Exhibit 10.10
AMENDED AND RESTATED
LOAN AGREEMENT
DATED AS OF MARCH 31, 1999
BY AND AMONG
TRITEL HOLDING CORP.,
AS BORROWER;
TRITEL, INC.,
AS PARENT;
THE FINANCIAL INSTITUTIONS SIGNATORY HERETO,
AS LENDERS,
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT FOR THE LENDERS
POWELL, GOLDSTEIN, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
ATLANTA, GEORGIA
TABLE OF CONTENTS
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Page
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ARTICLE 1 Definitions..............................................2
Section 1.1 Defined Terms............................................2
Section 1.2 Interpretation..........................................27
ARTICLE 2 Credit Facilities and Letters of Credit.................27
Section 2.1 Commitments and Letters of Credit.......................27
Section 2.2 Manner of Borrower and Disbursement.....................28
Section 2.3 Interest................................................31
Section 2.4 Fees....................................................33
Section 2.5 Mandatory Commitment Reductions.........................34
Section 2.6 Voluntary Commitment Reductions.........................36
Section 2.7 Prepayments and Repayments..............................37
Section 2.8 Prepayment Fee..........................................40
Section 2.9 Notes; Loan Accounts....................................40
Section 2.10 Manner of Payment.......................................41
Section 2.11 Reimbursement...........................................42
Section 2.12 Pro Rata Treatment......................................43
Section 2.13 Capital Adequacy........................................43
Section 2.14 Lender Tax Forms........................................44
Section 2.15 Letters of Credit.......................................45
ARTICLE 3 Conditions Precedent....................................50
Section 3.1 Conditions Precedent to Effectiveness of Agreement......50
Section 3.2 Conditions Precedent to Each Advance....................52
Section 3.3 Conditions Precedent to Issuance of Letters of Credit...53
ARTICLE 4 Representations and Warranties..........................54
Section 4.1 Representations and Warranties..........................54
Section 4.2 Survival of Representations and Warranties..............61
ARTICLE 5 General Covenants.......................................62
Section 5.1 Preservation of Existence and Similar Matters...........62
Section 5.2 Business; Compliance with Applicable Law................62
Section 5.3 Maintenance of Properties...............................62
Section 5.4 Accounting Methods and Financial Records................63
Section 5.5 Insurance...............................................63
Section 5.6 Payment of Taxes and Claims.............................64
Section 5.7 Compliance with ERISA...................................64
Section 5.8 Visits and Inspections..................................66
Section 5.9 Payment of Indebtedness; Loans..........................66
Section 5.10 Use of Proceeds.........................................66
Section 5.11 Indemnity...............................................66
Section 5.12 Interest Rate Hedging...................................67
Section 5.13 Covenants Regarding Formation of Subsidiaries
and Acquisitions........................................67
Section 5.14 Payment of Wages........................................68
Section 5.15 Further Assurances......................................68
Section 5.16 License Subs............................................69
Section 5.17 Business of the Parent; Immediate Contributions
to the Borrower.........................................69
Section 5.18 Year 2000 Compliance....................................69
(i)
Section 5.19 Bidding Company Documentation...........................69
Section 5.20 The Bid Equity Commitments..............................70
ARTICLE 6 Information Covenants...................................70
Section 6.1 Quarterly Financial Statements and Information..........70
Section 6.2 Annual Financial Statements and Information.............71
Section 6.3 Performance Certificates................................71
Section 6.4 Copies of Other Reports.................................72
Section 6.5 Notice of Litigation and Other Matters..................73
ARTICLE 7 Negative Covenants......................................74
Section 7.1 Indebtedness of the Parent, the Borrower and
the Borrower's Subsidiaries.............................74
Section 7.2 Limitation on Liens.....................................75
Section 7.3 Amendment and Waiver....................................75
Section 7.4 Liquidation, Merger or Disposition of Assets............76
Section 7.5 Limitation on Guaranties................................76
Section 7.6 Investments and Acquisitions............................77
Section 7.7 Limitation on Distributions.............................79
Section 7.8 Senior Debt Capitalization Ratio........................79
