EXHIBIT 10.25
EXECUTION COPY
AMENDMENT AND CONSENT
AMENDMENT AND CONSENT, dated as of March 30, 2001, to the
CREDIT AGREEMENT, dated as of July 2, 1998 (the "Credit Agreement"), among
Teligent, Inc., a Delaware corporation (the "Borrower"), the Lenders from time
to time parties thereto, Goldman Sachs Credit Partners L.P., as Syndication
Agent, Toronto Dominion (Texas), Inc., as Documentation Agent, and The Chase
Manhattan Bank, as Administrative Agent.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, each of the Lenders is a party to the Credit
Agreement pursuant to which the Borrower may borrow from time to time Optional
Term Loans in an aggregate face amount of up to $400,000,000 (the "Original
Optional Term Facility Amount"); and
WHEREAS, the Borrower wishes to increase the Original Optional
Term Facility Amount from $400,000,000 up to $600,000,000 (as so increased, the
"New Optional Term Facility Amount"); and
WHEREAS, the Borrower wishes to utilize a portion, not in
excess of $350,000,000, of the New Optional Term Facility Amount as an optional
vendor financing facility; and
WHEREAS, the Borrower wishes to allow certain vendors to the
Borrower to become parties to the Credit Agreement from time to time after the
Effective Date (as defined below) until December 31, 2001; and
WHEREAS, the parties have agreed to modify certain of the
covenants and other terms in the Credit Agreement as set forth herein;
NOW, THEREFORE, the Borrower, the Administrative Agent, and
the Required Prepayment Lenders hereby agree as follows:
1. Defined Terms. Capitalized terms used herein without
definition shall have the meaning ascribed to such terms in the Credit
Agreement.
2. Amendment to Section 1.1 - Defined Terms. (a) The
following definitions are hereby amended so that they shall read in their
entirety respectively as follows:
"Applicable Margin": (a) for Tranche A Term Loans, Delayed
Draw Term Loans, Conversion Term Loans and Revolving Credit
Loans, 4.50% per annum, in the case of Eurodollar Loans, and
3.50%, in the case of ABR Loans, and (b) for each Type of
Optional Term Loans of each Tranche, the rate per annum for
such Tranche and Type determined in accordance with the
Optional Term Loan Amendment executed for such Tranche
pursuant to Section 2.7.
"Asset Sale": (i) any Disposition of Non-Core Assets
(excluding any such Disposition permitted by clause (a), (b),
(d), (e) or (g) of Section 6.5) and (ii) the entering into of
one or more management agreements with respect to spectrum by
any Restricted Subsidiary to any Unrestricted Subsidiary or
other Person; provided, that such agreements are (A) compliant
with all material terms of this Agreement as determined by the
Administrative Agent in good faith (including, without
limitation, that all Net Cash Proceeds of such management
agreement shall be applied in accordance with Section 2.13)
and (B) reasonably satisfactory in form and substance to FCC
counsel to the Lenders.
"Consolidated Cash Interest Expense": for any fiscal quarter,
total cash interest expense (including that attributable to
Capital Lease Obligations) of the Borrower and its Restricted
Subsidiaries to be paid during such fiscal quarter (including,
without limitation, all commissions, discounts and other fees
and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under hedge
agreements in respect of interest rates to the extent such net
costs are allocable to such fiscal quarter in accordance with
GAAP) as reasonably determined by the Borrower on the basis of
(i) the aggregate amount of Indebtedness of the Borrower and
its Restricted Subsidiaries outstanding on the first day of
such fiscal quarter and (ii) interest rates applicable to such
Indebtedness on such date.
"Consolidated Fixed Charge Coverage Ratio": (a) from the
Amendment Effective Date through the fiscal quarter ending
September 30, 2003, on the last day of any fiscal quarter, the
ratio of (i) the amount of Consolidated EBITDA required
pursuant to Section 6.1(k) for the fiscal quarter immediately
following such last day, to the extent that Consolidated
EBITDA for such fiscal quarter is negative, plus the sum of
(A) the amount of cash and Cash Equivalents held by the
Borrower and its Restricted Subsidiaries, (B) the Available
Revolving Credit Commitments, (C) the Available Tranche A Term
Loan Commitments, (D) the Available Delayed Draw Term Loan
Commitments, and (E) any available unused Optional Non-Vendor
Loan Commitments, in each case, determined as of such last day
to (ii) Consolidated Fixed Charges for the fiscal quarter
immediately following such last day and (b) from the fiscal
quarter ending December 31, 2003 and thereafter, for any
period of four consecutive fiscal quarters, the ratio of (i)
Consolidated EBITDA for such period plus the sum of (A) the
Available Revolving Credit Commitments, (B) the Available
Tranche A Term Loan Commitments, (C) the Available Delayed
Draw Term Loan Commitments, and (D) any available unused
Optional Non-Vendor Term Loan Commitments, in each case,
determined as of the last day of such period of four
consecutive fiscal quarters to (ii) Consolidated Fixed Charges
for such period of four consecutive fiscal quarters.
"Consolidated Fixed Charges": (a) from the Amendment Effective
Date through the fiscal quarter ending September 30, 2003, for
any fiscal quarter, the sum (without duplication) of (i)
Consolidated Cash Interest Expense for such fiscal quarter,
(ii) projected cash income taxes to be paid by the Borrower or
any of its Restricted Subsidiaries on a consolidated basis in
respect of such fiscal quarter, (iii) preferred dividends
required to be paid in cash in such fiscal quarter and (iv)
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scheduled payments to be made during such fiscal quarter on
account of principal of Indebtedness of the Borrower or any of
its Restricted Subsidiaries and (b) from the fiscal quarter
ending December 31, 2003 and thereafter, for any period of
four consecutive fiscal quarters, the sum (without
duplication) of (i) Consolidated Cash Interest Expense for
such period, (ii) provision for cash income taxes made by the
Borrower or any of its Restricted Subsidiaries on a
consolidated basis in respect of such period and (iii)
scheduled payments made during such period on account of
principal of Indebtedness of the Borrower or any of its
Restricted Subsidiaries.
"Consolidated Secured Debt": all Consolidated Total Debt,
excluding the Convertible Notes, secured pursuant to the
Security Documents or by any other security interest in any
assets of the Borrower or any of its Restricted Subsidiaries.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.
