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EXHIBIT 10.26.2
EXHIBIT B
COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT
dated as of
September 17, 1999
among
CRICKET WIRELESS COMMUNICATIONS, INC.,
The Representatives and Unrepresented Holders
referred to herein,
and
STATE STREET BANK AND TRUST COMPANY,
as Collateral Agent
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TABLE OF CONTENTS
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms..........................................................1
SECTION 1.02. Terms Generally.......................................................10
SECTION 1.03. Accounting Terms; GAAP................................................11
ARTICLE II
Permitted Additional Obligations; Additional Security Documents
SECTION 2.01. Permitted Additional Obligations......................................11
SECTION 2.02. Additional Security Documents.........................................11
ARTICLE III
Acts of Secured Parties; Amounts of Obligations
SECTION 3.01. Acts of Secured Parties...............................................12
SECTION 3.02. Determination of Amounts of Obligations...............................12
SECTION 3.03. Restrictions on Actions...............................................13
ARTICLE IV
Duties of Collateral Agent
SECTION 4.01. Notice to Secured Parties.............................................14
SECTION 4.02. Actions Under Support Documents.......................................14
SECTION 4.03. Records...............................................................14
ARTICLE V
Collateral Accounts; Distributions
SECTION 5.01. The Collateral Accounts...............................................15
SECTION 5.02. Application of Proceeds...............................................16
SECTION 5.03. Time of Payments......................................................17
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SECTION 5.04. Application of Amounts Not Distributable..............................17
SECTION 5.05. Treatment of Contingent Obligations...................................17
SECTION 5.06. Collateral Agent's Calculations.......................................18
ARTICLE VI
Agreements
SECTION 6.01. Delivery of Agreements................................................18
SECTION 6.02. Information...........................................................18
ARTICLE VII
The Collateral Agent
SECTION 7.01. Appointment; Rights and Duties........................................19
SECTION 7.02. Expenses; Indemnity; Damage Waiver....................................21
ARTICLE VIII
Representations and Warranties
SECTION 8.01. Organization; Powers..................................................22
SECTION 8.02. Authorization; Enforceability.........................................23
SECTION 8.03. Governmental Approvals; No Conflicts..................................23
ARTICLE IX
Intercreditor Arrangements
SECTION 9.01. Security Interests....................................................23
SECTION 9.02. Turnover of Collateral and Certain Payments...........................24
SECTION 9.03. Release of Collateral and Guarantees..................................24
SECTION 9.04. Additional Collateral.................................................25
SECTION 9.05. Purchase of Collateral................................................25
SECTION 9.06. Further Assurances, etc...............................................25
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ARTICLE X
Benefit of Agreement
Benefit of Agreement.................................................................26
ARTICLE XI
Miscellaneous
SECTION 11.01. Notices..............................................................26
SECTION 11.02. Waivers; Amendments..................................................27
SECTION 11.03. Counterparts.........................................................28
SECTION 11.04. Severability.........................................................28
SECTION 11.05. Governing Law; Jurisdiction; Consent to Service of Process...........28
SECTION 11.06. WAIVER OF JURY TRIAL.................................................29
SECTION 11.07. Headings.............................................................29
SECTION 11.08. Successors and Assigns...............................................29
SECTION 11.09. Termination..........................................................30
SECTION 11.10. Complete Agreement...................................................30
EXHIBIT:
Exhibit A -- Form of Permitted Additional Obligations Designation
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COLLATERAL AGENCY AND INTERCREDITOR AGREEMENT dated as
of [ ], 1999, among CRICKET WIRELESS COMMUNICATIONS, INC., a
Delaware corporation, STATE STREET BANK AND TRUST COMPANY, as
Collateral Agent, and the Representatives and Unrepresented
Holders referred to herein.
WHEREAS the Borrower (such term, and other capitalized terms used in
this preliminary statement, having the meanings set forth in this Agreement
below) is entering into the Credit Agreement pursuant to which the Lenders will
make Loans to the Borrower;
WHEREAS the Loan Parties have agreed to enter into certain Security
Documents in order to secure the Credit Facility Obligations and the Subsidiary
Loan Parties have agreed to enter into the Guarantee Agreement in order to
guarantee the Credit Facility Obligations;
WHEREAS the Borrower may from time to time incur Permitted Additional
Obligations that may be secured under the Security Documents and guaranteed
pursuant to the Guarantee Agreement; and
WHEREAS the parties desire to enter into this Agreement in order to set
forth certain agreements with respect to the Obligations to be so secured and
guaranteed, including mechanisms for securing Permitted Additional Obligations
and certain intercreditor arrangements with respect to the enforcement of rights
under the Support Documents and the allocation of proceeds in respect of the
Obligations;
NOW THEREFOR, the parties hereto agree as follows:
ARTICLE I
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Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"Act" has the meaning set forth in Section 3.01.
"Additional Security Document" means any agreement or instrument (other
than the Initial Security Documents) creating or evidencing a security interest
of the Collateral Agent in, or a Lien in favor of the Collateral Agent on, or an
assignment to the Collateral Agent of, any Collateral.
"Administrative Agent" means Lucent Technologies Inc., in its capacity
as administrative agent for the Lenders under the Credit Agreement.
"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Borrower" means Cricket Wireless Communications, Inc., a Delaware
corporation.
"Borrower Pledge Agreement" means the Borrower Pledge Agreement dated as
of the date hereof among Holdings, the Borrower, the Subsidiary Loan Parties and
the Collateral Agent.
"Business Day" has the meaning assigned to such term in the Credit
Agreement.
"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
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with GAAP.
"Collateral" means (a) any and all "Collateral" as defined in any
applicable Security Document and (b) any and all other assets of whatever
nature, tangible or intangible, now owned or existing or hereafter acquired or
arising in which the Collateral Agent has been granted a Lien or security
interest, or that have been assigned to the Collateral Agent, pursuant to any of
the Security Documents.
"Collateral Accounts" has the meaning set forth in Section 5.01(a).
"Collateral Agent" means State Street Bank and Trust Company, in its
capacity as collateral agent for the Secured Parties under the Support
Documents.
"Contingent Obligations" means any Obligations that are contingent
obligations or not yet liquidated, including any obligation for the
reimbursement of any letter of credit that is outstanding but not yet drawn
upon.
"Contingent Obligations Collateral Account" has the meaning set forth in
Section 5.05.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Agreement" means the Credit Agreement dated as of September 17,
1999, among, Holdings, the Borrower, the Lenders and the Administrative Agent.