Section 7.9 Total Debt Capitalization Ratio.........................79
Section 7.10 Minimum Required Covered POPs...........................79
Section 7.11 Minimum Subscribers.....................................80
Section 7.12 Aggregate Service Revenue...............................81
Section 7.13 Maximum Capital Expenditures............................81
Section 7.14 Total Leverage Ratio....................................82
Section 7.15 Senior Leverage Ratio...................................83
Section 7.16 Fixed Charges Coverage Ratio............................83
Section 7.17 Interest Coverage Ratio.................................84
Section 7.18 Affiliate Transactions..................................84
Section 7.19 Real Estate.............................................84
Section 7.20 ERISA Liabilities.......................................85
Section 7.21 No Limitation on Upstream Dividends by Subsidiaries.....85
ARTICLE 8 Default.................................................85
Section 8.1 Events of Default.......................................85
Section 8.2 Remedies................................................88
Section 8.3 Payments Subsequent to Declaration of Event
of Default..............................................91
ARTICLE 9 The Administrative Agent................................91
Section 9.1 Appointment and Authorization...........................91
Section 9.2 Interest Holders........................................91
Section 9.3 Consultation with Counsel...............................92
Section 9.4 Documents...............................................92
Section 9.5 Administrative Agent and Affiliates.....................92
Section 9.6 Responsibility of the Administrative Agent and
the Issuing Bank........................................92
Section 9.7 Security Documents......................................93
Section 9.8 Action by the Administrative Agent and the
Issuing Bank............................................93
Section 9.9 Notice of Default or Event of Default...................93
Section 9.10 Responsibility Disclaimed...............................94
Section 9.11 Indemnification.........................................94
Section 9.12 Credit Decision.........................................95
(ii)
Section 9.13 Successor Administrative Agent or Issuing Bank..........95
Section 9.14 Collateral Actions......................................96
Section 9.15 Delegation of Duties....................................96
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances...96
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair.....96
Section 10.2 Illegality..............................................96
Section 10.3 Increased Costs.........................................97
Section 10.4 Effect On Other Advances................................98
Section 10.5 Claims for Increased Costs and Taxes....................99
ARTICLE 11 Miscellaneous...........................................99
Section 11.1 Notices.................................................99
Section 11.2 Expenses...............................................101
Section 11.3 Waivers................................................101
Section 11.4 Set-Off................................................102
Section 11.5 Assignment.............................................102
Section 11.6 Accounting Principles..................................105
Section 11.7 Counterparts...........................................106
Section 11.8 Governing Law..........................................106
Section 11.9 Severability...........................................106
Section 11.10 Interest...............................................106
Section 11.11 Table of Contents and Headings.........................107
Section 11.12 Amendment and Waiver...................................107
Section 11.13 Entire Agreement.......................................108
Section 11.14 Other Relationships....................................108
Section 11.15 Directly or Indirectly.................................108
Section 11.16 Reliance on and Survival of Various Provisions.........108
Section 11.17 Senior Debt............................................109
Section 11.18 Obligations Several....................................109
Section 11.19 Confidentiality........................................109
ARTICLE 12 Waiver of Jury Trial...................................109
Section 12.1 Waiver of Jury Trial...................................109
(iii)
EXHIBITS
Exhibit A - Form of Borrower's Pledge Agreement
Exhibit B - Form of Borrower's Security Agreement
Exhibit C-1 - Form of Revolving Loan Note
Exhibit C-2 - Form of Term Loan A Note
Exhibit C-3 - Form of Term Loan B Note
Exhibit D - Form of Certificate of Financial Condition
Exhibit E - Form of Performance Certificate
Exhibit F - Form of Request for Advance
Exhibit G - Form of Use of Proceeds Letter
Exhibit H - Form of Borrower's Loan Certificate
Exhibit I - Form of Subsidiary Loan Certificate
Exhibit J - Form of Subsidiary Security Agreement
