LOAN AGREEMENT
dated as of August 12, 1996
by and
between
AER FORCE COMMUNICATIONS B, L.P.,
as "Borrower,"
and
▇▇▇▇▇ PCS CORPORATION F,
as "Lender"
LOAN AGREEMENT
This Loan Agreement (this "Agreement") dated as of August 12,
1996 is entered into by and between Aer Force Communications B, L.P., a Delaware
limited partnership ("Borrower"), and ▇▇▇▇▇ PCS CORPORATION F, a Delaware
corporation ("Lender").
RECITALS:
WHEREAS, Borrower desires Lender to extend a loan to Borrower in
such amount and on such terms as set forth herein to acquire PCS Licenses
pursuant to the F-Block Auction; and
WHEREAS, Lender is prepared to make such Loan upon the terms and
subject to the conditions set forth herein only for the purposes of the
Partnership acquiring and operating PCS Licenses in the F-Block.
AGREEMENT:
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"Applicable Rate": An interest rate, compounded annually, equal
to 15% per annum.
"Business Day": A day other than a Saturday, Sunday or other day
on which commercial banks in New York are authorized or required by law to
close.
"Loan Documents": This Agreement, the Note, and all other
documents executed in connection with this Agreement and/or the Loan.
"Maturity Date": The Fifth (5th) Anniversary of the date hereof.
"Note": The promissory note substantially in the form of Exhibit
A hereto to be executed by Borrower, payable to the order of Lender.
"Partnership Agreement": The Partnership Agreement of Borrower
dated as of July 26, 1996.
"Subsidiary": Any corporation of which fifty percent (50%) or
more of the issued and outstanding voting securities are, directly or
indirectly, owned by Borrower or any Subsidiary of Borrower or any other entity
of which fifty percent (50%) or more of the ownership interests are owned,
directly or indirectly, by Borrower or any Subsidiary of Borrower.
SECTION 1.02. Incorporation of Certain Terms By Reference.
Capitalized terms used herein but not otherwise defined shall have the meanings
specified in the Partnership Agreement as in effect on the date hereof.
ARTICLE II
THE LOAN
SECTION 2.01. The Initial Loan.
(a) The Loan. Lender agrees, on the terms and conditions
hereinafter set forth, to make a loan (the "Initial Loan") to Borrower in the
aggregate principal amount of Eleven Million, Eight Hundred Thousand Dollars
($11,800,000). The Initial Loan shall be made immediately prior to the date
that the Borrower is required to make up-front deposits to the FCC for the F-
Block Auction and shall be used by Borrower for such purpose and for the
purposes set forth in Paragraph (b) of this Section 2.01.
(b) Mandatory Prepayment.
(1) If after the termination of the F-Block Auction,
Borrower has any funds, including Initial Capital Contributions as provided in
the Partnership Agreement, which are not being used, or reasonably held for use,
to fund the initial 10% down payment (due within 5 business days after release
of the F-Block Auction closing notice) for any PCS Licenses won by Borrower in
the F-Block Auction, Borrower shall, upon the written demand of Lender,
immediately prepay the Initial Loan in an amount equal to such unused proceeds.
(2) If the FCC shall not grant any PCS Licenses to
Borrower in respect of any PCS Licenses won in the F-Block Auction or if any PCS
License granted to Borrower pursuant to the F-Block Auction is either
transferred or revoked, Borrower shall, upon the demand of Lender, immediately
prepay all amounts owed by Borrower to Lender under the Loan Documents. If no
PCS Licenses are granted to Borrower, Borrower shall not have to pay any
interest or commitment fees, but only to pay the principal of the Loan.
(3) The net proceeds from the sale by the Partnership of
any assets shall be used to prepay promptly a portion of the Loan equal to said
net proceeds.
(4) Any prepayment under (b)(1) and (b)(3) hereof shall be
applied to the payment of any accrued and unpaid principal before any
application to principal.