"Credit Facility Obligations" means (a) the principal of and premium, if
any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such
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proceeding) on the Loans, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise and (b) all other
monetary obligations, including fees, costs, expenses and indemnities, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency, receiver
ship or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) of the Borrower under the Credit Agreement.
"Enforcement Collateral Account" has the meaning set forth in Section
5.01(a).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other
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equity ownership interests in a Person.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"GAAP" means, subject to Section 1.03, generally accepted accounting
principles in the United States of America.
"General Collateral Account" has the meaning set forth in Section
5.01(a).
"General Funds" means funds required to be deposited in the General
Collateral Account as provided in Section 5.01(b).
"General Funds Release Request" means a written request delivered by the
Borrower to the Collateral Agent requesting the Collateral Agent to release
funds from the General Collateral Account. Each General Funds Release Request
(a) shall specify (i) the amount of funds to be released, (ii) the date of the
requested release, (iii) the purpose for which the Borrower expects to use such
funds, (iv) the applicable provisions of the applicable Secured Instrument or
Secured Instruments pursuant to which such funds are being released and (v) the
wire instructions for the transfer of such funds to or for the account of the
Borrower and (b) shall be accompanied by a certificate of a Financial Officer to
the effect that such requested release of funds is not in contravention of any
Secured Instrument.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of
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guaranteeing any Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, and including
any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement dated as of the date
hereof among Holdings, the Subsidiary Loan Parties and the Collateral Agent.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Holder" means any direct holder of, or creditor party to a Secured
Instrument in respect of, any Obligations.
"Holdings" means Cricket Communications, Inc., a Delaware corporation.
"Indebtedness" of any Person means, without
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duplication, (a) all obligations of such Person for borrowed money or with
respect to advances of any kind, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such
Person upon which interest charges are customarily paid, (d) all obligations of
such Person under conditional sale or other title retention agreements relating
to property acquired by such Person, (e) all obligations of such Person in
respect of the deferred purchase price of property or services (excluding
current accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnitee" has the meaning assigned to such term in Section 7.02.
"Indemnity, Subrogation and Contribution Agreement" means the Indemnity,
Subrogation and Contribution Agreement dated as of the date hereof among the
Borrower, the Subsidiary Loan Parties and the Collateral Agent.
"Initial Security Documents" means this Agreement, the Security
Agreement, the Borrower Pledge Agreement and the Parent Pledge Agreement.
"Lenders" means the lenders from time to time
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party to the Credit Agreement.
"License Subsidiary" has the meaning assigned to such term in the Credit
Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Parties" means the Parent, Holdings, the Borrower and the
Subsidiary Loan Parties.
"Loans" has the meaning assigned to such term in the Credit Agreement.
"Moody's means ▇▇▇▇▇'▇ Investors Service, Inc.
"Notice of Cancelation of Enforcement" means, with respect to any Notice
of Enforcement, a notice or notices delivered to the Collateral Agent by the
Representatives and/or Unrepresented Holders representing the Required Secured
Parties, canceling such Notice of Enforcement.
"Notice of Enforcement" means a notice or notices delivered to the
Collateral Agent by Representatives and/or Unrepresented Holders representing
the Required Secured Parties stating that (a) all or part of the Obligations are
due and payable and remain unpaid and any applicable grace period for payment
thereof has lapsed or (b) all or part of the Obligations are then permitted by
the Secured Instrument or Secured Instruments under which such Obligations are
outstanding (because of the occurrence of an event of default or similar event
under such Secured Instrument or
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Secured Instruments) to be declared due and payable prior to the stated maturity
thereof pursuant to the terms of such Secured Instrument or Secured Instruments.
A Notice of Enforcement shall be deemed to have been given when the notice
referred to in the preceding sentence has actually been received by the
Collateral Agent and to have been rescinded when the Collateral Agent has
actually received a Notice of Cancelation of Enforcement. A Notice of
Enforcement shall be deemed to be in effect at all times after such Notice has
been given until such time, if any, as such Notice has been rescinded. The
Representatives and Unrepresented Holders representing the Required Secured
Parties shall rescind a Notice of Enforcement once such Representatives and
Unrepresented Holders are satisfied that the event or events giving rise to such
Notice of Enforcement have been cured or waived in accordance with the
applicable Secured Instrument and no other event has occurred and is continuing
that would permit a Notice of Enforcement to be given.
"Obligations" means, collectively, the Credit Facility Obligations and
all Permitted Additional Obligations.
"Parent" means Leap Wireless International, Inc., a Delaware
corporation.
"Parent Pledge Agreement" means the Parent Pledge Agreement dated the
date hereof among the Parent and the Collateral Agent.
"Permitted Additional Obligations" means (a) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on any
Indebtedness for borrowed money of the Borrower, but only to the extent that
such Indebtedness is designated as "Permitted Additional Obligations" in
accordance with Section 2.01, and (b) all other monetary
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obligations (other than monetary obligations in respect of Indebtedness that
does not constitute Permitted Additional Obligations), including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) of the Borrower under the
Secured Instrument governing or evidencing such Indebtedness referred to in
clause (a) above; provided that any Indebtedness or obligations owing to
Holdings, any Subsidiary Loan Party or Affiliate of the Borrower shall not
constitute Permitted Additional Obligations.
"Permitted Additional Obligations Designation" means each Permitted
Additional Obligations Designation duly completed and executed by the Collateral
Agent, the Borrower and the holder or holders of the Permitted Additional
Obligations referenced therein (or a Representative of such holders) and
delivered pursuant to Section 2.01, substantially in form of Exhibit A.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of
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any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Principal Obligations" means the principal amount of the outstanding
Obligations.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Representative" means, as to any Secured Party or Secured Parties, any
Person designated in the Secured Instrument evidencing or governing the
Obligations held by such Secured Party or Secured Parties as the trustee, agent
or representative of such Secured Party or Secured Parties (including, in the
case of the Credit Facility Obligations, the Administrative Agent).
"Required Committed Secured Parties" means, at any time, Secured Parties
having outstanding Principal Obligations and Secured Instrument Commitments
representing more than 50% of the sum of the total outstanding Principal
Obligations and Secured Instrument Commitments at such time.
"Required Secured Parties" means, at any time, Secured Parties having
outstanding Principal Obligations
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representing more than 50% of the aggregate principal amount of the total
outstanding Principal Obligations at such time.
"S&P" means Standard & Poor's.