Exhibit K - Form of Subsidiary Guaranty
Exhibit L - Form of Subsidiary Pledge Agreement
Exhibit M - Form of Assignment and Assumption Agreement
Exhibit N - Form of Parent Pledge Agreement
Exhibit O - Form of Request for Issuance of Letter of Credit
Exhibit P - Form of Parent Guaranty
SCHEDULES
Schedule 1 - Licenses and License Subs
Schedule 2 - Subsidiaries
Schedule 3 - Exceptions to Representations and Warranties
Schedule 4 - Litigation
Schedule 5 - Agreements with Affiliates
Schedule 6 - Indebtedness
Schedule 7 - Liens
Schedule 8 - Insurance
Schedule 9 - Commitment Ratios and Notice Addresses
(iv)
AMENDED AND RESTATED
LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT is entered into as of this
31st day of March, 1999 by and among TRITEL, INC., a Delaware corporation (the
"Parent"), TRITEL HOLDING CORP., a Delaware corporation (the "Borrower"), THE
FINANCIAL INSTITUTIONS SIGNATORY HERETO (the "Lenders"), and TORONTO DOMINION
(TEXAS), INC., as administrative agent (the "Administrative Agent") for itself
and on behalf of the Lenders and the Issuing Bank (as defined below),
W I T N E S S E T H:
WHEREAS, the Parent, the Borrower, the Administrative Agent and certain
of the Lenders are all parties to that certain Loan Agreement dated as of
January 7, 1999 (the "Prior Loan Agreement"); and
WHEREAS, the Parent and the Borrower have requested that the
Administrative Agent and the Lenders consent to certain amendments to the Prior
Loan Agreement, as more fully set forth in this Amended and Restated Loan
Agreement; and
WHEREAS, the Administrative Agent and the Lenders have agreed to amend
and restate the Prior Loan Agreement in its entirety subject to the conditions
and on the terms set forth herein; and
WHEREAS, the Parent and the Borrower acknowledge and agree that the
Security Interest (as defined in the Prior Loan Agreement) granted to the
Administrative Agent, for itself and on behalf of the Lenders pursuant to the
Prior Loan Agreement and the Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith shall remain outstanding and in full
force and effect in accordance with the Prior Loan Agreement and shall continue
to secure the Obligations (as defined herein); and
WHEREAS, the Parent and the Borrower acknowledge and agree that (i) the
Obligations (as defined herein) represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection with
the Prior Loan Agreement and the other Loan Documents (as defined in the Prior
Loan Agreement) executed in connection therewith; (ii) the parties hereto intend
that the Security Documents (as defined in the Prior Loan Agreement) executed in
connection with the Prior Loan Agreement and the collateral pledged thereunder
shall secure, without interruption or impairment of any kind, all existing
Indebtedness under the Prior Loan Agreement and the other Loan Documents (as
defined in the Prior Loan Agreement) executed in connection therewith as so
amended, restated, restructured, renewed, extended, consolidated and modified
hereunder, together with all other Obligations hereunder; (iii) all Liens
evidenced by the Security Documents (as defined in the Prior Loan Agreement)
executed in connection with
the Prior Loan Agreement are hereby ratified, confirmed and continued; and (iv)
the Loan Documents (as defined herein) are intended to restate, renew, extend,
consolidate, amend and modify the Prior Loan Agreement and the other Loan
Documents (as defined in the Prior Loan Agreement) executed in connection
therewith; and
WHEREAS, the parties hereto intend that (i) the provisions of the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith, to the extent restated, renewed,
extended, consolidated, amended and modified hereby, are hereby superseded and
replaced by the provisions hereof and of the Loan Documents (as defined herein):
and (ii) the Notes (as hereinafter defined) amend, renew, extend, modify,
replace, are substituted for and supersede in their entirety, but do not
extinguish the indebtedness arising under, the promissory notes issued pursuant
to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby agree as follows:
ARTICLE 1 Definitions
Section 1.1 Defined Terms
For the purposes of this Agreement:
"Acquisition" shall mean (whether by purchase, lease, exchange,
issuance of stock or other equity or debt securities, merger, reorganization or
any other method) (i) any acquisition by the Borrower or any of its Subsidiaries
of any other Person, which Person shall then become consolidated with the
Borrower or any such Subsidiary in accordance with GAAP or (ii) any acquisition
by the Borrower or any of its Subsidiaries of all or any substantial part of the
assets of any other Person.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., in
its capacity as Administrative Agent for the Lenders and the Issuing Bank, or
any successor Administrative Agent appointed pursuant to Section 9.13 hereof.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or
such other office as may be designated pursuant to the provisions of Section
11.1 hereof.