(c) Supplemental Loans. Lender agrees, on the terms and
conditions set forth, to make loans ("Supplemental Loans") to Borrower from time
to time in an aggregate principal amount up to the amount prepaid by Borrower
pursuant to Section 2.01 (b)(1); provided, however, that the total of the
Initial Loan and Supplemental Loans shall not exceed 60% of the cost (net of any
bidding credits) of all PCS Licenses granted to Borrower pursuant to the F-Block
Auction, in each case reduced by any amounts deemed to be Supplemental Loans
pursuant to the second succeeding sentence. Supplemental Loans shall only be
used for the following purposes:
(i) to fund the remaining 10% down payment due after PCS
Licenses are granted;
(ii) to make installment interest and principal payments on any
PCS Licenses granted to Borrower pursuant to Section
24.716 of the FCC Rules;
(iii) to make payments pursuant to the next to last sentence of
Section 1 and the proviso clause of Section 2 of the Expenses
Agreement (the "Expenses Agreement") dated as of July 26, 1996
among the Partnership, the General Partner and the Initial
Limited Partner; and
(iv) any other business purposes approved in writing by Lender;
Supplemental Loans shall also include (1) all reasonable out-of-pocket expenses
(including reasonable attorneys' fees) of the Initial Limited Partner pursuant
to Section 1(b) of the Expenses Agreement and (2) all reasonable costs and
expenses (including reasonable attorneys fees) (a) incurred by Lender in
connection with the negotiation and preparation of this Agreement and each of
the other Loan Documents and (b) incurred by Lender or the lender to Lender with
respect to the borrowing contemplated by the last sentence of Section 8.06;
provided, however, that the amounts deemed Supplemental Loans under this
sentence shall not exceed $37,500. Lender's obligation to make Supplemental
Loans (1) is conditional on Borrower being in full compliance with all the
representations, warranties and covenants of Borrower contained in the Loan
Documents, no Event of Default hereunder having occurred, and the FCC not having
threatened to revoke any PCS Licenses granted to Borrower in the F-Block Auction
and (2) shall terminate on the earlier of the maturity of the Loan (whether at
the Maturity Date, by acceleration or otherwise) or the payment in full of the
Loan. The term "Loan" shall include the Initial Loan, the Supplemental Loans,
interest (including compounded interest) and all other amounts payable to Lender
under the Loan Documents.
(d) Commitment Fees. Borrower shall pay to Lender a commitment
fee of 20% per annum from the date of the Initial Loan on the total Eleven
Million Eight Hundred Thousand Dollars ($11,800,000) commitment to make Loans
(including any used portion); provided, however, that the total dollar amount
of such commitment shall not exceed 60% of the cost (net of any bidding credits)
of all PCS Licenses granted to Borrower pursuant to the C-Block Auction (in each
case reduced by any amounts deemed to be the Supplemental Loans pursuant to the
third sentence of Section 2.01(c)). The commitment fees shall be due and
payable, without interest, on the date when the commitment to make Supplemental
Loans shall terminate pursuant to clause (2) of the next to last sentence of
Section 2.01(c). If the commitment fees are not paid when so due and payable,
the commitment fees shall be deemed to bear interest at twice the Applicable
Rate until the date of payment. The commitment fees shall cease to accrue on
the earlier of the Maturity Date or the payment in full of the Loan.
SECTION 2.02. The Note. The Loan made by Lender pursuant hereto
shall be evidenced by the Note, representing the obligation of Borrower to pay
the aggregate unpaid principal amount of the Loan made by Lender, with interest
thereon as prescribed in Section 2.05.
SECTION 2.03. Payment of Principal. The entire unpaid principal
amount of the Loan, together with all accrued and unpaid interest thereon, shall
be due and payable on the Maturity Date.
SECTION 2.04. Optional Prepayment. Borrower may, at its option,
prepay the Loan, without premium except as provided in the Note, in whole or in
part at any time and from time to time; provided that Lender shall have received
from Borrower notice of any such prepayment at least five (5) Business Days
prior to the date of the proposed prepayment, in each case specifying the date
and the amount of prepayment. Partial payments hereunder shall be in an
aggregate principal amount of $50,000 or any integral multiple thereof. Any
such prepayments shall be applied to the payment of any accrued and unpaid
interest before any application to principal.
SECTION 2.05. Interest Rate and Payment Dates.
(a) Interest Rate and Payment. The Loan shall bear interest on
the unpaid principal amount thereof from the date made through maturity (whether
at the Maturity Date, by acceleration or otherwise) at the Applicable Rate. All
accrued and unpaid interest on the Loan shall be compounded annually and payable
on the Maturity Date. Interest on the Loan shall be computed on the basis of
a 360-day year for the actual number of days elapsed. In computing interest on
the Loan, the date of the making of the Loan shall be included and the date of
payment of the Loan shall be excluded.
(b) Default Interest. Upon the occurrence, and during the
continuation of, any Event of Default, the principal amount of the Loan and any
interest accrued and unpaid thereon shall bear interest at the Applicable Rate
plus 3% per annum.
SECTION 2.06. Security, Other.
(a) Security. All amounts payable pursuant to the Loan
Documents shall be secured to the extent permitted by law by a security interest
in all the assets of Borrower.
