liens on or pledges of such
of the Mortgaged Property as is not UCC Property or Real Property (such
property, together with the UCC Property, the "Personal Property").
5. The Financing Statements relating to the Mortgage[s] (a) are in proper
form under the applicable laws of the State for filing, (b) adequately identify
the collateral described therein to provide sufficient notice to third parties
of the security interest referenced therein and (c) are required to be filed
with the Office of the Secretary of State of the State and with the Recorder of
[and ] County [Counties]. The Financing Statements relating to the
Security Agreement (a) are in proper form under the applicable laws of the State
for filing, (b) adequately identify the collateral described therein to provide
sufficient notice to third parties of the security interest referenced therein
and (c) are required to be filed with the Office of the Secretary of State of
the State and with the Recorder of [and ] County
[Counties]. Upon the filing of the Financing Statements, the Collateral Agent
for the benefit of the Creditors will have a valid and duly perfected security
interest in and lien on the Personal Property and Collateral (including after-
acquired property) described in the Mortgage[s] and the Security Agreement,
respectively.
6. The recording of the Mortgage[s] and the filing of the Financing
Statements with the recorders and in the offices described above are the only
actions, recordings or filings necessary to publish notice and protect the
validity of and to establish of record the rights of the parties under the
Mortgage[s] and Security Agreement, except (i) that
5
continuation statements under the UCC are required to be filed within six months
prior to the expiration of five years from the date of filing of the Financing
Statements, and (ii) that a security interest in or pledge of money or
instruments, other than money or instruments constituting chattel paper, cannot
be perfected by filing Financing Statements or recording a Mortgage, but must be
perfected by taking physical possession thereof.
7. Subject to appropriate continuation or perfection under the UCC as set
forth the preceding paragraph, the priority of the security interest in, lien on
or pledge of the Collateral created by the Security Agreement and the Pledge
Agreement with respect to any extension of credit (each, a "Further Advance")
made or deemed to have been made by the Creditors after the date (the
"Perfection Date") on which the security interest in, lien on or pledge of the
Collateral shall have been perfected will be the same as the priority of the
security interest, lien on or pledge of the Collateral with respect to all
extensions of credit made or deemed to have been made by the Creditors on or
before the Perfection Date, and such priority will not be affected by the rights
in and to the Collateral of any third party whose interest in the Collateral
attached thereto after the Perfection Date but prior to the date of such Further
Advance.
8. The Collateral Agent has the power without naming all the Creditors in
any applicable legal proceeding to exercise remedies under the Security
Documents for the realization of any of the Mortgaged Property or the Collateral
in its own name, as collateral agent.
9. No taxes or other charges, including, without limitation, intangible or
documentary stamp taxes, mortgage or recording taxes, transfer taxes or similar
charges, are payable to the State or to any jurisdiction therein on account of
the execution or delivery or recording or filing of the Mortgage[s] or any of
the other Documents or the creation of the indebtedness evidenced or secured by
any of the Documents, as applicable, except for nominal filing or recording
fees.
[In the event that an intangible tax would be required to be paid in
connection with any of the transactions described in the preceding paragraph,
please describe with specificity in the context of this transaction, and the
collateral to be secured in your State, (a) the nature of the tax, (b) how and
when it is paid, (c) how it is calculated, (d) what forms or
6
other documentation would be required, and (e) any other information that would
be necessary or useful in order for the Borrower or any Guarantor to comply with
the payment of such tax. In the event that an intangible tax would not be
required to be paid, please specify that the intangible tax is inapplicable and
the basis for such conclusion.]
10. The transfer of all or any portion of the Mortgaged Property in
connection with the exercise of any remedy under the Mortgage[s], including,
without limitation, by way of judicial foreclosure, will not restrict, affect or
impair the liability of the Borrower and the other Loan Parties with respect to
the indebtedness secured thereby or the mortgagee's rights or remedies relating
thereto, including the foreclosure or enforcement of any other security interest
or liens securing such indebtedness, and the laws of the State do not require a
lienholder to elect to pursue its remedies either against mortgaged real
property or personal property where such lienholder holds security interests and
liens on both real and personal property of a debtor.
11. A State court or a federal court applying the choice of laws
principles prevailing under the laws of the State to which the question is
presented will give effect to the provisions in the Documents selecting the laws
of the State of New York as the governing law thereof (except as therein
provided) and will apply such laws, rather than the laws of the State, to the
construction and application thereof.