"Existing Affiliate Transactions": (a) transactions pursuant
to the Administrative Services Agreement, dated as of March 5,
1996, between the Borrower (formerly DMT, LLC) and Microwave
Services, Inc., a Subsidiary of Associated Group, Inc. as in
effect on the date hereof, and as such agreement may be
amended from time to time in a manner no less favorable to the
Lenders, (b) transactions pursuant to the Technical Services
Agreement, dated as of October 22, 1997, between the Company
and NTT America, Inc. as in effect on the date hereof, and as
such agreement may be amended from time to time in a manner no
less favorable to the Lenders, (c) transactions pursuant to
the Stockholders Agreement, dated as of November 26, 1997,
between the Borrower, NTT America, Inc. and certain other
stockholders of the Borrower as in effect on the date hereof
and as such agreement may be amended from time to time in a
manner no less favorable to the Lenders, (d) transactions
pursuant to the Shareholders Agreement, dated January 13,
2000, by and among Alex J. Mandl, Liberty Media Corporation,
Telcom-DTS Investors, L.L.C. and Microwave Services, Inc. as
in effect on the date hereof and as such agreement may be
amended from time to time in a manner no less favorable to the
Lenders, (e) transactions pursuant to the Joint Venture
Agreement, dated April 11, 2000, by and between Teligent
International Ltd., Telcom Ventures LLC, BA Investments, Ltd.,
and Argentina Telecom Holdings, Ltd. as in effect on the date
hereof and as such agreement may be amended from time to time
in a manner no less favorable to the Lenders, and (f)
transactions pursuant to arrangements in effect on the Closing
Date in an aggregate amount not to exceed $5,000,000.
"Facility": each of (a) the Tranche A Term Loan Commitments
and the Tranche A Term Loans made thereunder (the "Tranche A
Term Loan Facility"), (b) the Delayed Draw Term Loan
Commitments and the Delayed Draw Term Loans made thereunder
(the "Delayed Draw Term Loan Facility"), (c) the Conversion
Term Loans (the "Conversion Term Loan Facility"), (d) the
Optional Non-Vendor Loan Commitments, if any, and the Optional
Non-Vendor Loans made thereunder (the
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"Optional Non-Vendor Loan Facility"), (e) the Optional Vendor
Commitments, if any, and the Optional Vendor Loans made
thereunder (the "Optional Vendor Loan Facility") and (f) the
Revolving Credit Commitments and the Revolving Credit Loans
made thereunder (the "Revolving Credit Facility").
"Majority Facility Lenders": at any time, with respect to any
Facility, the holders of more than 50% of the aggregate unpaid
principal amount of the Loans outstanding under such Facility
plus the aggregate amount of undrawn Commitments then in
effect under such Facility.
"Optional Term Loan": any Optional Non-Vendor Loan and any
Optional Vendor Loan.
"Optional Term Loan Commitment": any Optional Non-Vendor Loan
Commitment and any Optional Vendor Commitment.
"Optional Term Loan Lender": any Optional Non-Vendor Loan
Lender and any Optional Vendor Loan Lender.
"Optional Term Loan Tranche": any Optional Non-Vendor Loan
Tranche and any Optional Vendor Loan Tranche.
"Required Lenders": at any time, the holders of more than 50%
of the aggregate unpaid principal amount of the Loans then
outstanding plus the aggregate amount of undrawn Commitments
(other than Optional Vendor Commitments) then in effect.
(b) Section 1.1 is hereby further amended by adding thereto
the following new definitions in proper alphabetical order:
"Amendment Effective Date": the "Effective Date" as defined
in the Amendment, dated as of March 30, 2001, to this
Agreement.
"Collateral and Securities Account": as defined in Section
6.13.
"Convertible Notes": notes issued by the Borrower to such
Person or Persons as determined by the Borrower, substantially
in the form and having the terms set forth in Exhibit A to the
Amendment, dated as of March 30, 2001, to this Agreement; such
terms shall in any event include subordination of such notes,
in right of payment, to the Obligations, and subordination of
any security interest securing such notes to the security
interest of the Collateral Agent, in each case pursuant to
subordination and intercreditor provisions reasonably
acceptable to the Administrative Agent.
"New Lender Supplement": the agreement made pursuant to
Section 2.7 substantially in the form of Exhibit J.
"Non-Core Assets": at any time of determination (i) all
international licenses held by the Borrower or any of its
Subsidiaries in markets where full-scale commercial service
has not been launched at such time and (ii) all international
joint ventures and international Subsidiaries, which, in the
case of clauses (i) and (ii) above, are not material to the
business, property or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole.
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"Operating Accounts": as defined in Section 6.13.
"Optional Non-Vendor Loan Commitment": as to any Lender, the
obligation of such Lender, if any, to make an Optional
Non-Vendor Loan to the Borrower hereunder in a principal
amount not to exceed the amount set forth in the Optional Term
Loan Amendment related thereto.
"Optional Non-Vendor Loan": as defined in Section 2.7.
"Optional Non-Vendor Loan Lender": each Lender which has an
Optional Non-Vendor Commitment or which is the holder of an
Optional Non-Vendor Loan.
"Optional Non-Vendor Loan Tranche": as defined in Section
2.7.
"Optional Vendor Commitment": as to any Optional Vendor Loan
Lender, the obligation of such Optional Vendor Loan Lender, if
any, to make an Optional Vendor Loan to the Borrower hereunder
in a principal amount not to exceed the amount set forth in
the Optional Term Loan Amendment related thereto.
"Optional Vendor Loan": as defined in Section 2.7.
"Optional Vendor Loan Lender": each Lender which has an
Optional Vendor Commitment or which is the holder of an
Optional Vendor Loan.
"Optional Vendor Loan Tranche": as defined in Section 2.7.
"Vendor": a vendor of plant, property, services or equipment
and/or similar or related Property to the Borrower or its
Subsidiaries, the sale or other provision of which is
financed, in whole or in part, pursuant to Optional Vendor
Loans.
(c) Section 1.1 is hereby further amended by deleting the
definition of "Unused Proceeds Basket".
3. Amendment to Section 2.7. Section 2.7 is hereby
amended so that it shall read in its entirety as follows:
(a) Optional Non-Vendor Loans. Subject to the terms and
conditions hereof, the Borrower may, with the consent of the
Required Lenders, at any time and from time to time prior to
December 31, 2001, establish one or more additional non-vendor
term loan tranches (each, an "Optional Non-Vendor Loan
Tranche") pursuant to which non-vendor term loans ("Optional
Non-Vendor Loans") may be made, provided, (i) each Optional
Non-Vendor Loan Tranche shall be in a principal amount of at
least $50,000,000 and (ii) all Optional Non-Vendor Loan
Tranches shall not exceed in the aggregate the difference of
(A) $600,000,000 less (B) the aggregate amount of Optional
Vendor Loan Tranches then in effect. The Borrower may offer to
any existing Lender, or to one or more additional banks,
financial institutions or other entities reasonably acceptable
to the Administrative Agent, the opportunity to participate in
all or a portion of an Optional Non-Vendor Loan Tranche.
(b) Optional Vendor Loans. Subject to the terms and conditions
hereof, the
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Borrower may at any time and from time to time prior to
December 31, 2001, establish one or more vendor loan tranches
(each, an "Optional Vendor Loan Tranche") pursuant to which
vendor loans ("Optional Vendor Loans") may be made by one or
more Vendors, provided, (i) each Optional Vendor Loan Tranche
shall be in a principal amount of at least $50,000,000 and
(ii) all Optional Vendor Loan Tranches shall not exceed
$350,000,000 in the aggregate or, if less, the difference of
(A) $600,000,000 less (B) the aggregate amount of Optional
Non-Vendor Loan Tranches then in effect. The Borrower may
offer to any existing Optional Vendor Loan Lender, or to one
or more additional Vendors reasonably acceptable to the
Administrative Agent, the opportunity to participate in all or
a portion of an Optional Vendor Loan Tranche. Proceeds of
Optional Vendor Loans may be used only to finance Capital
Expenditures and services related to Capital Expenditures.