(b) Not Exceed Maximum Rate. Notwithstanding the foregoing,
neither interest on the Loan nor commitment and other fees shall exceed the
highest rate permitted by applicable law.
ARTICLE III
GENERAL PROVISIONS CONCERNING THE LOAN
SECTION 3.01. Payments. Borrower shall make each payment of
principal, interest and fees hereunder and under the Note, without setoff or
counterclaim, not later than 11:00 a.m. New York City time, on the day when due,
in lawful money of the United States of America to Lender by wire transfer sent
to an account designated in writing from time to time by Lender, in immediately
available funds. Payments received after such time shall be deemed to have been
paid by Borrower on the next succeeding Business Day.
SECTION 3.02. Payment on Non-Business Days. If any payment to
be made hereunder or under the Note shall be stated to be due on a day which is
not a Business Day, such payment may be made on the next succeeding Business
Day, and with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
SECTION 3.03. Conditions; Documentation. As a condition to the
making of the Loan, Borrower will execute and deliver or cause to be executed
and delivered to Lender such documents, instruments and certificates as Lender
may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants as follows:
SECTION 4.01. Organization. Borrower is a limited partnership
duly formed and validly existing and in good standing under the laws of the
State of Delaware, is duly qualified to transact business in all jurisdictions
in which the conduct of its business requires such qualification, and has full
partnership power and authority to conduct its business and to enter into and
perform its obligations under the Loan Documents.
SECTION 4.02. Authorization. The execution, delivery and
performance of the Loan Documents by Borrower has been duly authorized by all
necessary partnership action on the part of Borrower. Each Loan Document has
been duly executed by Borrower and delivered by Borrower to Lender and
constitutes the legal, valid and binding obligation of Borrower, enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency or other laws affecting creditors' rights generally and
the exercise of judicial discretion in accordance with general equitable
principles.
SECTION 4.03. No Conflict. The execution, delivery and
performance of each Loan Document by Borrower, and the compliance with the terms
and conditions hereof and thereof by Borrower, does not, with or without the
giving of notice or the lapse of time or both, conflict with, breach the terms
or conditions of, constitute a default under, or violate the (i) Partnership
Agreement, (ii) any agreement to which Borrower is a party, or (iii) any
judgment, decree, order, law, rule or regulation applicable to Borrower.
SECTION 4.04. Litigation. There is no unsatisfied judgment,
award, order, writ, injunction, arbitration decision or decree outstanding or
any litigation, proceeding, claim or investigation pending or, to the best
knowledge of Borrower, threatened against Borrower which may adversely affect
the ability of Borrower to enter into and perform its obligations under Loan
Documents.
SECTION 4.05. Accuracy of Representations and Warranties;
Disclosure. The representations and warranties of the General Partner set forth
in the Partnership Agreement are true and correct in all material respects. No
representation or warranty of Borrower set forth in this Agreement, or any
certificate or written statement furnished by Borrower or Lender for use in
connection with the transactions contemplated hereby, and no representation or
warranty of the General Partner set forth in the Partnership Agreement, contains
any untrue statement of material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein not
misleading.
ARTICLE V
AFFIRMATIVE COVENANTS
Borrower covenants that so long as any of the Loan or any
obligation of Borrower under the Loan Documents remains outstanding, and until
payment in full of all obligations of Borrower subject hereto, Borrower shall:
SECTION 5.01. Punctual Payments. Punctually pay the interest
and principal in respect of the Loan and all other obligations under any of the
Loan Documents at the times and place and in the manner specified in the Loan
Documents.
SECTION 5.02. Accounting Records. Maintain adequate books
and records in accordance with generally accepted accounting principles
consistently applied ("GAAP"), and permit any representative of Lender, at any
reasonable time, to inspect, audit and examine such books and records, to make
copies of the same, and to inspect the properties of Borrower.
SECTION 5.03. Financial Statements and Reports. Provide to
Lender the following, in form and detail satisfactory to Lender:
(a) not later than ninety (90) days after the end of each
fiscal year of Borrower, an audited balance sheet of Borrower as of the end of
such fiscal year, and the related audited statements of operations and cash
flows of Borrower for the twelve-month period ended on the last day of such
fiscal year, in each case, prepared in accordance with GAAP, together with an
auditor's report thereon prepared by a nationally recognized firm of certified
public accountants;
(b) not later than thirty (30) days after the end of each
fiscal quarter of Borrower, an unaudited balance sheet of Borrower as of the
last day of such fiscal quarter and the related unaudited statements of
operations and cash flows of Borrower for the three (3) month period ended on
the last day of such fiscal quarter, in each case, prepared in accordance with
GAAP (subject to normal year-end adjustments and the absence of footnotes);
(c) within five (5) days of receipt by members of the
Partnership Committee, any written report (including any Business Plan or any
amendment thereto) provided to the members of the Partnership Committee
concerning the business, assets, condition (financial or otherwise) or prospects
of the Borrower or its business; and
(d) from time to time such other information as Lender
may reasonably request.