12. Assuming that the Documents were governed by the law of the State for
the purpose of rendering the opinion set forth in this paragraph, (a) none of
the provisions of the Documents will violate any law, statute or regulation of
the State relating to usury and (b) the use of counterpart copies of any of the
Documents does not affect the enforceability of any of the Documents.
We are admitted to practice in the State. We express no opinion as to
matters under or involving the laws of any jurisdiction other than laws of the
United States and the State and its political subdivisions.
This opinion may be relied upon by each of you, by any successors and
assigns of the Administrative Agent or the Collateral Agent, and any
participant, assignee or successor to the interests of the Lenders under the
Loan Documents.
7
Very truly yours,
EXHIBIT C
GUARANTEE AGREEMENT dated as of July , 1998, among each of
the subsidiaries listed on Schedule I hereto (each such
subsidiary individually, a "Guarantor" and, collectively, the
"Guarantors") of Telecorp PCS, Inc., a Delaware corporation (the
"Borrower"), and THE CHASE MANHATTAN BANK, a Delaware
corporation, as collateral agent (the "Collateral Agent") for the
Secured Parties (as defined in the Credit Agreement referred to
below).
Reference is made to the Credit Agreement dated as of July 17, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the lenders from time to time party thereto
(the "Lenders") and The Chase Manhattan Bank, as Administrative Agent, Issuing
Bank and Collateral Agent. Capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower and the Issuing Bank
has agreed to issue Letters of Credit for the account of the Borrower pursuant
to, and upon the terms and subject to the conditions specified in, the Credit
Agreement. Each of the Guarantors is a direct or indirect wholly owned
Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by the Guarantors
of a Guarantee Agreement in the form hereof. As consideration therefor and in
order to induce the Lenders to make Loans and the Issuing Banks to issue Letters
of Credit, the Guarantors are willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
2
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parities to the
Secured Parties under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents and (c) unless otherwise agreed upon in writing by the
applicable Lender party thereto, all obligations of the Borrower, monetary or
otherwise, under each Interest Rate Protection Agreement entered into with a
counterparty that was a Lender or an Affiliate of a Lender at the time such
Interest Rate Protection Agreement was entered into (all the monetary and other
obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Obligations"). Each Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
Anything contained in this Agreement to the contrary notwithstanding, the
obligations of each Guarantor hereunder shall be limited to a maximum aggregate
amount equal to the greatest amount that would not render such Guarantor's
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "Fraudulent Transfer
Laws"), in each case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (a) in respect of intercompany indebtedness to the Borrower or
Affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(b) under any Guarantee of senior
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unsecured indebtedness or Indebtedness subordinated in right of payment to the
Obligations which Guarantee contains a limitation as to maximum amount similar
to that set forth in this paragraph, pursuant to which the liability of such
Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, contribution, reimbursement, indemnity or similar
rights of such Guarantor pursuant to (i) applicable law or (ii) any agreement
providing for an equitable allocation among such Guarantor and other Affiliates
of the Borrower of obligations arising under Guarantees by such parties
(including the Indemnity, Subrogation and Contribution Agreement).
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment.
SECTION 3. Security. Each of the Guarantors authorizes the Collateral
Agent and each of the other Secured Parties, to (a) take and hold, as provided
in the Security Agreement, security for the payment of this Guarantee and the
Obligations and exchange, enforce, waive and release any such security, (b)
apply such security and direct the order or manner of sale thereof as provided
in the Security Agreement and (c) release or substitute any one or more
endorsees, other guarantors of other obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
the Collateral Agent or any other Secured Party in favor of the Borrower or any
other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any
4
claim of waiver, release, surrender, alteration or compromise of any of the
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of each Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Collateral Agent or any other Secured Party to assert any claim or demand or to
enforce any remedy under the Credit Agreement, any other Loan Document or any
other agreement, by any waiver or modification of any provision of any thereof,
by any default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or the failure to perfect any security interest in, or the release
of, any of the security held by or on behalf of the Collateral Agent or any
other Secured Party, or by any other act or omission that may or might in any
manner or to any extent vary the risk of any Guarantor or that would otherwise
operate as a discharge of each Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of the Borrower or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the final and indefeasible payment in full
in cash of the Obligations. The Collateral Agent and the other Secured Parties
may, at their election, foreclose on any security held by one or more of them by
one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with the Borrower or any other
guarantor or exercise any other right or remedy available to them against the
Borrower or any other guarantor, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Obligations have
been fully, finally and indefeasibly paid in cash.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become
5
due, whether at maturity, by acceleration, after notice of prepayment or
otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to
be paid, to the Collateral Agent or such other Secured Party as designated
thereby in cash the amount of such unpaid Obligations. Upon payment by any
Guarantor of any sums to the Collateral Agent or any Secured Party as provided
above, all rights of such Guarantor against the Borrower arising as a result
thereof by way of right of subrogation, contribution, reimbursement, indemnity
or otherwise shall in all respects be subordinate and junior in right of payment
to the prior indefeasible payment in full in cash of all the Obligations. In
addition, any indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated in right of payment to the prior payment in
full of the Obligations during the existence of an Event of Default. If any
amount shall erroneously be paid to any Guarantor on account of (i) such
subrogation, contribution, reimbursement, indemnity or similar right or (ii) any
such indebtedness of the Borrower, such amount shall be held in trust for the
benefit of the Secured Parties and shall forthwith be paid to the Collateral
Agent to be credited against the payment of the Obligations, whether matured or
unmatured, in accordance with the terms of the Loan Documents.