(c) Optional Term Loan Procedures. The Borrower shall request
the establishment of an Optional Term Loan Tranche by delivery
to the Administrative Agent of a written request therefor (an
"Optional Term Loan Request") which shall be promptly
distributed by the Administrative Agent to the applicable
Lenders. Each Optional Term Loan Request shall (i) set forth
the aggregate principal amount of the requested Optional Term
Loan Tranche and the Applicable Margin (or, if applicable, the
formula for the calculation thereof) and the commitment fee
rate, if any, applicable to the Optional Term Loans to be made
under such Optional Term Loan Tranche, the amortization and
maturity date of such Optional Term Loans and the borrowing
procedures relating to the borrowing by the Borrower of such
Optional Term Loans and (ii) if applicable, be accompanied by
such information as the Administrative Agent shall reasonably
request for use in syndication of the requested Optional Term
Loans. All Optional Term Loans shall (I) have a Weighted
Average Life (calculated on the date the related Optional Term
Loan Tranche shall become effective) that is at least as long
as the then Weighted Average Life (calculated on such date) of
the Revolving Credit Commitments and the Term Loans, taken as
a whole, (II) have a final scheduled maturity date on or after
December 31, 2006, (III) bear interest at rates no higher than
those applicable to the Tranche A Term Loans, (IV) otherwise
be subject to the same terms and conditions as the other Term
Loans outstanding hereunder, (V) be subject to no other
conditions other than, in the case of Optional Vendor Loans,
the requirement that the proceeds be used to purchase
equipment and/or services from or through the applicable
Vendors and (VI) be in form and substance otherwise reasonably
satisfactory to the Administrative Agent. No Lender shall have
any obligation to participate in any Optional Term Loan
Tranche unless it agrees to do so in its sole discretion. All
Optional Term Loan Tranches shall not exceed $600,000,000 in
the aggregate.
(d) New Lenders. In the case of any Optional Non-Vendor Loan
Tranche, any banks, financial institutions or other entities,
and, in the case of any Optional Vendor Loan Tranche, any
Vendor, which elects to become a party to this Agreement and
obtain an Optional Term Loan Commitment pursuant to this
Section 2.7 shall execute a New Lender Supplement (each, a
"New Lender Supplement") with the Borrower and the
Administrative Agent, substantially in the form of Exhibit J,
whereupon such lender (herein called a "New Lender")
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shall become an Optional Term Loan Lender for all purposes and
to the same extent as if originally a party hereto and shall
be bound by and entitled to the benefits of this Agreement and
the other Loan Documents, and Schedule 1.1 shall be deemed to
be amended to add the name and Optional Non-Vendor Loan
Commitment or Optional Vendor Commitment, as applicable, of
such New Lender.
(e) Conditions to Effectiveness. The effectiveness of any
Optional Term Loan Tranche shall be contingent upon (i)
execution and delivery by the Administrative Agent, the
Borrower and each Lender providing Optional Term Loan
Commitments under such Optional Term Loan Tranche of an
Optional Term Loan Amendment relating to such Optional Term
Loan Tranche, (ii) receipt by the Administrative Agent of such
corporate resolutions and officer's certificates of the
Borrower and legal opinions of counsel to the Borrower as the
Administrative Agent shall reasonably request with respect
thereto, and (iii), if applicable, execution and delivery by
the Borrower, the Administrative Agent and each New Lender
providing Optional Term Loan Commitments under such Optional
Term Loan Tranche of the New Lender Supplement, in each case
in form and substance reasonably satisfactory to the
Administrative Agent. The Borrower and the Administrative
Agent agree to negotiate in good faith any Optional Term Loan
Amendment relating to any Optional Term Loan Tranche.
4. Amendment to Section 2.12. Section 2.12 is hereby
amended so that it shall read in its entirety as follows:
Optional Prepayments. The Borrower may at any time and from
time to time prepay the Term Loans and reduce the Revolving
Credit Commitments, in whole or in part, without premium or
penalty except as provided in the last sentence of this
Section, upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior
thereto in the case of Eurodollar Loans and at least one
Business Day prior thereto in the case of ABR Loans, which
notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or ABR Loans;
provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing
pursuant to Section 2.22; provided, further, that any
prepayment made pursuant to this Section 2.12 shall be applied
pro rata to (i) the Tranche A Term Loans, (ii) the Conversion
Term Loans, (iii) the Optional Term Loans, (iv) the reduction
of the Delayed Draw Term Loans and (v) the reduction of the
Revolving Credit Commitments. Upon receipt of any such notice
the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount
specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date
on the amount prepaid. Any reduction of the Revolving Credit
Commitments pursuant to this Section 2.12 shall be accompanied
by prepayment of the Revolving Credit Loans to the extent, if
any, that the aggregate outstanding principal amount of
Revolving Credit Loans exceeds the amount of the Total
Revolving Credit Commitments as so reduced. Partial
prepayments of Term Loans and Revolving Credit Commitments
shall be in an aggregate principal amount of $1,000,000 or a
whole multiple thereof. Optional prepayments of the
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Term Loans occurring prior to the first anniversary of the
Closing Date shall be accompanied by a prepayment fee equal to
3% of the amount of such prepayment.
5. Amendment to Section 2.13. (a) Section 2.13(b) is
hereby amended so that it shall read in its entirety as follows:
(b) Unless the Required Prepayment Lenders shall otherwise
agree, if on any date the Borrower or any of its Subsidiaries
shall receive Net Cash Proceeds from any Asset Sale or
Recovery Event by the Borrower or its Subsidiaries then,
unless a Reinvestment Notice shall be delivered in respect
thereof within five Business Days after receipt of such Net
Cash Proceeds, such Net Cash Proceeds shall be applied on such
date toward the prepayment of the Term Loans and the reduction
of the Revolving Credit Commitments as set forth in Section
2.13(d); provided, that, on each Reinvestment Prepayment Date,
an amount equal to the Reinvestment Prepayment Amount with
respect to the relevant Reinvestment Event shall be applied
toward the prepayment of the Term Loans and the reduction of
the Revolving Credit Commitments as set forth in Section
2.13(d); and provided, further, that (i) the Borrower may not
at any time deliver a Reinvestment Notice with respect to more
than 35% of the Net Cash Proceeds of any Asset Sale and (ii)
any Net Cash Proceeds of Asset Sales in respect of which
Reinvestment Notices have been delivered shall be reinvested
in tangible Property, including the installation thereof and
services reasonably related to such installation, located in
the United States of America useful in the business of the
Borrower consistent with its past practice and with normal
industry practice in accordance with this Section 2.13. If at
any time the aggregate amount of Net Cash Proceeds of Asset
Sales in respect of which Reinvestment Notices have been
delivered shall exceed 35% of the aggregate amount of Net Cash
Proceeds theretofore received from Asset Sales, then the
Borrower promptly shall apply such excess over 35% in
accordance with Section 2.13(d). In addition, if at any time
the aggregate amount of Net Cash Proceeds in respect of which
Reinvestment Notices have been delivered and which have not
been reinvested in accordance with such Reinvestment Notices
or applied in accordance with Section 2.13(d) shall exceed
$5,000,000, then the Borrower promptly shall deliver such
excess over $5,000,000 to the Collateral Agent to be held by
it in accordance with the Collateral Agency and Intercreditor
Agreement.