SECTION 5.04. Compliance. Maintain all PCS Licenses and all
other licenses, permits, governmental approvals, rights, privileges and
franchises necessary for the conduct of Borrower's business; conduct its
business in an orderly and regular manner and in a manner consistent with the
terms of the Partnership Agreement; and comply with the provisions of the
Partnership Agreement and all laws, rules, regulations and orders of any
governmental authority applicable to Borrower or its business.
SECTION 5.05. Insurance. Maintain and keep in force
insurance of the types and in amounts customarily carried in lines of business
similar to Borrower's, including but not limited to fire, extended coverage,
public liability, property damage and workers' compensation, carried with
companies and in amounts satisfactory to Lender, and deliver to Lender from time
to time at Lender's request schedules setting forth all insurance then in
effect.
SECTION 5.06. Facilities. Keep all Borrower's properties
useful or necessary to Borrower's business in good repair and condition, and
from time to time make necessary repairs, renewals and replacements thereto so
that Borrower's properties shall be fully and efficiently preserved and
maintained.
SECTION 5.07. Taxes and Other Liabilities. Pay and discharge
when due any and all indebtedness, obligations, assessments and taxes, both real
or personal and including federal and state income taxes, except such as
Borrower may in good faith contest or as to which a bona fide dispute may arise,
provided provision is made to the satisfaction of Lender for eventual payment
thereof in the event that it is found that the same is an obligation of
Borrower.
SECTION 5.08. Notification. Promptly give notice in writing
to Lender of (i) the occurrence of any Event of Default or any event reasonably
likely to result in the occurrence of an Event of Default, or (ii) any material
adverse change in the business, assets, condition (financial or otherwise) or
prospects of Borrower.
SECTION 5.09. Supplemental Loans Replacement. At the request
of Lender, Borrower will use its best efforts to refinance the Loan.
ARTICLE VI
NEGATIVE COVENANTS
Borrower further covenants that so long as the Loan or any
obligation under the Loan Documents remains outstanding, and until payment in
full of all obligations of Borrower subject hereto, Borrower will not without
the prior written consent of Lender:
SECTION 6.01. Use of Proceeds. Use any of the proceeds of
the Loan except for the purposes stated in Section 2.01 hereof.
SECTION 6.02. Conduct of Business. Conduct any business
other than the Partnership Business.
SECTION 6.03. Merger; Consolidation, Etc.. Merge,
consolidate or combine with any other Person or sell all or substantially all
of Borrower's assets or properties.
SECTION 6.04. Acquisition and Disposition of Assets. Acquire, sell,
lease, exchange, transfer, mortgage, pledge, license or dispose
of assets in any transaction or series of related transactions involving
consideration of a value in excess of $100,000 in any 12-month period or
$300,000 in the aggregate.
SECTION 6.05. Incurrence of Indebtedness. Incur indebtedness
for borrowed money, or refinance, modify or extend any indebtedness of Borrower
for borrowed money.
SECTION 6.06. Capital Expenditure; Investments. Make any
capital expenditure, investment or capital contribution, or any commitment to
make any capital expenditure, investment or capital contribution in an amount
in excess of $100,000 in any 12-month period or $300,000 in the aggregate.
SECTION 6.07. Loans; Guarantees. Make any loan or
guarantee any indebtedness or liability of any other Person.
SECTION 6.08. Partnership Distributions. Distribute any
assets or property of Borrower to any Partner of Borrower or redeem, repurchase
or otherwise retire for value any partnership interest of any Partner of
Borrower.
SECTION 6.09. Material Agreements. Enter into (i) any
Affiliation Agreement, (ii) any joint venture, partnership or other similar
agreement or (iii) any agreement, contract or lease that is entered into other
than in the ordinary course of business or that involves the furnishing or
receipt of consideration to or by Borrower with value in excess of $100,000 in
any 12-month period or $300,000 in the aggregate.
SECTION 6.10. Related Party Transaction. Enter into any
Related Party Transaction.
SECTION 6.11. Modification of PCS Licenses. Surrender, not
seek renewal, or seek the transfer, of any PCS License held by Borrower or agree
to any material modification to any PCS License held by Borrower.