"Secured Instrument" means any instrument or agreement (other than the
Support Documents) that evidences or governs the terms of any of the Obligations
(including, in the case of the Credit Facility Obligations, the Credit
Agreement).
"Secured Instrument Commitments" means, at any time, commitments in
effect at such time to extend credit to the Borrower under any Secured
Instrument that, if extended at such time, would constitute Principal
Obligations.
"Secured Parties" means the Collateral Agent and the Holders of the
Obligations (including, in the case of the Credit Facility Obligations, the
Lenders and the Administrative Agent).
"Security Agreement" means the Security Agreement dated as of the date
hereof among the Borrower, the Subsidiary Loan Parties and the Collateral Agent.
"Security Documents" means the Initial Security Documents and the
Additional Security Documents.
"Subordination Agreement" means the Subordination Agreement dated as of
the date hereof among the Loan Parties and the Collateral Agent.
"Subordination Collateral Account" has the meaning set forth in Section
5.01(a).
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
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entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Parties" means the Subsidiaries and the License
Subsidiaries.
"Support Documents" means the Security Documents, the Indemnity,
Subrogation and Contribution Agreement, the Subordination Agreement and the
Guarantee Agreement.
"Unrepresented Holder" means any Holder for which there is no
Representative.
SECTION 1.02. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified, (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections and Exhibits
shall
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be construed to refer to Articles and Sections of, and Exhibits to, this
Agreement and (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts, contract rights,
licenses and intellectual property.
SECTION 1.03. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Collateral Agent that the Borrower requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Collateral Agent notifies the Borrower
that the Required Committed Secured Parties request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
Permitted Additional Obligations;
Additional Security Documents
SECTION 2.01. Permitted Additional Obligations. The Borrower may from
time to time designate any Indebtedness for borrowed money of the Borrower as
Permitted Additional Obligations hereunder by (a) delivering to the Collateral
Agent a Permitted Additional Obligations Designation in respect of such
Indebtedness describing such Indebtedness and attaching thereto a true and
complete copy of all instruments and agreements (together with all
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schedules, exhibits, annexes, appendices and other attachments thereto),
including the applicable Secured Instruments, relating to such Indebtedness to
which the Borrower or any Subsidiary Loan Party is a party, and (b) delivering
to the Collateral Agent a certificate of a Financial Officer and, if requested
by a Representative or an Unrepresented Holder, an opinion of counsel, each to
the effect that such designation of such Indebtedness is not in contravention of
any Secured Instrument. Upon completion of the actions described in clauses (a)
and (b) of the preceding sentence, but subject to the following sentence, the
Indebtedness designated by such Permitted Additional Obligations Designation
shall constitute Permitted Additional Obligations and the Holders thereof shall
constitute Secured Parties hereunder and shall be bound by the provisions
hereof. Notwithstanding anything herein to the contrary, any purported
designation of any such Indebtedness of the Borrower as Permitted Additional
Obligations in violation of any Secured Instrument shall be null and void and of
no force or effect.
SECTION 2.02. Additional Security Documents. If the Borrower or any
Subsidiary Loan Party is required by any Secured Instrument, Security Document
or other agreement to grant a security interest in or Lien on, or assignment of,
any assets (other than assets constituting Collateral under the Initial Security
Documents) of the Borrower or any Subsidiary Loan Party to secure any
Obligations, the Borrower shall, or shall cause the applicable Subsidiary Loan
Party or Subsidiary Loan Parties to, grant such security interest in or Lien on,
or assignment of, such assets to the Collateral Agent to secure all the
Obligations pursuant to an Additional Security Document.
ARTICLE III
Acts of Secured Parties;
Amounts of Obligations
SECTION 3.01. Acts of Secured Parties. Any request, demand,
authorization, direction, notice, consent, waiver or other action permitted or
required by this
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Agreement to be given or taken by any Secured Party or the Required Secured
Parties or Required Committed Secured Parties may be and, at the request of the
Collateral Agent, shall be embodied in and evidenced by one or more instruments
reasonably satisfactory in form to the Collateral Agent and signed by such
Secured Party or its Representative or the Required Secured Parties or Required
Committed Secured Parties or their Representatives (as applicable) and, except
as otherwise expressly provided in any such instrument, any such action shall
become effective when such instrument or instruments shall have been delivered
to the Collateral Agent. The instrument or instruments evidencing any action
(and the action embodied therein and evidenced thereby) are sometimes referred
to herein as an "Act" of the Persons signing such instrument or instruments. The
Collateral Agent shall be entitled to rely absolutely upon (a) an Act of any
Representative if such Act purports to be taken by or on behalf of the Secured
Parties represented by such Representative and (b) an Act of any Holder if such
Act purports to be taken by or on behalf of such Holder, and nothing in this
Section 3.01 or elsewhere in this Agreement shall be construed to require any
Representative or Holder to demonstrate that it has been authorized to take any
action which it purports to be taking, the Collateral Agent being entitled to
rely conclusively, and being fully protected in so relying, on any Act of such
Representative or Holder.
SECTION 3.02. Determination of Amounts of Obligations. Whenever the
Collateral Agent is required to determine the existence or amount of any of the
Obligations or Secured Instrument Commitments or any portion thereof for any
purposes of this Agreement, it shall be entitled to make such determination on
the basis of one or more certificates of any applicable Representative or
Holder; provided that if, notwithstanding the request of the Collateral Agent,
any applicable Representative or Holder shall fail or refuse promptly to certify
as to the existence or amount of any Obligations or Secured Instrument
Commitments or any portion thereof, the Collateral Agent shall be entitled to
determine
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such existence or amount by such method as the Collateral Agent may, in its sole
discretion exercised in good faith, determine, including by reliance upon a
certificate of the Borrower; provided further that, promptly following deter-
mination of any such amount, the Collateral Agent shall notify such
Representative or Holder of such determination and thereafter shall correct any
error that such Representative or Holder brings to the attention of the
Collateral Agent. The Collateral Agent may rely conclusively, and shall be
fully protected in so relying, on any determination made by it in accordance
with the provisions of the preceding sentence (or as otherwise directed by a
court of competent jurisdiction) and shall have no liability to the Borrower or
any Secured Party or any other Person as a result of any action taken by the
Collateral Agent based upon such determination prior to receipt of notice of any
error in such determination.