(b) Section 2.13(d) is hereby amended so that it shall read in
its entirety as follows:
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 2.13(a), (b) or
(c) or Section 6.6 shall be applied to the prepayment of the
Term Loans, the reduction of the Revolving Credit Commitments
and the reduction of any Delayed Draw Term Loan Commitments
then unused and in effect, pro rata according to the
respective amounts of the outstanding Term Loans, outstanding
Revolving Credit Commitments and unused Delayed Draw Term Loan
Commitments then in effect. Any such reduction of the
Revolving Credit Commitments shall be accompanied by
prepayment of the Revolving Credit Loans to the extent, if
any, that the aggregate outstanding principal amount of
Revolving Credit Loans exceeds the amount of the Total
Revolving Credit Commitments as so reduced. The
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application of any prepayment pursuant to this Section shall
be made first to ABR Loans and second to Eurodollar Loans.
Each prepayment of the Loans under this Section (except in the
case of Revolving Credit Loans that are ABR Loans) shall be
accompanied by accrued interest to the date of such prepayment
on the amount prepaid. No prepayment fee shall be payable in
connection with any prepayment or Commitment reduction
required by paragraphs (a) through (c) above.
(c) Section 2.13(e) is hereby amended so that it shall read in
its entirety as follows:
(e) [Reserved.]
6. Amendment to Lead-In to Section 5. The lead-in to
Section 5 is hereby amended so that it shall read in its entirety as follows:
The Borrower hereby agrees that, so long as any Commitment
remains in effect or any Loan or other amount is owing to any
Lender or any Agent hereunder, the Borrower shall and, except
in the case of delivery of financial statements and
information, reports and notices and except in the case of
agreements pursuant to Section 5.12 and 5.13 hereof, shall
cause each of its Restricted Subsidiaries to:
7. Waiver to Section 5.1(a). The requirement of Section
5.1(a) of the Credit Agreement that the independent certified public
accountants' report which accompanies the audited financial statements shall not
contain a "`going concern' or like qualification or exception" shall be waived
for the fiscal year ended December 31, 2000 insofar as such "going concern"
qualification results from the Borrower having incurred recurring operating
losses and having a substantial need for working capital.
8. Amendment to Section 5.2(d). Section 5.2(d) is hereby
amended so that it shall read in its entirety as follows:
(d) concurrently with the delivery of any financial statements
pursuant to Section 5.1, a narrative discussion and analysis
of the financial condition and results of operations of the
Borrower and its Subsidiaries for such fiscal quarter and for
the period from the beginning of the then current fiscal year
to the end of such fiscal quarter, as compared to the portion
of the Projections covering such periods and to the comparable
periods of the previous year;
9. Amendment to Section 5.10. (a) Section 5.10(a) is
hereby amended so that it shall read in its entirety as follows:
(a) Promptly (i) transfer to LicenseCo any FCC License held by
the Borrower or any Restricted Subsidiary and take any other
actions as shall be required to cause the Collateral Agent to
have a perfected first priority security interest therein (to
the extent permissible under applicable law), (ii) create on
terms reasonably acceptable to the Administrative Agent a
perfected first priority security interest in favor of the
Collateral Agent in all Personal Property Assets now owned or
hereafter acquired by the Borrower or any Restricted
Subsidiary (including any Personal Property Assets owned or
hereafter acquired by AssetCo) and any Personal Property
Assets of any Person that becomes a Restricted Subsidiary or
is
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merged with or into or consolidated with the Borrower or any
Restricted Subsidiary (in each case other than any such
Personal Property Assets constituting Excluded Assets) and
(iii) without limiting the requirements of Section 5.10(c), at
the option of the Borrower, either (x) transfer to LeasingCo
any Real Property Assets hereafter acquired by the Borrower or
any Restricted Subsidiary and any Real Property Assets of any
Person that becomes a Restricted Subsidiary or is merged with
or into or consolidated with the Borrower or any Restricted
Subsidiary (in each case other than any such Real Property
Assets constituting Excluded Assets) or (y) create on terms
reasonably acceptable to the Administrative Agent a perfected
first priority security interest in favor of the Collateral
Agent in such Real Property Assets, other than Excluded Assets
(which security interest may be subject to any Liens permitted
by Section 6.3 (other than those referred to in the definition
of the term "Excluded Assets") .
(b) Section 5.10(c) is hereby amended so that it shall read in
its entirety as follows:
(c) Promptly create a mortgage on terms reasonably acceptable
to the Administrative Agent in favor of the Collateral Agent
on any fee simple title in real property owned by the Borrower
or any Restricted Subsidiary having at the time of acquisition
thereof a purchase price or fair market value greater than
$1,000,000 (other than Excluded Assets), including any such
properties that are acquired by the Borrower or any Restricted
Subsidiary after the date hereof and any such properties of
any Person that becomes a Restricted Subsidiary or is merged
with or into or consolidated with the Borrower or any
Restricted Subsidiary.
(b) Section 5.10(d) is hereby amended so that it shall read in
its entirety as follows:
(d) Promptly cause (i) all Capital Stock of any Subsidiary
(including, without limitation, any Subsidiary which shall be
acquired by the Borrower or any Restricted Subsidiary) held by
the Borrower or its Restricted Subsidiaries to be pledged to
the Collateral Agent as Collateral; provided, that only 65% of
the Capital Stock of any Excluded Foreign Subsidiary which is
a Subsidiary of the Borrower or any Domestic Subsidiary, and
none of the Capital Stock of any Subsidiary of an Excluded
Foreign Subsidiary, shall be required to be pledged and (ii)
each Restricted Subsidiary to become a party to the Guarantee
and Collateral Agreement.
10. Amendment to Section 5. Section 5 is hereby amended to
add, after Section 5.11, the following new Sections 5.12 and 5.13 as follows:
5.12 Convertible Notes. Deliver to the Administrative Agent,
on or before April 30, 2001, definitive documentation, duly
authorized, executed and delivered by the Borrower and such
Person or Persons as determined by the Borrower with respect
to the Convertible Notes, on terms and conditions reasonably
satisfactory to the Administrative Agent and in an aggregate
principal amount equal to or in excess of $100,000,000.