SECTION 6.12. Pledge of Assets. Mortgage, pledge, grant or
permit to exist a security interest in, or lien upon, any of its assets of any
kind, now owned or hereafter acquired.
SECTION 6.13. Subsidiary. Create or acquire any interest in
any Subsidiary.
SECTION 6.14. Change in Benefits. Continue to Partici- ▇▇▇▇
in the F-Block Auction process or acquire any PCS License awarded to Borrower
pursuant to the F-Block Auction, if for any reason any of the benefits
(including without limitation bidding credits and instalment payment terms)
available to a small business as provided in the FCC Rules as of the date hereof
shall cease to be available to the Borrower.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. The occurrence of any of the
following events shall constitute an event of default hereunder (an "Event of
Default"):
(a) Borrower shall fail to pay any portion of the principal or
interest of the Loan or other amount payable hereunder or under the Note when
due; or
(b) Any representation or warranty made by Borrower herein or
in connection with any other Loan Document, shall prove to have been incorrect
in any material respect when made; or
(c) Borrower shall default in any material respect in the timely
performance of or compliance with any term or condition contained in any Loan
Document, and such default shall not have been remedied or waived for twenty
(20) Business Days after such failure, or any Partner (other then Lender) shall
default in any material respect in the performance of or compliance with any
term or condition of the Partnership Agreement or the Expenses Agreement, and
such default shall not have been remedied within ten (10) Business Days of such
default; or
(d) Borrower shall (i) have an order for relief entered with
respect to it under any federal or state bankruptcy law or any similar law
relating to the enforcement of creditors rights generally (a "Bankruptcy Law")
(ii) not pay, or admit in writing his inability to pay its debts generally as
they become due, (iii) make an assignment for the benefit of its creditors, (v)
apply for, seek, consent to, or acquiesce in, the appointment of a receiver,
custodian, conservator, trustee, examiner, liquidator or similar official for
his or any substantial part of his property, (vi) institute any proceeding
seeking an order for relief under any Bankruptcy Law or seeking to adjudicate
it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (vii) take any action to
authorize or effect any of the foregoing actions, or (viii) fail to contest in
good faith any appointment or proceeding described in this Subsection 7.01(d);
or
(e) A receiver, custodian, conservator, trustee, examiner,
liquidator or similar official shall be appointed for Borrower or any
substantial part of its property, or a proceeding described in Subsection
7.01(d)(v) shall be instituted against Borrower and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 60 consecutive days;
(f) There shall have occurred an event of dissolution of the
Partnership within the meaning of Section 9.1 of the Partnership Agreement; or
(g) The FCC shall have revoked, or has instituted proceedings
to revoke, any PCS Licenses granted to the Borrower in the F-Block Auction;
(h) The General Partner shall have Transferred any of its
interest in the Partnership; or
(i) There shall have occurred a Change of Ownership of the
General Partner within the meaning of Section 7.4 of the Partnership Agreement.
SECTION 7.02. Acceleration; Remedies Upon Occurrence of Event
of Default. Upon the occurrence of any Event of Default described in clause
(d), (e), (f), (g), (h) or (i) of Section 7.01, the Loan (together with accrued
interest thereon) and all other amounts owing under this Agreement, the Note and
the other Loan Documents shall automatically become due and payable, and upon
the occurrence of any other Event of Default, Lender may, by notice to Borrower,
declare the Loan (together with accrued interest thereon) and all other amounts
owing under this Agreement and the other Loan Documents to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Costs, Expenses and Attorneys' Fees. Borrower
shall pay to Lender immediately upon demand the full amount of all reasonable
costs and expenses (including reasonable attorneys' fees) incurred by Lender in
connection with (a) the preparation of amendments and waivers to the Loan
Documents, (b) the enforcement of Lender's rights and/or the collection of any
amounts which become due to Lender under any of the Loan Documents, and (c) the
prosecution or defense of any action in any way related to any of the Loan
Documents, including without limitation any action for declaratory relief.
SECTION 8.02. Amendments, Etc. No amendment or waiver of any
provision of the Loan Documents nor consent to any departure by Borrower or
Lender therefrom, shall in any event be effective unless the same shall be in
writing and signed by the other party, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 8.03. Notices, Etc. Except as otherwise set forth in
this Agreement, all notices and other communications provided for hereunder
shall be in writing (including telegraphic, telex or facsimile communication)
and mailed or telegraphed or telexed or sent by facsimile or delivered, to
Borrower or Lender at their respective addresses set forth on the signature page
hereof; or, as to any other Person, at such other address as shall be designated
by such Person in a written notice to the other parties. All such notices and
communications shall be effective when deposited in the mails, sent by telex or
sent by facsimile, respectively, except that notices and communications to
Lender pursuant to Article II or VII shall not be effective until received by
Lender.