SECTION 3.03. Restrictions on Actions. Each Secured Party agrees that,
unless and until this Agreement is terminated as provided herein, the provisions
of this Agreement shall provide the exclusive method by which any Secured Party
may exercise, or direct the exercise of, rights and remedies under the Support
Documents. Therefore, each Secured Party shall, for the mutual benefit of all
Secured Parties, except as permitted under this Agreement:
(a) refrain from taking or filing any action, judicial or
otherwise, to enforce any rights or pursue any remedies under the
Support Documents, except for delivering notices hereunder; and
(b) refrain from exercising any rights or remedies under the
Support Documents which may be exercisable as a result of an event that
could result in a Notice of Enforcement;
provided that the foregoing shall not prevent (i) any Secured Party from
imposing a default rate of interest in accordance with the applicable Secured
Instrument, (ii) the Collateral Agent from exercising any right or remedy or
taking any other action that it is permitted or authorized to exercise or take
or (iii) a Secured Party from exercising
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its rights and remedies as a general creditor in accordance with the applicable
Secured Instrument and applicable law, including the right to commence legal
proceedings to collect any Obligation due and payable to such Secured Party and
remaining unpaid, to accelerate the maturity of any Obligations or to terminate
any Secured Instrument Commitment in accordance with the applicable Secured
Instrument, to commence legal proceedings to enforce any Secured Instrument and
obtain a judgment and to enforce such judgment, in each case to the same extent
as if such Secured Party were an unsecured creditor.
ARTICLE IV
Duties of Collateral Agent
SECTION 4.01. Notice to Secured Parties. The Collateral Agent shall
promptly notify each Representative and Unrepresented Holder in the event it
shall receive any Notice of Enforcement or any Notice of Cancelation of
Enforcement or any request by any party hereto or by any Loan Party for any
consent, waiver or amendment with respect hereto or any other Support Document.
SECTION 4.02. Actions Under Support Documents. The Collateral Agent
shall not be obligated to take any action under this Agreement or any of the
Support Documents except for the performance of such duties as are specifically
set forth herein or therein. Subject to the provisions of Article VII, the
Collateral Agent shall take any action under or with respect to the Support
Documents which is requested by the Required Committed Secured Parties (or, at
any time when a Notice of Enforcement is in effect, the Required Secured
Parties) and which is not inconsistent with or contrary to the provisions of
this Agreement or any other Support Document. At any time when a Notice of
Enforcement shall be in effect, the Collateral Agent shall, subject in all cases
to the provisions of Article VII, exercise or refrain from exercising all such
rights, powers
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and remedies as shall be available to it under the Support Documents or any of
them in accordance with any written instructions received from the Required
Secured Parties. Absent written instructions from the Required Secured Parties
at a time when a Notice of Enforcement shall be in effect, the Collateral Agent
may take, but shall have no obligation to take, any and all such actions under
the Support Documents or any of them or otherwise as it shall deem to be in the
best interests of the Secured Parties in order to maintain the Collateral and
protect and preserve the Collateral and the rights of the Secured Parties.
SECTION 4.03. Records. The Collateral Agent shall maintain records
regarding determinations of the amounts of the outstanding Obligations and
Secured Instrument Commitments for any purpose, any distributions from the
Collateral Accounts and any information received by the Collateral Agent
pursuant to Section 6.02. The information contained in such records shall be
made available to any Secured Party upon request.
ARTICLE V
Collateral Accounts; Distributions
SECTION 5.01. The Collateral Accounts. (a) The Collateral Agent shall
establish and maintain at its office located at [ ] three collateral accounts
designated the "Enforcement Collateral Account", the "Subordination Collateral
Account" and the "General Collateral Account", respectively (such collateral
accounts, collectively, the "Collateral Accounts").
(b) All amounts which are received by the Collateral Agent (in its
capacity as Collateral Agent) in respect of the Collateral, whether in
connection with the exercise of any right or remedy provided in this Agreement
or any other Support Document or otherwise (including all amounts received on
account of any sale of or other
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realization upon any of the Collateral pursuant to any Security Document), or
pursuant to enforcement of the Guarantee Agreement, in each case while a Notice
of Enforcement is in effect shall be deposited in the Enforcement Collateral
Account. While a Notice of Enforcement is in effect, all amounts on deposit in
or required to be deposited in the Subordination Collateral Account or the
General Collateral Account shall be transferred to the Enforcement Collateral
Account. Upon the rescission of each effective Notice of Enforcement in
accordance with the terms hereof, the Collateral Agent shall (subject to the
payment of any Obligations then due in accordance with Section 5.02) release any
funds then remaining on deposit in the Enforcement Collateral Account to any
Loan Party to the extent required by any of the Security Documents; provided
that such funds in an amount equal to the sum of (x) the amount of General Funds
transferred to the Enforcement Collateral Account from the General Collateral
Account pursuant to paragraph (d) of this Section and (y) the amount of funds
that would have been deposited in the General Collateral Account pursuant to
paragraph (d) of this Section if a Notice of Enforcement had not been in effect,
together with all interest and income on such amounts, shall be deposited in the
General Collateral Account for application in accordance with the terms of
paragraph (d) of this Section.
(c) All amounts which are received by the Collateral Agent (in its
capacity as Collateral Agent) pursuant to terms of the Subordination Agreement
shall be deposited in the Subordination Collateral Account. While a Notice of
Enforcement is in effect, all amounts on deposit in or required to be deposited
in the Subordination Collateral Account shall be transferred to the Enforcement
Collateral Account.
(d) All amounts which are received by the Collateral Agent (in its
capacity as Collateral Agent) which by the terms of any Support Document or any
Secured Instrument are required to be held by the Collateral Agent (other than
amounts required to be deposited in the Enforcement Collateral Account or the
Subordination Collateral Account) shall be deposited in the General
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Collateral Account. While a Notice of Enforcement is in effect, all amounts on
deposit in or required to be deposited in the General Collateral Account shall
be transferred to the Enforcement Collateral Account. The Borrower may, by
delivery to the Collateral Agent of a General Funds Release Request, request a
release of General Funds from the General Collateral Account in accordance with
the applicable provisions of the Support Document or Secured Instrument or
Secured Instruments which required such funds to be deposited with the
Collateral Agent (but only to the extent any funds in the General Collateral
Account were deposited in the General Collateral Account pursuant to such
agreements). If no Notice of Enforcement is in effect on the date on which such
General Funds are requested to be released pursuant to the applicable General
Funds Release Request, the Collateral Agent shall release such General Funds in
accordance with such General Funds Release Request. Pending the receipt by the
Collateral Agent of a General Funds Release Request with respect to any General
Funds or a transfer of such General Funds to the Enforcement Collateral Account
as provided above, the Collateral Agent shall invest such funds in Permitted
Investments (and the proceeds thereof and interest thereon shall constitute part
of such General Funds).