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5.13 Vendor Financing. Deliver to the Administrative Agent, on
or before April 30, 2001, definitive documentation, duly
authorized, executed and delivered by the Borrower and one or
more Vendors, including a New Lender Supplement duly executed
and delivered by the Borrower and each relevant Vendor, with
respect to the establishment of one or more Optional Vendor
Loan Tranches pursuant to Section 2.7 of, and in all material
respects in accordance with, this Agreement in an aggregate
principal amount equal to or in excess of $250,000,000.
11. Amendment to Section 6.1. (a) Section 6.1(a) is
hereby amended so that it shall read in its entirety as follows:
(a) Consolidated Total Debt to Consolidated Adjusted
Capitalization. Permit the ratio of Consolidated Total Debt to
Consolidated Adjusted Capitalization during any test period
set forth below to be greater than the ratio set forth below
opposite such test period:
Test Period Ratio
Closing Date - 12/31/98 60%
1/1/99 - thereafter 65%
(b) Section 6.1(b) is hereby amended so that it shall read in
its entirety as follows:
(b) Consolidated Secured Debt to Consolidated Adjusted
Capitalization. Permit the ratio of Consolidated Secured Debt
to Consolidated Adjusted Capitalization during any test period
set forth below to be greater than the ratio set forth below
opposite such test period:
Test Period Ratio
Closing Date - 12/31/98 30%
1/1/99 - thereafter 40%
(c) Section 6.1(c) is hereby amended so that it shall read in
its entirety as follows:
(c) Minimum Consolidated Total Revenue. Permit Consolidated
Total Revenue for any fiscal quarter set forth below to be less than the amount
set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
3/31/01 $55,000,000
6/30/01 $68,000,000
(d) Section 6.1(f) is hereby amended to delete the last
sentence thereof, which read, "In addition to the amounts set forth above,
Capital Expenditures may be funded from the Unused Proceeds Basket".
(e) Section 6.1(j) is hereby amended so that it shall read in
its entirety as follows:
11
(j) Consolidated Fixed Charge Coverage Ratio. (a)(i) From the
fiscal quarter ending June 30, 2001 through the fiscal quarter
ending September 30, 2003, permit the Consolidated Fixed
Charge Coverage Ratio on the last day of any fiscal quarter
ending on any date set forth below to be less than the ratio
set forth opposite such date below:
Fiscal Quarter Ending Ratio
6/30/01 2.00
9/30/01 1.75
12/31/01 2.50
3/31/02 through 9/30/03 1.25; and
(ii) From the fiscal quarter ending December 31, 2003 and
thereafter, permit the Consolidated Fixed Charge Coverage
Ratio for any period of four consecutive fiscal quarters
ending during any test period set forth below to be less than
the ratio set forth opposite such test period below:
12/31/03 through 9/30/04 1.10
12/31/04 and thereafter 1.25; or
(b) From the fiscal quarter ending June 30, 2001 through the
fiscal quarter ending September 30, 2003, fail to deliver to
the Administrative Agent and the Lenders, on or before the
date which is ten Business Days after the end of any fiscal
quarter, a certificate of a Responsible Officer showing
calculations demonstrating compliance with the foregoing
clause (i) on the last day of such fiscal quarter.
(f) Section 6.1 is hereby amended to add the following new
Section 6.1(k) below:
(k) Minimum Consolidated EBITDA. Permit Consolidated EBITDA
for the period ending on the last day of the fiscal quarter
set forth below to be less than the amount set forth opposite
such fiscal quarter below:
Fiscal Quarter Ending Amount
3/31/01 (96,900,000)
6/30/01 (76,300,000)
9/30/01 (49,200,000)
12/31/01 (30,400,000)
3/31/02 (19,400,000)
6/30/02 (10,900,000)
9/30/02 1,800,000
12/31/02 23,300,000
3/31/03 42,200,000
6/30/03 59,500,000
9/30/03 84,300,000
12/31/03 99,900,000
12
3/31/04 114,900,000
6/30/04 133,600,000
9/30/04 156,300,000
12/31/04 173,900,000
(g) Section 6.1 is hereby amended to add the following new
Section 6.1(l) below:
(l) Minimum Liquidity. Permit the aggregate amount of cash and
Cash Equivalents held in (i) the Operating Accounts of the
Borrower and (ii) the Collateral and Securities Account of the
Borrower held at The Chase Manhattan Bank, in each case
pursuant to Section 6.13 of this Agreement, to be less than
$150,000,000 on March 31, 2001.
12. Waiver of Section 6.1(j). The parties hereto hereby
agree that the requirement of Section 6.1(j) that the Consolidated Fixed Charge
Coverage Ratio on the last day of the fiscal quarter ending December 31, 2000 be
equal to or more than 1.10 shall be waived.
13. Amendment to Section 6.2. (a) Section 6.2(c) is
hereby amended so that it shall read in its entirety as follows:
(c) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 6.3(g);
provided, that (i) not more than $25,000,000 of such
Indebtedness may be incurred to finance the acquisition of
Network Assets (other than fiber or fiber capacity) and (ii)
that not more than $100,000,000 of such Indebtedness may be
incurred to finance the acquisition of fiber or fiber
capacity;
(b) Section 6.2 is hereby further amended by (i) deleting the
word "and" at the end of clause (j), (ii) deleting the period at the end of
clause (k) and inserting a semi-colon and the word "and" in lieu thereof and
(iii) adding the following new clause (l):
(l) Indebtedness incurred under the Convertible Notes in an
aggregate principal amount not to exceed $150,000,000.
14. Consent to Section 6.2(g). The parties hereto hereby
agree that the requirement of Section 6.2(g)(x) that unsecured Indebtedness or
preferred stock of the Borrower issued or incurred after July 2, 1998 generating
the first $500,000,000 in Net Cash Proceeds shall provide for interest or
dividends thereon to be paid in kind (or to be paid out of amounts deposited in
escrow or pledged as collateral from the proceeds thereof) for at least three
years after the date of incurrence or issuance thereof shall be deemed
satisfied.
15. Amendment to Section 6.3. (a) Section 6.3(g) is hereby
amended to read in its entirety as follows:
(g) Liens securing Indebtedness of the Borrower or any
Restricted Subsidiary incurred pursuant to Section 6.2(c) to
finance the acquisition or capital lease of fixed or capital
assets, provided that (i) such Liens shall be created within
90 days from the acquisition of such fixed or capital assets
and (ii) such Liens do not at any time encumber any Property
other than the Property financed by such Indebtedness;
13
(b) Section 6.3 is hereby further amended by (i) deleting the
word "and" at the end of clause (k), (ii) deleting the period at the end of
clause (l) and inserting a semi-colon in lieu thereof and (iii) adding the
following new clauses (m), (n) and (o):
(m) Uniform Commercial Code filings with respect to operating
leases or consignment arrangements entered into in the
ordinary course of business of the Borrower or any of its
Restricted Subsidiaries, to the extent filed to reflect the
interests of the lessor or relevant party in respect of such
leases or consignment arrangements, as the case may be;
(n) Liens in favor of banking institutions arising by
operation of law encumbering deposits held by such banking
institution incurred by the Borrower or its Restricted
Subsidiaries in the ordinary course of business; and
(o) second priority Liens on the Collateral securing the
obligations under the Convertible Notes permitted pursuant to
Section 6.2(l), provided, that (i) such Liens shall be subject
to customary second lien and Indebtedness subordination
provisions satisfactory to the Administrative Agent providing,
among other things, that such Liens shall be subject to the
priority of Liens securing the Obligations (including with
respect to the exercise of remedies and decisions relating to
the Collateral) and that the obligations under the Convertible
Notes shall be subordinated to the Obligations and (ii) the
documentation with respect to such Liens shall include an
intercreditor agreement and such other documentation
reasonably requested by the Administrative Agent, satisfactory
in form and substance to the Administrative Agent.