"Advance" shall mean amounts advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
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"Affected Lender" shall have the meaning ascribed thereto in Section
10.5 hereof.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For purposes of this definition, "control" when used with
respect to any Person includes, without limitation, the direct or indirect
beneficial ownership of more than ten percent (10%) of the voting securities or
voting equity of such Person or the power to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise.
"Affiliated Successor" shall mean any Person which is an "Affiliated
Successor" as defined in the Stockholders Agreement and as permitted under
Sections 4.1(c) and (d) of the Stockholders Agreement.
"Agreement" shall mean this Amended and Restated Loan Agreement,
together with all Exhibits and Schedules hereto.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Aggregate Bid License Purchase Price" shall mean the sum of Bid
License Purchase Prices for all Bid Licenses purchased, or committed to be
purchased, by the Borrower or any of the Borrower's Subsidiaries from the
Bidding Company pursuant to the Bidding Company Documentation.
"Aggregate Service Revenue" shall mean, for any period, all service
revenues, including, without limitation, subscriber revenues, toll revenues,
roaming revenues, wholesale service revenues and long-distance revenues, of the
Borrower and its Subsidiaries for such period.
"Annualized Operating Cash Flow" shall mean the product of (a)
Operating Cash Flow for the most recently completed two (2) fiscal quarter
period times (b) two (2).
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limiting
the foregoing, the Licenses, the Communications Act and all Environmental Laws,
and all orders, decisions, judgments and decrees of all courts and arbitrators
in proceedings or actions to which the Person in question is a party or by which
it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and Eurodollar Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Applicable Prepayment Fee" shall mean that fee payable upon the
prepayment of any portion of Term Loan B, calculated based upon a percentage of
the amount of such payment, in accordance with Section 2.8 hereof.
3
"Approved Fund" shall mean, with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Arranging Agents" shall mean, collectively, TD Securities (USA) Inc.,
Barclays Bank PLC and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, in their capacity
as Arranging Agents; and "Arranging Agent" shall mean any one of the foregoing
Arranging Agents.
"Assignment of Rights" shall mean that certain Assignment of Rights
dated as of January 7, 1999 by and between the Parent and the Administrative
Agent.
"AT&T" shall mean AT&T Wireless PCS Inc., a Delaware corporation.
"Auction" shall mean the re-auction for the sale of certain PCS
Licenses in the ▇-▇▇▇▇▇, ▇-▇▇▇▇▇, ▇-▇▇▇▇▇ and F-Block conducted by the FCC as
set forth in parts 1 and 24 of Title 47 of the Code of Federal Regulations
commencing on or about March 23, 1999.
"Authorized Signatory" shall mean such senior personnel of a Person as
may be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
"Available Letter of Credit Commitment" shall mean, at any time, the
lesser of (a)(i) $10,000,000.00, minus (ii) all Letter of Credit Obligations
then outstanding, and (b) the Available Revolving Loan Commitment, but in no
event may the Available Letter of Credit Commitment be less than $0.00.
"Available Revolving Loan Commitment" shall mean, as of any date, the
difference between (a) the Revolving Loan Commitment in effect on such date and
(b) the sum of (i) the Revolving Loans then outstanding and (ii) the aggregate
amount of all Letter of Credit Obligations then outstanding.
"Available Term Loan A Commitment" shall mean, as of any date, the
difference between (a) the Term Loan A Commitment on such date and (b) the Term
Loan A then outstanding.
"Base Rate" shall mean, at any time, the greater of: (a) the rate of
interest adopted by The Toronto-Dominion Bank, New York Branch as its reference
rate for the determination of interest rates for loans of varying maturities in
United States dollars to United States residents of varying degrees of
creditworthiness and being quoted at such time by such bank as its "prime rate"
or "base rate"; or (b) the sum of (i) the Federal Funds Rate and (ii) one-half
of one percent (0.50%) per annum. The Base Rate is not necessarily the lowest
rate of interest charged to borrowers of The Toronto-Dominion Bank, New York
Branch.