(e) All amounts deposited in the Collateral Accounts shall be held by
the Collateral Agent subject to the terms hereof and of the Support Documents
and shall constitute Collateral under the Security Agreement. No Loan Party
shall have any rights with respect to, and the Collateral Agent shall have
exclusive dominion and control over, the Collateral Accounts.
SECTION 5.02. Application of Proceeds. Subject to Section 5.05, all
amounts deposited in the Enforcement Collateral Account shall be applied in the
following order of priority:
FIRST, to the payment of all costs and expenses incurred by the
Collateral Agent (in its capacity as such
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hereunder or any other Support Document) in connection with any Support Document
or any of the Obligations, including all court costs and the fees and expenses
of its agents and legal counsel, the repayment of all advances made by the
Collateral Agent under any Support Document on behalf of any Loan Party and any
other costs and expenses incurred in connection with the exercise of any right
or remedy hereunder or under any other Support Document;
SECOND, to the Secured Parties pro rata in accordance with the aggregate
amounts of the Obligations outstanding on the date of any such distribution
(whether or not due and payable); and
THIRD, the balance, if any, to the Borrower or its successors and
assigns, or such other Person or Persons as shall be entitled thereto, or as a
court of competent jurisdiction may otherwise direct.
SECTION 5.03. Time of Payments. Subject to any written instructions
received by the Collateral Agent from the Required Secured Parties as to the
times at which any amounts are to be distributed pursuant to Section 5.02, all
distributions under Section 5.02 shall be made at such times as the Collateral
Agent shall, in its sole discretion, determine, subject to Section 5.04.
SECTION 5.04. Application of Amounts Not Distributable. If any
Representative or Unrepresented Holder shall inform the Collateral Agent in
writing that no provision is made under the relevant Secured Instrument for the
application of amounts which are to be distributed in respect of Obligations
under such Secured Instrument pursuant to Section 5.02 (whether by virtue of the
applicable Obligations thereunder not being then due and payable or otherwise)
or for the holding of such amounts by or on behalf of such parties pending
application thereof, then the Collateral Agent shall invest such amounts in
Permitted Investments and shall hold such amounts and all proceeds thereof in
the Enforcement Collateral Account, solely for the Secured Parties represented
by such Representative or such Unrepresented Holder, as the case may be, until
such Representative or Unrepresented Holder shall
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notify the Collateral Agent that such Obligations have been paid (in which case
such amounts and all proceeds thereof shall be applied in accordance with the
provisions of Section 5.02) or shall request the delivery thereof by the
Collateral Agent for application pursuant to such Secured Instrument.
SECTION 5.05. Treatment of Contingent Obligations. Notwithstanding the
foregoing, distributions under clause SECOND of Section 5.02 shall be made
disregarding any Contingent Obligations. If any Contingent Obligations exist at
any time that any amounts are to be distributed to the Borrower under clause
THIRD of Section 5.02, the Collateral Agent shall deposit such amounts up to an
amount equal to such Contingent Obligations in a collateral account established
and maintained at its office located at [ ] (designated the "Contingent
Obligations Collateral Account") for the benefit of the Secured Parties that
have a claim with respect to such Contingent Obligations. The Collateral Agent
shall invest such amounts in Permitted Investments until the Representative of
such Secured Parties or the applicable Unrepresented Holder, as the case may be,
shall notify the Collateral Agent that any or all of the Contingent Obligations
with respect to the Secured Parties represented by such Representative or such
Unrepresented Holder, as the case may be, have become fixed or liquidated (in
which case such amounts up to the amount in the Contingent Obligations
Collateral Account shall be delivered to such Representative or Unrepresented
Holder, as the case may be, to be applied pursuant to the applicable Secured
Instrument) or that such Contingent Obligations have expired or cease to exist
(in which case an amount in the Contingent Obligations Collateral Account in
excess of the Contingent Obligations outstanding at such time shall be applied
in accordance with the provisions of Section 5.02).
SECTION 5.06. Collateral Agent's Calculations. In making the
determinations and allocations required by Section 5.02, the Collateral Agent
may rely upon
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certificates as provided in Section 3.02, as to the amounts payable with respect
to Obligations. If any Secured Party receives any amount pursuant to Section
5.02 in excess of the amount it was entitled to receive pursuant to Section 5.02
as a result of a demonstrable error in the determination of the amount of the
Obligations, then such Secured Party (by becoming a Holder of Obligations and
accepting the benefits of this Agreement) agrees to pay such excess to the
Collateral Agent for application in accordance with Section 5.02 as soon as
practicable after the existence of such error shall have been determined. All
distributions made by the Collateral Agent pursuant to Section 5.02 shall be
(subject to the preceding sentence and to any decree of any court of competent
jurisdiction and to the preceding sentence) final, and the Collateral Agent
shall have no duty to inquire as to the application by any Representative or
Unrepresented Holder of any amounts distributed to them.
ARTICLE VI
Agreements
SECTION 6.01. Delivery of Agreements. The Borrower shall deliver to the
Collateral Agent, promptly upon the execution thereof, true and complete copies
of (a) all amendments, supplements or other modifications to any Secured
Instrument and (b) each Additional Security Document.
SECTION 6.02. Information. On a quarterly basis promptly following the
end of each calendar quarter, and from time to time upon the request of the
Collateral Agent (which request may be made by the Collateral Agent at the
reasonable direction of any Secured Party), the Borrower shall promptly deliver
to the Collateral Agent a list, setting forth as of a specified date not more
than 10 days prior to the date of delivery, of the aggregate outstanding
Obligations and Secured Instrument Commitments and the name and address of each
Secured Party (and the name and address of such Secured Party's Representative,
if any) and the respective amounts of Obligations and Secured Instrument
Commitments attributable to each. The Collateral Agent
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shall provide a copy of the most recent list delivered to it under this Section
to any Secured Party upon request.
ARTICLE VII
The Collateral Agent
SECTION 7.01. Appointment; Rights and Duties. (a) Each of the Secured
Parties hereby irrevocably appoints the Collateral Agent as its agent and
authorizes the Collateral Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Collateral Agent by the terms of
the Support Documents, together with such actions and powers as are reasonably
incidental thereto.