16. Amendment to Section 6.5. (a) Sections 6.5(c) is
hereby amended so as to read in its entirety as follows:
(c) so long as after giving effect thereto the Borrower is in
Pro Forma Compliance, any Asset Sale for fair market value;
provided, that (i) the aggregate consideration in connection
with all Asset Sales shall not exceed $200,000,000 and (ii)
the Net Cash Proceeds of all Asset Sales shall be applied in
accordance with Section 2.13;
(b) The proviso at the end of Sections 6.5 is hereby amended
so as to read in its entirety as follows:
provided that in each case described in clauses (c) and (e)
above, at least 75% of the consideration received by the
Borrower or its Restricted Subsidiaries for such Disposition
shall consist of cash and Cash Equivalents.
17. Amendment to Section 6.7. (a) Sections 6.7(d), (e)
and (f) are hereby amended so as to read in their entirety as follows:
(d) Investments by the Borrower and its Restricted
Subsidiaries (other than the Special Purpose Subsidiaries) in
Unrestricted Subsidiaries and joint ventures, provided, that
(x) the consideration for such Investments made after the
Effective Date in excess of $25,000,000 in the aggregate shall
be the common stock of the Borrower, (y) the consideration for
such Investments made after the Effective
14
Date may not include, directly or indirectly, the Disposition
of any Network Assets of the Borrower or any Restricted
Subsidiary (including, without limitation, licenses, whether
domestic or foreign, but excluding, the entering into of one
or more management agreements with respect to spectrum by any
Restricted Subsidiary to any Unrestricted Subsidiary or other
Person; provided, that such agreements are (A) compliant with
all material terms of this Agreement as determined by the
Administrative Agent in good faith (including, without
limitation, that all Net Cash Proceeds of such management
agreement shall be applied in accordance with Section 2.13)
and (B) reasonably satisfactory in form and substance to FCC
counsel to the Lenders), and (z) after giving effect to such
Investment the Borrower shall be in Pro Forma Compliance;
(e) Investments in wireless telecommunications licenses issued
by a governmental authority, including FCC Licenses, and in
Persons engaged in the telecommunications business and
substantially all of whose assets consist of wireless
telecommunications licenses which become Restricted
Subsidiaries as a result of such Investment, provided, that
(w) the consideration for such Investments shall be the common
stock of the Borrower, (x) with respect to Investments in
Persons pursuant to this clause (e), such Investments shall be
made only in Persons which have provided to the Administrative
Agent financial statements certified by the chief financial
officer of such Person reflecting a positive EBITDA for such
Person for the immediately preceding consecutive twelve-month
period, (y) after giving effect to such Investment the
Borrower shall be in Pro Forma Compliance and (z) the
consideration for Investments made in telecommunications
licenses issued by any Governmental Authority outside the
United States shall be the common stock of the Borrower;
(f) Investments in additional Telecommunications Assets,
excluding wireless telecommunications licenses, and in Persons
engaged in the telecommunications business which become
Restricted Subsidiaries as a result of such Investment,
provided, that (x) the consideration for such Investments
shall be the common stock of the Borrower, (y) with respect to
Investments in Persons pursuant to this clause (f), such
Investments shall be made only in Persons which have provided
to the Administrative Agent financial statements certified by
the chief financial officer of such Person reflecting a
positive EBITDA for such Person for the immediately preceding
consecutive twelve-month period, and (z) after giving effect
to each such Investment the Borrower shall be in Pro Forma
Compliance;
18. Amendment to Section 6.12(b). Sections 6.12(b) is
hereby amended so as to read in its entirety as follows:
(b) Permit LicenseCo to incur any material liabilities (other
than pursuant to the Loan Documents) or to engage in any
business or activities other than (i) the holding of Licenses,
(ii) the entering into of one or more management agreements
with respect to spectrum with any Unrestricted Subsidiary or
other Person (provided, that such agreements are (A) compliant
with all material terms of this Agreement as determined by the
Administrative Agent in good faith (including, without
limitation, that all Net Cash Proceeds of such management
agreement shall be applied in accordance with Section 2.13)
and (B) reasonably satisfactory
15
in form and substance to FCC counsel to the Lenders) and (iii)
in each case, to engage in activities directly incident or
directly related thereto.
19. Addition of Section 6.13. The following shall be added
as Section 6.13:
6.13. Maintenance of Cash and Cash Equivalents. From and
after the Amendment Effective Date, hold, directly indirectly,
any cash or Cash Equivalents, except as follows:
(a) the Borrower and its Restricted Subsidiaries may
hold cash in operating accounts maintained with any bank or
other financial institution reasonably satisfactory to the
Administrative Agent (the "Operating Accounts") so long as, at
the close of business on any day (after giving effect to any
transfers at such close of business to the Collateral and
Securities Account), the amount on deposit in all Operating
Accounts shall not exceed, in the aggregate, $25,000,000; and
(b) the Borrower and its Restricted Subsidiaries
shall maintain all cash and Cash Equivalents, other than cash
on deposit in an Operating Account to the extent permitted by
the foregoing paragraph (a), in an account or accounts
(collectively, the "Collateral and Securities Account") at The
Chase Manhattan Bank, which shall be established and
maintained upon the following terms:
(i) the Collateral and Securities Account
shall be established pursuant to agreements in form
and substance reasonably satisfactory to the
Administrative Agent, which shall in any event
provide that (1) the Collateral and Securities
Account, and all cash and Cash Equivalents from time
to time credited thereto, and all earnings thereon,
shall constitute Collateral in which the Collateral
Agent has a security interest to secure the Secured
Obligations (as defined in the Collateral Agency and
Intercreditor Agreement) and (2) the Collateral Agent
shall have sole dominion and control of the
Collateral and Securities Account, and neither the
Borrower nor any Restricted Subsidiary shall have any
right of withdrawal therefrom, except as provided in
clause (ii) below;
(ii) upon receipt by the Collateral Agent of
a request from the Borrower (1) stating that the
aggregate amount on deposit in all Operating Accounts
as of the close of business on the immediately
preceding Business Day was not more than $25,000,000
and (2) requesting that the Collateral Agent transfer
from the Collateral and Securities Account to an
Operating Account funds in an amount which, after
giving effect to such transfer, will not cause the
provisions of this Section 6.13 to be violated, the
Collateral Agent will transfer such requested amount
in accordance with such request.