"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as
4
a Base Rate Advance or is reborrowed as a Base Rate Advance, in accordance with
the provisions of Section 2.2(b) hereof, and which shall be in a principal
amount of at least $1,000,000, and in an integral multiple of $500,000.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of
(a) the Base Rate and (b) the Applicable Margin. The Base Rate Basis shall be
adjusted automatically as of the opening of business on the Business Day of each
change in the Base Rate to account for such change, and shall also be changed to
reflect changes in the Applicable Margin in accordance with Section 2.3(f)
hereof.
"Bidding Company" shall mean ABC Wireless Corp. L.L.C., a Delaware
limited liability company formed by ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
for purposes of bidding in the Auction.
"Bidding Company Documentation" shall mean, collectively, the Deposit
Loan Note, that certain Business Plan and Bidding Arrangements agreement, that
certain Security Agreement securing the obligations of the Bidding Company under
the Deposit Loan Note, that certain Guaranty and Pledge Agreement by the members
of the Bidding Company securing the obligations of the Bidding Company under the
Deposit Loan Note, that certain Closing Agreement and all such other agreements,
instruments and other writings in connection therewith or otherwise evidencing
an agreement by and among the Borrower, the Bidding Company and any other
Persons parties to any of the foregoing concerning the Auction and/or the Bid
Licenses; in each case, which shall be in form and substance reasonably
satisfactory to the Administrative Agent.
"Bid Equity Commitments" shall mean the aggregate sum of (a)
irrevocable binding but unfunded commitments to purchase additional Capital
Stock of the Parent (other than commitments required to be contributed to the
Parent pursuant to the Securities Purchase Agreement) by Persons (i) owning
Capital Stock of the Parent or (ii) otherwise reasonably acceptable to the
Administrative Agent and (b) irrevocable but unfunded commitments to make
unsecured subordinated loans to the Parent by Persons (i) owning Capital Stock
of the Parent or (ii) otherwise reasonably acceptable to the Administrative
Agent; in either case, which shall be used to fund a portion of the aggregate
Bid License Purchase Price and which shall be on terms and conditions and in
form and substance reasonably satisfactory to the Administrative Agent.
"Bid Equity Commitments Documentation" shall mean, collectively, all
documents, agreements, instruments and other writings evidencing the Bid Equity
Commitments, which shall be in form and substance reasonably satisfactory to the
Administrative Agent.
"Bid Licenses" shall mean, collectively, those certain PCS Licenses in
the C-Block and F-Block available for purchase at the Auction covering the
geographic area for which the Borrower or its Subsidiaries have, as of March 1,
1999, Licenses to provide wireless communications services.
5
"Bid License Purchase Price" shall mean, with respect to each Bid
License purchased, or committed to be purchased, by the Borrower and/or one or
more of the Borrower's Subsidiaries pursuant to the Bidding Company
Documentation the aggregate total purchase price paid, or committed to be paid,
for such Bid Licenses.
"Board of Directors" shall mean, when used with reference to the
Borrower, the board of directors of the Borrower.
"Borrower" shall mean Tritel Holding Corp., a Delaware corporation and
a wholly-owned subsidiary of the Parent.
"Borrower's Pledge Agreements" shall mean, collectively, that certain
Borrower's Pledge Agreement dated as of January 7, 1999 between the Borrower and
the Administrative Agent, or any other similar agreement, each substantially in
the form of Exhibit A attached hereto.
"Borrower's Security Agreements" shall mean, collectively, that certain
Borrower's Security Agreement dated as of January 7, 1999 between the Borrower
and the Administrative Agent, or any other similar agreement, each substantially
in the form of Exhibit B attached hereto.
"BTA" shall mean a Basic Trading Area, as defined in 47 C.F.R
(section) 24.202.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
New York, New York and, with respect to any Eurodollar Advance, London, England,
as relevant to the determination to be made or the action to be taken.