(b) Any Person serving as the Collateral Agent hereunder shall have the
same rights and powers in its capacity as a Secured Party as any other Secured
Party and may exercise the same as though it were not the Collateral Agent, and
such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary or
other Affiliate thereof as if it were not the Collateral Agent hereunder.
(c) The Collateral Agent shall not have any duties or obligations except
those expressly set forth in the Support Documents. Without limiting the
generality of the foregoing, (i) the Collateral Agent shall not be subject to
any fiduciary or other implied duties, regardless of whether a Notice of
Enforcement is in effect, (ii) the Collateral Agent shall not have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Support Documents
that the Collateral Agent is required to exercise in writing by the Required
Secured Parties, and (iii) except as expressly set forth in the Support
Documents, the Collateral Agent shall not have
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any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Parent, the Borrower or the Subsidiary Loan Parties
that is communicated to or obtained by the Person serving as the Collateral
Agent or any of its Affiliates in any capacity. The Collateral Agent shall not
be liable for any action taken or not taken by it with the consent or at the
request of the Secured Parties (or the requisite portion thereof as required by
any applicable provision of this Agreement) or in the absence of its own gross
negligence or wilful mis conduct. The Collateral Agent shall be deemed not to
have knowledge of any event that could result in a Notice of Enforcement unless
and until a Notice of Enforcement is given to the Collateral Agent, and the
Collateral Agent shall not be responsible for or have any duty to ascertain or
inquire into (A) any statement, warranty or representation made in or in
connection with any Support Document or Secured Instrument, (B) the contents of
any certificate, report or other document delivered thereunder or in connection
therewith, (C) the performance or observance of any of the covenants, agreements
or other terms or conditions set forth in any Support Document or Secured
Instrument, (D) the validity, enforceability, effectiveness or genuineness of
any Support Document or Secured Instrument or any other agreement, instrument or
document, or (E) the satisfaction of any condition set forth in any Support
Document or Secured Instrument, other than to confirm receipt of items expressly
required to be delivered to the Collateral Agent.
(d) The Collateral Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Collateral Agent also
may rely upon any statement made to it orally or by telephone and believed by it
to be made by the proper Person, and shall not incur any liability for relying
thereon. The Collateral Agent may consult with legal counsel (who may be counsel
for the
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Parent or the Borrower), independent accountants and other experts selected by
it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
(e) The Collateral Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Collateral Agent. The Collateral Agent and any such sub-agent may perform any
and all its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of the Collateral Agent
and any such sub-agent, and shall apply to their respective activities in
connection with the activities as Collateral Agent.
(f) Subject to the appointment and acceptance of a successor Collateral
Agent as provided in this paragraph, the Collateral Agent may resign at any time
by notifying each Secured Party and the Borrower. Upon any such resignation, the
Required Committed Secured Parties (or, at any time when a Notice of Enforcement
is in effect, the Required Secured Parties) shall have the right to appoint a
successor. If no successor shall have been so appointed by the Required
Committed Secured Parties (or, if applicable, the Required Secured Parties) and
shall have accepted such appointment within 30 days after the retiring
Collateral Agent gives notice of its resignation, then the retiring Collateral
Agent may, on behalf of the Secured Parties, appoint a successor Collateral
Agent which shall be a bank with an office in New York, New York or an Affiliate
of any such bank. Upon the acceptance of its appointment as Collateral Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Collateral Agent,
and the retiring Collateral Agent shall be discharged from its duties and
obligations hereunder. The fees payable by the Borrower to a successor
Collateral Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Collateral
Agent's resignation hereunder, the provisions of this Article shall continue in
effect for the benefit of
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such retiring Collateral Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Collateral Agent.
(g) Each Secured Party acknowledges that it has, independently and
without reliance upon the Collateral Agent or any other Secured Party and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to extend credit to the Borrower pursuant to the
applicable Secured Instrument and enter into this Agreement. Each Secured Party
also acknowledges that it will, independently and without reliance upon the
Collateral Agent or any other Secured Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Support Document or related agreement or any document furnished
hereunder or thereunder.
SECTION 7.02. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all costs and expenses incurred by the Collateral Agent, including the
fees, charges and disbursements of counsel for the Collateral Agent, in
connection with the negotiation, preparation, execution and delivery of the
Support Documents, and (ii) all costs and expenses incurred by the Collateral
Agent, including the fees, charges and disbursements of any counsel, consultants
or appraisers for the Collateral Agent, in connection with (A) the enforcement
or protection of its rights in connection with the Support Documents, including
its rights under this Section and (B) the administration of, and any amendments,
modifications, waivers or supplements of or to the provisions of, any of the
Support Documents.
(b) The Borrower shall indemnify the Collateral Agent and each of its
Related Parties (each such Person being called an "Indemnitee") against, and
hold each Indemnitee harmless from, any and all losses, claims,
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damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of any Support Document or Secured Instrument or any other
agreement or instrument contemplated hereby, or the performance by the parties
to the Support Documents or Secured Instruments of their respective obligations
thereunder, (ii) any extension of credit under any Secured Instrument or the use
of the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by the Borrower or
any of the Subsidiary Loan Parties or at which any Collateral is located, or any
Environmental Liability related in any way to the Borrower or any of the
Subsidiary Loan Parties, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses have resulted from the gross negligence or wilful misconduct of
such Indemnitee.
(c) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby.
(d) All amounts due under this Section shall be payable not later than
30 days after written demand therefor.
ARTICLE VIII
Representations and Warranties
The Borrower represents and warrants to the
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Secured Parties that:
SECTION 8.01. Organization; Powers. Each Loan Party is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite power and authority to carry on its business as
now conducted and, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a material adverse
effect of the Borrower and the Subsidiary Loan Parties taken as a whole, is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.
SECTION 8.02. Authorization; Enforceability. The execution delivery and
performance by each Loan Party of the Support Documents to which it is a party
are within such Loan Party's corporate powers and have been duly authorized by
all necessary company or corporate, as the case may be, and, if required,
stockholder action. This Agreement and each other Support Document has been duly
executed and delivered by each Loan Party that is a party thereto and
constitutes a legal, valid and binding obligation of such Loan Party (as the
case may be), enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 8.03. Governmental Approvals; No Conflicts. The execution,
delivery and performance by each Loan Party of the Support Documents to which it
is a party (a) do not require any consent or approval of, registration or filing
with, or any other action by, any Governmental Authority, except such as have
been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Security Documents, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Loan Party
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or any order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon any Loan
Party or its assets, or give rise to a right thereunder to require any payment
to be made by any Loan Party, and (d) will not result in the creation or
imposition of any Lien on any asset of any Loan Party, except Liens created
under the Security Documents.