20. Amendment to Section 7(c). Section 7(c) is hereby
amended to read in its entirety as follows:
(c) The Borrower shall default in the observance or
performance of any agreement contained in Section 5.12 or
Section 5.13 or any Loan Party shall
16
default in the observance or performance of any agreement
contained in Section 6;
21. Amendment to Section 9.5. Section 9.5 of the Credit
Agreement is hereby amended by deleting clause (a) in its entirety and
substituting the following in lieu thereof:
(a) to pay or reimburse the Agents, and the formal and
informal members of any steering committee of Lenders, for all
their reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of,
and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the
consummation and administration of the transactions
contemplated hereby and thereby, including, without
limitation, the reasonable fees and disbursements of one
counsel for all of the Agents and any other consultants or
professional advisors (including, without limitation,
financial advisors) retained by the Administrative Agent,
22. Amendment to Annex A. Annex A to the Credit Agreement
is hereby deleted in its entirety.
23. Amendment to Exhibits. Exhibit J attached hereto as
Annex A shall hereby be added as Exhibit J to the Credit Agreement.
24. Amendment to Section 3.2 of the Guarantee and
Collateral Agreement. Section 3.2 is hereby amended to read in its entirety as
follows:
3.2 Limitation on Obligation to Perfect. Notwithstanding the
foregoing, it is understood and agreed that no Grantor will be
required to take any action to perfect any security interest
created hereby other than (A) the filing of financing
statements under the Uniform Commercial Code in the states
(and, where applicable, counties, towns and parishes)
necessary or, in the reasonable judgment of the Administrative
Agent, desirable to create a perfected first priority security
interest in the Personal Property Assets of such Grantor, (B)
the filings required in the United States Patent and Trademark
Office to perfect the security interest created hereby in any
material United States Patents or U.S. Trademarks owned or
held by such Grantor, (C) the filings and registrations
required in the United States Copyright Office to perfect the
security interest created hereby in any material United States
Copyrights owned or held by such Grantor, (D) delivery to the
Collateral Agent of any Possessory Collateral owned by such
Grantor and (E) any actions required to perfect the security
interest created hereby in any Non-Excluded Personal Property
which, in the case of any Real Property Assets, has not been
transferred to a LeasingCo; provided, that if after the date
hereof there is any change in law which requires actions in
addition to those described above to cause the security
interests created hereby to be perfected to the same extent as
the perfection effected by the foregoing actions under laws in
effect on the date hereof, the Grantors will take such
additional actions.
25. Amendment to Section 5.3(a) of the Guarantee and
Collateral Agreement. Section 5.3(a) is hereby amended by deleting the
reference to "Section 4.5" and substituting in lieu thereof a reference to
"Section 4.3".
17
26. Amendment to Section 5.6(b)(ii) of the Guarantee and
Collateral Agreement. Section 5.6(b)(ii) is hereby amended by inserting the
following phrase immediately after the word "instruments" and immediately before
the symbol ")":
, and any such Pledged Securities so sold, assigned,
transferred, exchanged or otherwise disposed of as permitted
by the Secured Instruments shall cease to be Pledged
Securities hereunder
27. Conditions Precedent. Subject to the satisfaction of
the following conditions, this Amendment will become effective as of March 30,
2001 (the "Effective Date"):
(a) Amendment. The Administrative Agent shall have received
counterparts of this Amendment, duly executed by the Borrower, the
Administrative Agent and the Required Lenders.
(b) No Default or Event of Default. On and as of the
Effective Date after giving effect to this Amendment, no Default or
Event of Default shall have occurred and be continuing.
(c) Representations and Warranties. The representations and
warranties made by the Borrower in the Credit Agreement and the other
Loan Documents after giving effect to this Amendment and the
transactions contemplated hereby shall be true and correct in all
material respects on and as of the Effective Date as if made on such
date, except that where such representations and warranties relate to
an earlier date, such representations and warranties shall have been
true and correct in all material respects as of such earlier date,
provided that all references to the Credit Agreement in such
representations and warranties shall be and are deemed to mean this
Amendment as well as the Credit Agreement as amended hereby.
(d) Certificate. The Administrative Agent shall have received
a Certificate of a Responsible Officer of the Borrower certifying the
matters referred to in paragraphs (b) and (c).
(e) Secretary's Certificate. The Administrative Agent shall
have received a certificate from the Secretary or Assistant Secretary
of the Borrower dated as of the Effective Date, (i) certifying attached
copies of resolutions of the Board of Directors of the Borrower,
authorizing the execution, delivery and performance of this Amendment,
including the increase in the amount of the Optional Term Loan
Commitments, contemplated hereby, (ii) certifying that the By-Laws and
the Certificate of Incorporation of the Borrower have not been amended,
restated, supplemented or otherwise modified since July 2, 1998, except
for the amendments, restatements, supplements or modifications attached
as an exhibit to such certificate, and (iii) evidencing the incumbency
and signatures of the officers signing this Amendment.
(f) Opinions. The Administrative Agent shall have received in
connection with this Amendment (i) an opinion of in-house counsel to
the Borrower, covering such matters that the Administrative Agent shall
reasonably request and customary for transactions of this type, and
(ii) an enforceability opinion of Cravath, Swaine & Moore, special New
York counsel to the Borrower, which opinion shall also cover the
creation and perfection of the security interest of the Collateral
Agent in the Collateral and
18
Securities Account and the enforceability of the agreements entered
into in connection therewith.
(g) Approvals. The Administrative Agent shall have received
copies of all necessary corporate and governmental approvals (if any)
of the Borrower for the increase of the aggregate amount of the
Optional Term Loan Tranches, the addition of the Optional Vendor Loan
Tranches therein, and any other transactions contemplated hereby.
(h) Fees and Expenses. The Administrative Agent shall have
received all fees required to be paid, including, without limitation,
an amendment fee for the account of each Lender which executes and
delivers this Amendment on or before the date hereof of 25 basis points
on such Lender's Commitment, and all expenses for which invoices have
been presented, including, without limitation, all expenses required to
be paid pursuant to Section 9.5 (after giving effect to this
Amendment), on or before the date hereof.
(i) Subsidiary and Collateral Schedule. The Administrative
Agent shall have received in connection with this Amendment a schedule
or schedules listing (i) each direct and indirect Subsidiary of the
Borrower, (ii) the Borrower's and each such Subsidiary's jurisdiction
of incorporation, (iii) the location of the chief executive office of
the Borrower and each Domestic Subsidiary, (iv) the locations of any
tangible personal property of the Borrower and each Domestic
Subsidiary, (v) the identity of the owner of the Capital Stock of each
direct and indirect Subsidiary of the Borrower (and specifying whether
such Capital Stock is certificated or uncertificated and, with respect
to each Domestic Subsidiary and each Excluded Foreign Subsidiary which
is a Subsidiary of the Borrower or any Domestic Subsidiary, if
certificated, the share certificate number and the number of shares
issued and outstanding) and (vi) each filing office in which UCC
financing statements should be filed to perfect the security interest
of the Collateral Agent in all personal property of the Borrower and
each Restricted Subsidiary. Such schedules shall be accompanied by a
certificate of the Borrower certifying such schedules to be true and
correct.