"Capital Expenditures" shall mean, in respect of any Person,
expenditures for the purchase of tangible assets of long-term use which would be
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
"Capital Stock" shall mean, as applied to any Person, any capital stock
of such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease (or other similar arrangement)
which at the time would be required to be capitalized on the balance sheet of
such lessee in accordance with GAAP.
"Cash Equivalents" shall mean investments in (i) certificates of
deposit and other interest bearing deposits or accounts (including, without
limitation, money market accounts) with United States commercial banks
(including, without limitation, United States branches of foreign banks) having,
or whose parent corporation has, a combined capital and surplus of at least
$500,000,000, which mature within one (1) year from the date of investment, (ii)
obligations
6
issued or unconditionally guaranteed by the United States government, or issued
by an agency thereof and backed by the full faith and credit of the United
States government, which obligations mature within one (1)year from the date of
investment, (iii) direct obligations issued by any United States state or
political subdivision thereof, which mature within one (1) year from the date of
investment and have the highest rating obtainable from Standard & Poor's
Corporation or ▇▇▇▇▇'▇ Investors Service on the date of investment or (iv)
commercial paper which has the highest rating obtainable from Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc., or any successor, or ▇▇▇▇▇'▇
Investors Service, or any successor, on the date of investment.
"Cellular System" shall mean, as applied to any Person, a wireless
communication or PCS system constructed and operated in a BTA or MTA of such
Person, and shall include any cellular mobile radio telephone system, microwave
system or paging system operated in connection with (and in the same general
service area as) any of the foregoing systems.
"Certificate of Financial Condition" shall mean a certificate
substantially in the form of Exhibit D attached hereto signed by the chief
financial officer of the Borrower, together with any schedules, exhibits or
annexes appended thereto.
"Change of Control Event" shall mean the occurrence or existence of any
of the following: (a) any sale or other disposition by AT&T or TWR Cellular,
Inc. of any shares of Capital Stock of the Parent prior to January 7, 2002, such
that after giving effect thereto AT&T and TWR Cellular, Inc., collectively,
shall fail to own at least fifteen percent (15%) of the Capital Stock of the
Parent, other than any such sale or other disposition to an Affiliated
Successor; (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) other than the Parent,
Persons owing Capital Stock of the Parent on January 7, 1999 or any Affiliated
Successor, of Capital Stock representing more than twenty (20%) of the aggregate
ordinary voting power represented by the issued and outstanding Capital Stock of
either the Borrower or the Parent; (c) occupation of a majority of the seats
(other than vacant seats) on the board of directors of either the Parent or the
Borrower, by Persons who were not (i) nominated by the board of directors of the
Parent (in the case of the Parent's board) or the Borrower (in the case of the
Borrower's board), (ii) appointed by directors so nominated, or (iii) in the
case of the Parent, appointed by shareholders of the Parent who are or were
shareholders (or an Affiliated Successor of any such shareholder) of the Parent
on January 7, 1999; or (d) the acquisition of direct or indirect control of the
Borrower or the Parent by any Person (and its Affiliated Successors) owning
Capital Stock of the Parent on January 7, 1999. Notwithstanding the foregoing,
none of the following shall constitute a "Change of Control": (A) the sale by
AT&T or TWR Cellular, Inc. of all or any of its Capital Stock of the Borrower
subsequent to January 7, 2002; (B) the public sale by the Parent of newly issued
Capital Stock in a public offering; and (C) the dilution of AT&T's and TWR
Cellular, Inc.'s collective percentage of Capital Stock of the Parent as a
result of an issuance of Capital Stock by the Borrower.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act
of 1985 and
7
any amendments thereto.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind constituting
collateral for the Obligations under any of the Loan Documents.
"Commitments" shall mean, collectively, the Revolving Loan Commitment,
the Term Loan A Commitment and the Term Loan B Commitment; and "Commitment"
shall mean any one of the foregoing Commitments.
"Commitment Ratio" shall mean, with respect to any Lender for any
Commitment, the percentage equivalent of the ratio which such Lender's portion
of such Commitment bears to the aggregate amount of such Commitment (as each may
be adjusted from time to time as provided herein); and "Commitment Ratios" shall
mean, with respect to any Commitment, the Commitment Ratios of all of the
Lenders with respect to such Commitment. As of the Agreement Date, the
Commitment Ratios of the Lenders party to this Agreement are as set forth on
Schedule 9 attached hereto.