ARTICLE IX
Intercreditor Arrangements
SECTION 9.01. Security Interests. The Collateral Agent and each of the
Secured Parties hereby agree that the Liens and security interests granted to
the Collateral Agent under the Security Documents, and the Guarantees provided
under the Guarantee Agreement, shall be treated, as among the Secured Parties,
as having equal priority and shall at all times be shared by the Secured Parties
as provided herein.
SECTION 9.02. Turnover of Collateral and Certain Payments. If any
Secured Party (i) acquires custody, control or possession of any Collateral or
proceeds therefrom or (ii) receives any payment pursuant to enforcement of the
Guarantee Agreement, in each case other than pursuant to the terms of this
Agreement, then such Secured Party shall promptly cause such Collateral,
proceeds or payments to be delivered to or put in the custody, possession or
control of the Collateral Agent for disposition or distribution in accordance
with the provisions of Article V. Until such time as the provisions of the
immediately preceding sentence have been complied with, such Secured Party shall
be deemed to hold such Collateral, proceeds or payments in trust for the parties
entitled thereto hereunder. Notwithstanding the foregoing, no Secured Party
shall be required to deliver to or put in the custody, possession or control of
the Collateral Agent
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or to hold in trust as specified in the preceding sentence any amount of any
Obligation paid or prepaid by the Borrower to it (and not obtained by it through
any sale of or other realization upon any Collateral or by enforcement of its
rights under the Guarantee Agreement as provided herein and in the Support
Documents) in accordance with the terms of the applicable Secured Instrument.
SECTION 9.03. Release of Collateral and Guarantees. (a) In connection
with any sale, transfer or disposition of any Collateral to any Person other
than the Borrower or any Subsidiary Loan Party that does not violate any Secured
Instrument, the Secured Parties agree that any Liens on such Collateral created
pursuant to the Security Documents will be released upon the delivery of
evidence satisfactory to the Collateral Agent that such sale, transfer or
disposition (and the release of such Liens and, if applicable, any guarantee of
the Obligations) is in compliance with the requirements of each Secured
Instrument (including a certificate from a Financial Officer to such effect). In
the event any such sale, transfer or disposition to a Person other than the
Parent or any subsidiary thereof (including the Borrower or any Subsidiary Loan
Party) shall be of 100% of the Equity Interests of a Subsidiary Loan Party, the
Secured Parties hereby authorize the Collateral Agent upon the delivery of such
evidence to release such Subsidiary and its assets from its obligations under
and the Liens created by the Support Documents and to execute amendments,
releases and other documents in form and substance satisfactory to the
Collateral Agent confirming such release.
(b) Collateral may be released in connection with the exercise of any
rights, powers or remedies by the Collateral Agent pursuant to and in accordance
with Section 4.02 and such release shall not require any approval under this
Section.
(c) The Secured Parties hereby authorize the Collateral Agent to execute
releases and other documents in form and substance satisfactory to the
Collateral Agent in respect of any release of Collateral permitted under this
Section.
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SECTION 9.04. Additional Collateral. Each of the Secured Parties hereby
covenants and agrees that it (a) will not accept any Guarantee of any of the
Obligations by any Person unless such Person's Guarantee is provided pursuant to
the Guarantee Agreement or otherwise Guarantees the payment of all the
Obligations on a pari passu basis and (b) will not take any security interest in
or Lien on or assignment of any assets to secure any of the Obligations unless
such security interest or Lien or assignment is granted to the Collateral Agent
to secure the payment of all the Obligations on a pari passu basis pursuant to
an Additional Security Document; provided that the foregoing shall not apply to
any insurance or other credit support acquired by a Secured Party at its own
expense from a Person (other than any Loan Party or an Affiliate thereof) with
respect to the Obligations.
SECTION 9.05. Purchase of Collateral. Any Secured Party may purchase
Collateral at any public sale of such Collateral pursuant to any of the Security
Documents and to the extent, but only to the extent, approved by the Required
Secured Parties (determined for this purpose without giving effect to the
Obligations owed to the Secured Party that is making such purchase, unless it is
the only Holder at the time) may make payment on account thereof by using any
Obligation then due and payable to such Secured Party from the Person which
granted a security interest in such Collateral as a credit against the purchase
price.
SECTION 9.06. Further Assurances, etc. Each party hereto shall execute
and deliver such other documents and instruments, in form and substance
reasonably satisfactory to the other parties hereto, and shall take such other
action, in each case as any other party hereto may reasonably have requested (at
the cost and expense of the Borrower which agrees to pay such costs and
expenses), to effectuate and carry out the provisions of this Agreement and the
other Support Documents, including by recording or filing in such places as the
requesting party may deem
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desirable, this Agreement or such other documents or instruments.
ARTICLE X
Benefit of Agreement
This Agreement is being executed and delivered by the Persons whose
names appear on the signature pages below and by such other Persons as become
parties hereto by the execution and delivery of a Permitted Additional
Obligations Designation pursuant to Section 2.01, but shall benefit, in addition
to such Persons, each other Secured Party represented by a Representative
(including the Lenders). Notwithstanding the foregoing, it is expressly
understood that the entitlement of each such other Secured Party to the benefits
of this Agreement and of the Support Documents is subject to the terms and
conditions of this Agreement and is expressly conditioned on the observance by
such Secured Party of such terms and conditions. Without limiting the foregoing,
the Collateral Agent may (but shall not be required to), as a condition to
making any distribution hereunder to which any such Secured Party would be
entitled, require that such Secured Party execute and deliver to the Collateral
Agent an acknowledgment of and consent to all the provisions of this Agreement
(specifically including the provisions of Section 5.06); provided that the
failure to request or obtain any such acknowledgment or consent shall not affect
any of the obligations of such Secured Party hereunder.
ARTICLE XI
Miscellaneous
SECTION 11.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as
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follows:
(a) if to the Borrower, to it at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of President (Telecopy No. (619)
882-6010);
(b) if to the Collateral Agent, to it at [ ], Attention of [ ]
(Telecopy No. [ ]);
(c) if to the Administrative Agent, to it at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention of Assistant Treasurer-Project
Finance (Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇); and
(d) if to any other Secured Party, to it at its address (or
telecopy number) set forth in the applicable Permitted Additional
Obligation Designation.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 11.02. Waivers; Amendments. (a) No failure or delay by the
Collateral Agent in exercising any right or power hereunder or under any other
Support Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Collateral Agent hereunder and under the other Support
Documents are cumulative and are not exclusive of any rights or remedies that it
would otherwise have. No waiver of any provision of any Support Document or
consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or
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consent shall be effective only in the specific instance and for the purpose for
which given.