28. Continuing Effect; No Other Amendments. Except as
expressly amended or waived hereby, all of the terms and provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect. The amendments and consent contained herein shall not constitute an
amendment or consent of any other provision of the Credit Agreement or the other
Loan Documents or for any purpose except as expressly set forth herein.
29. Binding Effect. This Amendment shall apply equally to
each of the Lenders parties to the Credit Agreement, and shall be binding upon
the Borrower, the Lenders, the Administrative Agent, the Arrangers, the
Documentation Agent, the Syndication Agent and all future holders of the Notes.
30. Governing Law. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
31. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall
19
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page of this Amendment by facsimile transmission shall be as
effective as delivery of a manually executed counterpart of this Amendment.
32. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose.
[Remainder of this page left blank intentionally; Signature page to follow.]
20
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the date
first above written.
TELIGENT, INC.
By:/s/ Alex J. Mandl
-----------------------
Name: Alex J. Mandl
Title: Chief Executive Officer
THE CHASE MANHATTAN BANK,
As Administrative Agent
By:/s/ William E. Rottino
-----------------------
Name: William E. Rottino
Title: Vice President
[INSERT NAME OF LENDER],
As a Lender
By:_____________________________
Name:
Title:
21
ANNEX A
EXHIBIT J
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, to the Credit Agreement
dated as of July 2, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Teligent, Inc., a
Delaware corporation (the "Borrower"), the Lenders from time to time parties
thereto, Goldman Sachs Credit Partners L.P., as Syndication Agent, Toronto
Dominion (Texas), Inc., as Documentation Agent, and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used herein without definition shall
have the meaning ascribed to such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 2.7 thereof
that, in the case of any Optional Non-Vendor Loan Tranche, any banks, financial
institutions or other entities, and, in the case of any Optional Vendor Loan
Tranche, any Vendor, to the Borrower may become a party to the Credit Agreement
as an Optional Term Loan Lender with the consent of the Borrower and the
Administrative Agent (which consent, in the case of the Administrative Agent,
shall not be unreasonably withheld) by executing and delivering to the Borrower
and the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to become a party to the
Credit Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Credit Agreement, and agrees that it shall, on the date this Supplement
is accepted by the Borrower and the Administrative Agent, become an
Optional [Non-]Vendor Loan Lender for all purposes of the Credit
Agreement to the same extent as if originally a party thereto, with an
Optional [Non-]Vendor Loan Commitment of [$____________].
2. The undersigned (a) represents and warrants that it is
legally authorized to enter into this Supplement; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of
the financial statements referred to in Section 5.1 thereof and such
other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Supplement; (c)
agrees that it has made and will, independently and without reliance
upon any Agents or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the
Credit Agreement or any instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers
and discretion under the Credit Agreement or any instrument or document
furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as
are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with
its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including,
without limitation, if it is organized under the laws of a jurisdiction
outside the United States, its obligation pursuant to Section 2.21 of
the Credit Agreement.
3. The undersigned's address for notices for the purposes of
the Credit Agreement is as follows:
[Remainder of the page left blank intentionally; Signature page to follow.]
2
IN WITNESS WHEREOF, the undersigned has caused this Supplement
to be executed and delivered by a duly authorized officer on the date first
above written.
[INSERT NAME OF LENDER]
By :_______________________
Name:
Title:
Accepted this _____ day of
________________, _______.
TELIGENT, INC.
By: ____________________________________
Name:
Title:
Accepted this ____ day of
________________, _______.
THE CHASE MANHATTAN BANK, as Administrative Agent
By: ___________________________
Name:
Title:
3
Exhibit A to the
Amendment and Consent,
dated as of March 30, 2001
Convertible Notes
Term Sheet
Issuer: Teligent, Inc. (the "Company").
Investors: Such Persons as determined by the Company.
Issue: Convertible Notes, in one or more series (all series
taken together the "Notes").
Amount: Not to be less than $100 million nor to exceed $150
million.
Term: 5.5 years from date of first draw down of the
respective Series.
Interest Rate:
(applicable to all series)
1. From initial draw down to shareholder
approval of the Exchange Rights and
Warrants: Libor plus 550 basis points, cash
pay, on drawn Notes.
2. Upon shareholder approval of the Exchange
Rights and the Warrants the rate is reset at
8%, which, at the Company's option, shall be
PIK or paid in the Company's common stock.
3. If the Exchange Rights and the Warrants are
not approved at the shareholder's meeting,
then the Notes become due and payable six
(6) months after such shareholders meeting.
The Company will hold the shareholders
meeting as soon as practicable, but in no
case later than June 30, 2001.
Availability: Each series shall be available for draw down to
the Company in tranches at any time after closing.
All draws must be made within 15 months after the
execution of the definitive agreements for the Notes.
Teligent, Inc. Convertible Notes Term Sheet 2
Conditions
Precedent: The availability of one series, which shall be in
an amount equal to or in excess of $25 million
("Series A"), is contingent only on: (a) the
Company's obtaining a commitment(s) for vendor
financing of at least $250 Million, (b) the
Company's closing on a commitment for an additional
$50 million of debt or equity financing as permitted
by the Credit Agreement (as amended by the
Amendment), which condition has been satisfied by
the Common Stock Purchase Agreement, dated
December 7, 2000, between RGC International
Investors, LDC and the Company, and (c) the
Company's granting the Note Holders a junior lien
on the collateral pool pledged for the benefit of the
Company's lenders in the Credit Facility.
One series, which shall be in an amount equal to or
in excess of $75 million ("Series B"), shall close
after the end of Q2 2001, subject only to the
Company's meeting the Operating Milestones (described
below) for Q1 and Q2 2001. Following the closing of
Series B, draws against Series B shall coincide with
simultaneous draws against the vendor facility,
and/or other facilities available to the Company,
either debt or equity, in accordance with a ratio of
$1 dollar drawn against Series B for each $2 drawn
against other facilities.
Ranking: The Notes shall be subordinate, in right of payment,
to the Obligations, and any security interest
securing the Notes shall be subordinate to the
security interest of the Collateral Agent, in each
case pursuant to subordination and intercreditor
provisions reasonably acceptable to the
Administrative Agent.
Purpose: The Company may draw down on the Notes from time to
time only to finance the acquisition and development
of telecommunications assets.
Exchange Rights: Subject to shareholders approval, the Note holders
may exchange the Notes for the Company's common stock
or into the common stock of Teligent International,
Ltd. pursuant to terms agreed upon by the Company and
the Investors, provided that the amount
converted, if exchanged into the common stock
of Teligent International, Ltd., does not exceed
20% of the equity in Teligent International, Ltd.
at the time of conversion.
Operating
Milestones: There shall be no financial covenant requirements (i)
other than those set forth in Section 6.1 clauses (c)
and (k) of the Credit Agreement (as amended by the
Amendment) and (ii) for any period except Q1 and Q2
2001.