SECTION 8.04. Indemnification. Borrower agrees to indemnify and
hold harmless Lender and the Collateral Agent and their respective affiliates,
directors, officers, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including without limitation reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or by reason of, the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with the Loan Documents, the
proposed or actual use of the proceeds therefrom or any of the other
transactions contemplated hereby or thereby, whether or not such investigation,
litigation or proceeding is brought by Borrower, creditors of Borrower, an
Indemnified Party or any other Person or an Indemnified Party is otherwise a
party thereto, and whether or not the transactions contemplated hereby or by any
other Loan Document are consummated, except to the extent such claim, damage,
loss, liability or expenses is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct.
SECTION 8.05. No Waiver; Remedies. No failure on the part of
Lender or Borrower to exercise, and no delay in exercising, any right under any
of the Loan Documents shall operate as a waiver thereof, nor shall any single
or partial exercise of any right under any of the Loan Documents preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.06. Assignments and Participation. Lender may sell,
assign, transfer, negotiate or grant participation to any other party in all or
part of the obligations of Borrower outstanding under the Loan Documents without
Borrower's prior written consent. Lender may, in connection with any actual or
proposed assignment or participation, disclose to the actual or proposed
assignee or participant, any information relating to Borrower. Lender intends
to borrow the funds necessary to make Loans to Borrower under this Loan
Agreement and may assign this Agreement and the Note as security for such
borrowing.
SECTION 8.07. Effectiveness; Binding Effect; Governing Law.
This Agreement and each other Loan Document shall be binding upon and inure to
the benefit of Borrower, Lender and their respective successors and assigns,
except that Borrower shall not have the right to assign his rights hereunder or
any interest herein without the prior written consent of Lender. THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ITS CHOICE OF
LAW DOCTRINE.
SECTION 8.08. Waiver of Jury Trial. BORROWER AND LENDER HEREBY
AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. LENDER AND BORROWER EACH
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. LENDER AND BORROWER FURTHER WARRANT AND REPRESENT THAT EACH
HAS REVIEWED THIS WAIVER WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY
OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE LOAN DOCUMENTS,
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN.
SECTION 8.09. Consent to Jurisdiction; Venue; Agent for Service
of Process. All judicial proceedings brought against Borrower with respect to
the Loan Documents may be brought in any state or Federal court of competent
jurisdiction in the State of Delaware, and by execution and delivery of this
Agreement, Borrower accepts for itself and in connection with its properties,
generally and unconditionally, the nonexclusive jurisdiction of the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered thereby in
connection with the Loan Documents. Borrower irrevocably waives any right it
may have to assert the doctrine of forum non conveniens or to object to venue
to the extent any proceeding is brought in accordance with this Section 6.09.
SECTION 8.10. Entire Agreement. The Loan Documents embody the
entire agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersede all prior agreements and understandings
between the parties hereto relating to the subject matter hereof.
SECTION 8.11. Separability of Provisions. In case any one or
more of the provisions contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
SECTION 8.12. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 8.13. Independence of Covenants. All covenants
hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another
covenant shall not avoid the occurrence of an Event of Default if such action
is taken or condition exists.
SECTION 8.14. Survival of Representations. All representations
and warranties of Borrower contained in any Loan Document shall survive delivery
of the Note and the making of the Loan herein contemplated.
SECTION 8.15. Non-Recourse to General Partner. Lender shall
have no recourse against the Partnership Committee members, any Partner, any
member of the General Partner Control Group, nor any of their respective
officers, directors, employees, agents, shareholders, partners or controlling
persons, nor any of their respective assets (except to the extent such assets
are also assets of the Borrower), for the payment of any principal of or
interest on the Loan, commitment fees, or any other amount due under any Loan
Document, or for the breach of any representation, warranty, covenant or
agreement (other than any covenant or agreement set forth in Sections 6.2 and
6.4 of the Partnership Agreement) under any Loan Document.
SECTION 8.16. Ratification. If the Board of Directors of ▇▇▇▇▇
Corporation, an Indiana corporation, shall not ratify the execution of the Loan
Agreement dated as of August 12, 1996, between it, as borrower, and , as
lender, by August 26, 1996, Borrower shall, at the request of Lender, promptly
withdraw its application to participate in the F-Block Auction and, as soon as
it has received back its up-front deposit, promptly repay the Initial Loan. At
that time, this Agreement will terminate.
IN WITNESS OF THEIR AGREEMENT, the parties have executed this
Agreement as of the date first set forth above.