SECTION 8. Information. Each of the Guarantors assumes all responsibility
for being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the Collateral
Agent or the other Secured Parties will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
SECTION 10. Termination. The Guarantees made hereunder (a) shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend under the Credit Agreement and (b)
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Secured
6
Party or any Guarantor upon the bankruptcy or reorganization of the Borrower,
any Guarantor or otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Collateral Agent, and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Guarantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that no Guarantor shall have the right
to assign its rights or obligations hereunder or any interest herein (and any
such attempted assignment shall be void). If all of the capital stock of a
Guarantor is sold, transferred or otherwise disposed of to a person that is not
an Affiliate of the Borrower pursuant to a transaction permitted by Section 6.06
of the Credit Agreement, such Guarantor shall be released from its obligations
under this Agreement without further action. This Agreement shall be construed
as a separate agreement with respect to each Guarantor and may be amended,
modified, supplemented, waived or released with respect to any Guarantor without
the approval of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same
7
shall be permitted by paragraph (b) below, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
No notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Guarantors with respect to which such waiver, amendment or modification relates
and the Collateral Agent, with the prior written consent of the Required Lenders
(except as otherwise provided in the Credit Agreement).
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it in
care of the Borrower at the address set forth in the Credit Agreement.
SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any other fee or amount payable under this Agreement or any other
Loan Document is outstanding and unpaid or the L/C Exposure does not equal zero
and as long as the Commitments and the L/C Commitment have not been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
8
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract, and shall become effective as provided in
Section 11. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the
Collateral Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any Guarantor or its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally
9
and effectively do so, any objection that 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 the other Loan Documents in any New York State or Federal
court. 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. 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 19. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
SECTION 20. Additional Guarantors. Pursuant to Section 5.12 of the Credit
Agreement, each Subsidiary Loan Party of the Borrower that was not in existence
or not a Subsidiary Loan Party on the date of the Credit Agreement is required
to enter into this Agreement as a Guarantor upon becoming a Subsidiary Loan
Party. Upon execution and delivery after the date hereof by the Collateral
Agent and such a Subsidiary of an instrument in the form of Annex 1, such
Subsidiary Loan Party shall become a Guarantor hereunder with the same force and
effect as if originally named as a Guarantor herein. The execution and delivery
of any instrument adding an additional Guarantor as a party to this Agreement
shall not require the consent of any other Guarantor hereunder. The rights and
obligations of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Agreement.
10
SECTION 21. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Secured Party 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 Indebtedness at any time owing by such Secured Party to
or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement and
the other Loan Documents held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this Agreement or any
other Loan Document and although such obligations may be unmatured. After any
exercise of such right of setoff, the Secured Party shall give notice of such
exercise to the Administrative Agent and the Borrower; provided, however, that
-------- -------
failure to give such notice shall not in any way affect the rights of any
Secured Party. The rights of each Secured Party under this Section 21 are in
addition to other rights and remedies (including other rights of setoff) which
such Secured Party may have.
SECTION 22. FCC Consent. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by any of the Collateral
Agent and the Secured Parties with respect to the Licenses or any license of the
Federal Communications Commission ("FCC") unless and until any required approval
under the Federal Communications Act of 1934, and any applicable rules and
regulations thereunder, requiring the consent to or approval of such action by
the FCC or any governmental or other authority, have been satisfied.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
[EACH GUARANTOR],
By___________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as
Collateral Agent,
11
By___________________________
Name:
Title:
Schedule I to the
Guarantee Agreement
Guarantor Address
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[List each Subsidiary Loan Party]