(b) Neither this Agreement nor any other Support Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Representatives and/or Unrepresented
Holders representing the Required Committed Secured Parties (or, at any time
when a Notice of Enforcement is in effect, the Required Secured Parties) or, in
the case of any other Support Document, pursuant to an agreement or agreements
in writing entered into by the Collateral Agent and the Loan Party or Loan
Parties that are parties thereto with the consent of the Required Committed
Secured Parties (or, at any time when a Notice of Enforcement is in effect, the
Required Secured Parties); provided that no such agreement shall (i) adversely
affect any of the Collateral Agent's rights, immunities or rights to
indemnification hereunder or under any Support Document or expand its duties
hereunder or under any Support Document, without the prior written consent of
the Collateral Agent, (ii) modify any provision hereof which is intended to
provide for the equal and ratable security of all Obligations without the prior
written consent of all Secured Parties, (iii) release all or any substantial
part of the Collateral from the Liens of the Security Documents (except as
expressly provided in Section 9.03), without the prior written consent of each
Secured Party, (iv) release any Subsidiary Loan Party from its Guarantee under
the Guarantee Agreement (except as expressly provided in Section 9.03) or limit
or condition its obligations thereunder, without the prior written consent of
each Secured Party, or (v) change the definitions of "Credit Facility
Obligations", "Obligations", "Permitted Additional Obligations", "Required
Secured Parties", "Required Committed Secured Parties" or this Section or
Section 9.03 without the prior written consent of each Secured Party.
Notwithstanding the foregoing, the Collateral Agent and the Borrower and, in the
case of the Guarantee Agreement, any
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guarantor party to the Guarantee Agreement, may enter into one or more
agreements supplemental to the applicable Support Documents, in form and
substance satisfactory to the Collateral Agent, to add any guarantor of the
Obligations or any grantor to any Security Document.
SECTION 11.03. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 11.04. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 11.05. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Support Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that
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a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Support Document shall
affect any right that the Collateral Agent or any Secured Party may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Support Document against the Borrower or their properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Support Document in
any court referred to in paragraph (b) of this Section. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 11.01. Nothing in this
Agreement or any other Support Document will affect the right of any party to
this Agreement to serve process in any other manner permitted by law.
SECTION 11.06. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER SUPPORT DOCUMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
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THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 11.07. Headings. Article and Section headings used herein are
for convenience of reference only, are not part of this Agreement and shall not
affect the construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION 11.08. Successors and Assigns. (a) Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party (including, in the case of any
Secured Party, each transferee or assignee of Obligations held by it).
(b) The Borrower shall not assign or delegate any of its rights or
duties hereunder or any of its interest herein without the prior written consent
of each Secured Party, and any purported assignment or delegation in
contravention of this paragraph shall be void.
SECTION 11.09. Termination. This Agreement shall automatically terminate
when (i) the Liens and security interests granted under the Security Documents
have terminated and (ii) the Collateral has been released and the Obligations
have been indefeasibly paid and performed in full and all Secured Instrument
Commitments shall have terminated; provided that the provisions of Section 7.02
shall not be affected by any such termination.
SECTION 11.10. Complete Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior representations, negotiations, writings, memoranda and
agreements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
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CRICKET WIRELESS
COMMUNICATIONS, INC.,
by
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Collateral Agent,
by
Name:
Title:
LUCENT TECHNOLOGIES INC., as
Administrative Agent,
by
Name:
Title:
EXHIBIT A
FORM OF
PERMITTED ADDITIONAL OBLIGATIONS DESIGNATION
[Date]
To: [_________], as Collateral Agent
Re: Collateral Agency and Intercreditor Agreement, dated as of September 17,
1999, among CRICKET WIRELESS COMMUNICATIONS, INC., STATE STREET BANK AND
TRUST
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COMPANY, as Collateral Agent, and the Representatives and Unrepresented
Holders referred to therein (the "Collateral Agency and Intercreditor
Agreement").
Reference is hereby made to the Collateral Agency and Intercreditor
Agreement. Capitalized terms which are defined in the Collateral Agency and
Intercreditor Agreement are used herein as therein defined.
In accordance with Section 2.1 of the Collateral Agency and
Intercreditor Agreement, the following Indebtedness for borrowed money of the
Borrower are hereby added as Permitted Additional Obligations thereunder.
[DESCRIBE INDEBTEDNESS]
Attached hereto is a true and complete copy of each agreement (together with all
schedules, exhibits, annexes, appendices and other attachments thereto),
constituting the applicable Secured Instruments relating to such Permitted
Additional Obligations.
The undersigned is [the Secured Party] [the Representative of the
Secured Parties] in respect of such Permitted Additional Obligations and hereby
acknowledges receipt of a copy of the Collateral Agency and Intercreditor
Agreement. [The undersigned agrees that, upon execution and delivery hereof, it
shall be a party to the Collateral Agency and Intercreditor Agent and shall have
all the rights and obligations of a Secured Party under the Collateral Agency
and Intercreditor Agreement in accordance with the terms thereof.] [The
undersigned represents that it has been appointed as the Representative under
the Secured Instruments referred to above on behalf of the Holders thereunder,
with the power to become a party to the Collateral Agency and Intercreditor
Agreement on behalf of such Holders, and by the undersigned's execution and
delivery hereof, each such Holder shall become a party to the Collateral Agency
and Intercreditor Agreement and shall
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have all the rights and obligations of a Secured Party under the Collateral
Agency and Intercreditor Agreement in accordance with the terms thereof].
All communications and notices under the Collateral Agency and
Intercreditor Agreement to the [Secured Party] [Representative and the Holders
under the Secured Instruments referred to above] shall be given to such Person
at the address set forth on Schedule I hereto.
[_____________]
by
Name:
Title:
[Secured Party] [Representative]
by
Name:
Title:
CRICKET WIRELESS COMMUNICATIONS, INC.,
by
Name:
Title:
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SCHEDULE I
ADDRESS[ES] OF
[SECURED PARTY] [REPRESENTATIVE
AND SECURED PARTIES]