"Lender"
▇▇▇▇▇ PCS CORPORATION F
By: _______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
"Borrower":
AER FORCE COMMUNICATIONS B, L.P.
By: AER FORCE COMMUNICATIONS CORPORATION,
its General Partner
By:
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
EXHIBIT A
PROMISSORY NOTE
$11,800,000 August 12, 1996
FOR VALUE RECEIVED, Aer Force Communications B, L.P., a Delaware limited
partnership ("Borrower"), promises to pay to ▇▇▇▇▇ PCS Corporation F ("Lender")
or order, by wire transfer sent to an account designated in writing to Borrower
from time to time by the holder hereof (or in such other manner or at such other
place as the holder hereof shall notify Borrower in writing), the principal
amount of Eleven Million Eight Hundred Thousand Dollars ($11,800,000) or so much
thereof as may have been loaned or deemed loaned by Lender to Borrower pursuant
to the Loan Agreement, with interest from the date hereof on the unpaid
principal balance hereunder at the rate of interest set forth in that certain
Loan Agreement of even date herewith between Borrower and Lender (the "Loan
Agreement"), including, without limitation, default interest as set forth in
Section 2.04 of the Loan Agreement. (Capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in the Loan
Agreement). The principal amount under this Note, and all accrued and unpaid
interest thereon, shall be due and payable on the Maturity Date, unless the
Maturity Date is extended or otherwise modified pursuant to the Loan Agreement.
Each payment under this Note shall first be credited against
accrued and unpaid interest, and the remainder shall be credited against
principal. This Note may be prepaid in whole or in part at any time, after five
(5) Business Days written notice of Borrower's intention to make any such
prepayment, which notice shall specify the date and amount of such prepayment.
Partial payment hereunder shall be in an aggregate principal amount of Fifty
Thousand Dollars ($50,000) or any integral multiple thereof. The written notice
of Borrower to make a prepayment hereunder shall create an obligation of
Borrower to pay the amount specified on the date specified in such notice. Any
prepayment shall be without penalty except that interest shall be paid to the
date of payment on the principal amount prepaid.
Principal and interest shall be payable in lawful money of the
United States of America.
Upon the occurrence of an Event of Default under the Loan
Agreement the holder hereof may, at its option, without notice to or demand upon
Borrower or any other party, except as otherwise provided in the Loan Agreement,
declare immediately due and payable the entire principal balance hereof together
with all accrued and unpaid interest hereon, plus any other amounts then owing
pursuant to this Note or the Loan Agreement, whereupon the same shall be
immediately due and payable. On each anniversary of the date of any default
hereunder and while such default is continuing, all interest which has become
payable and is then delinquent shall, without curing the default hereunder by
reason of such delinquency, be added to the principal amount due under this
Note, and shall thereafter bear interest at the same rate as is applicable to
principal. In no event shall such interest or other amounts be charged under
this Note which would violate any applicable usury law.
If any default occurs in any payment due under this Note,
Borrower promises to pay all reasonable costs and expenses, including reasonable
attorneys' fees and expenses, incurred by each holder hereof in collecting or
attempting to collect the indebtedness under this Note, whether or not any
action or proceeding is commenced, and hereby waives the right to plead any and
all statutes of limitation as a defense to a demand hereunder to the full extent
permitted by law. None of the provisions hereof and none of the holders' rights
or remedies hereunder on account of any past or future defaults shall be deemed
to have been waived by the holders' acceptance of any past due installments or
by any indulgence granted by the holder to Borrower.
Borrower waives presentment, demand, protest and notice thereof
or of dishonor, and agree that they shall remain liable for all amounts due
hereunder notwithstanding any extension of time or change in the terms of
payment of this Note granted by any holder hereof, any change, alteration or
release of any property now or hereafter securing the payment hereof or any
delay or failure by the holder hereof to exercise any rights under this Note or
the Loan Agreement.
All amounts payable by Borrower pursuant to the Loan Documents shall be
secured by a security interest in all of the assets of Borrower. Lender's
recourse against any Partner of the Lender (and certain others) for the payment
of the principal of, interest on or other sums payable under this Note shall be
limited as set forth in Section 8.15 of the Loan Agreement.
Each Loan, or other credit extension made under this Note will be evidenced
by a written record made by Lender indicating the amount and date of such
transaction. Such records of Lender shall be deemed by Borrower and Lender to
be sufficient evidence of loans made, or credit extended under this Note.
This Note shall be governed by, and construed in accordance with, the laws
of the State of Delaware without giving effect to its choice of law doctrine.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed the day
and year first above written.
AER FORCE COMMUNICATIONS B, L.P.
By: Aer Force Communications Corporation,
its General Partner
By: _________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
TABLE OF CONTENTS
Page
ARTICLE IDEFINITIONS . . . . . . . . . . . . . . . . . . . . . .1
SECTION 1.01. Defined Terms . . . . . . . . . . . . . . . . .1
SECTION 1.02. Incorporation of Certain Terms By Reference. . .2
ARTICLE IITHE LOAN . . . . . . . . . . . . . . . . . . . . . . .2
SECTION 2.01. The Initial Loan . . . . . . . . . . . . . . . .2
SECTION 2.03. Payment of Principal . . . . . . . . . . . . . .5
SECTION 2.04. Optional Prepayment . . . . . . . . . . . . . .5
SECTION 2.05. Interest Rate and Payment Dates . . . . . . . .5
ARTICLE IIIGENERAL PROVISIONS CONCERNING THE LOAN. . . . . . . .6
SECTION 3.01. Payments. . . . . . . . . . . . . . . . . . . .6
SECTION 3.02. Payment on Non-Business Days. . . . . . . . . .6
SECTION 3.03. Conditions; Documentation . . . . . . . . . . .6
ARTICLE IVREPRESENTATIONS AND WARRANTIES . . . . . . . . . . . .6
SECTION 4.01. Organization. . . . . . . . . . . . . . . . . .6
SECTION 4.02. Authorization . . . . . . . . . . . . . . . .7
SECTION 4.03. No Conflict . . . . . . . . . . . . . . . . .7
SECTION 4.04. Litigation. . . . . . . . . . . . . . . . . .7
SECTION 4.05. Accuracy of Representations and Warranties; Disclosure7
ARTICLE V AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . .8
SECTION 5.01. Punctual Payments . . . . . . . . . . . . . .8
SECTION 5.02. Accounting Records. . . . . . . . . . . . . .8
SECTION 5.03. Financial Statements and Reports. . . . . . .8
SECTION 5.04. Compliance. . . . . . . . . . . . . . . . . .9
SECTION 5.05. Insurance . . . . . . . . . . . . . . . . . .9
SECTION 5.06. Facilities. . . . . . . . . . . . . . . . . .9
SECTION 5.07. Taxes and Other Liabilities . . . . . . . . .9
SECTION 5.08. Notification. . . . . . . . . . . . . . . . .9
SECTION 6.01. Use of Proceeds . . . . . . . . . . . . . . 10
SECTION 6.02. Conduct of Business . . . . . . . . . . . . 10
SECTION 6.04. Acquisition and Disposition of Assets . . . 10
SECTION 6.05. Incurrence of Indebtedness. . . . . . . . . 10
SECTION 6.06. Capital Expenditure; Investments. . . . . . 10
SECTION 6.07. Loans; Guarantees . . . . . . . . . . . . . 10
SECTION 6.08. Partnership Distributions . . . . . . . . . 10
SECTION 6.09. Material Agreements . . . . . . . . . . . . 11
SECTION 6.10. Related Party Transaction . . . . . . . . . 11
ARTICLE VIIEVENTS OF DEFAULT . . . . . . . . . . . . . . . . . 11
SECTION 7.01. Events of Default . . . . . . . . . . . . . . 11
SECTION 7.02. Acceleration; Remedies Upon Occurrence of Event of Default13
ARTICLE VIIIMISCELLANEOUS. . . . . . . . . . . . . . . . . . . 13
SECTION 8.01. Costs, Expenses and Attorneys' Fees . . . . . 13
SECTION 8.02. Amendments, Etc . . . . . . . . . . . . . . . 14
SECTION 8.03. Notices, Etc. . . . . . . . . . . . . . . . . 14
SECTION 8.04. Indemnification.. . . . . . . . . . . . . . . 14
SECTION 8.05. No Waiver; Remedies . . . . . . . . . . . . . 14
SECTION 8.06. Assignments and Participation . . . . . . . . 15
SECTION 8.07. Effectiveness; Binding Effect; Governing Law. 15
SECTION 8.08. Waiver of Jury Trial. . . . . . . . . . . . . 15
SECTION 8.09. Consent to Jurisdiction; Venue; Agent for Service of Process16
SECTION 8.10. Entire Agreement. . . . . . . . . . . . . . . 16
SECTION 8.11. Separability of Provisions. . . . . . . . . . 16
SECTION 8.12. Execution in Counterparts . . . . . . . . . . 16
SECTION 8.13. Independence of Covenants . . . . . . . . . . 16
SECTION 8.14. Survival of Representations. . . . . . . . . . 16