"Committed Equity" shall mean, collectively, the irrevocable binding
but unfunded commitments to purchase Capital Stock of the Parent pursuant to the
Securities Purchase Agreement.
"Communications Act" shall mean the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of the FCC
thereunder, all as the same may be in effect from time to time.
"Competitor of the Borrower" shall mean any Person primarily engaged in
the business of building, owning and operating a wireless communications network
covering POPs primarily throughout the south-central United States.
"Contributed Equity" shall mean, at any time or for any period, the
aggregate amount which shall have been received by the Parent prior to such time
or during such period as consideration for the issuance of Capital Stock of the
Parent and which is thereafter contributed to the Borrower, all as calculated in
accordance with GAAP.
"Covered POPs" shall mean, as of any date, the aggregate number of POPs
within each geographic area for which facilities owned or operated by the
Borrower or its Subsidiaries that provide service to such geographic area have
achieved substantial completion.
"Debt Service" shall mean, for any period, the amount of all principal
paid and Interest Expense of the Borrower and its Subsidiaries on a consolidated
basis in respect of Indebtedness for Money Borrowed of the Borrower and its
Subsidiaries (other than voluntary principal payments of the Revolving Loans or
the Term Loan A which are not required to be accompanied
8
by an identical reduction in the Revolving Loan Commitment or the Term Loan A
Commitment).
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"Defaulting Lender" shall have the meaning ascribed thereto in Section
2.2(e)(iv) hereof.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the Base Rate, (b) the Applicable Margin then applicable to Base Rate
Advances, and (c) two percent (2%).
"Deposit" shall mean the deposit of $7,500,000 by the Bidding Company
in an escrow account with the FCC in connection with Auction funded by the
Deposit Loan.
"Deposit Loan" shall mean the loan from the Borrower to the Bidding
Company evidenced by the Deposit Loan Note.
"Deposit Loan Note" shall mean that certain Promissory Note, dated as
of March 1, 1999, in the original principal amount of $7,500,000 made by the
Bidding Company in favor of the Borrower, and any extensions, renewals or
amendments to, or replacements of, the foregoing.
"Disqualifying Transaction" shall have the meaning ascribed thereto in
the Stockholders Agreement.
"Employee Pension Plan" shall mean any Plan which is (a) maintained by
the Borrower, any of its Subsidiaries or any ERISA Affiliate and (b) subject to
Part 3 of Title I of ERISA.
"Environmental Laws" shall mean, collectively, all applicable federal,
state or local laws, statutes, rules, regulations or ordinances, codes, common
law, consent agreements, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder relating to public health, safety or
the pollution or protection of the environment, including, without limitation,
those relating to releases, discharges, emissions, spills, leaching, or
disposals to air, water, land or ground water, to the withdrawal or use of
ground water, to the use, handling or disposal of polychlorinated biphenyls,
asbestos or urea formaldehyde, to the treatment, storage, disposal or management
of hazardous substances (including, without limitation, petroleum, crude oil or
any fraction thereof, or other hydrocarbons), pollutants or contaminants, to
exposure to toxic, hazardous or other controlled, prohibited, or regulated
substances, including, without limitation, any such provisions under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended (42 United StatesC. (section) 9601 et seq.), or the Resource
Conservation and Recovery Act of 1976, as amended (42 United StatesC. (section)
6901 et seq.).
"Ericsson" shall mean Ericsson, Inc.
9
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including, without limitation,
any Subsidiary or Affiliate of the Borrower, that is a member of any group of
organizations (within the meaning of Code Sections 414(b), (c), (m) or (o)) of
which the Borrower is a member.
"Eurodollar Advance" shall mean an Advance which the Borrower requests
to be made as a Eurodollar Advance or which is reborrowed as a Eurodollar
Advance, in accordance with the provisions of Section 2.2 hereof, and which
shall be in a principal amount of at least $1,000,000 and in an integral
multiple of $500,000.
"Eurodollar Basis" shall mean a simple per annum interest rate (rounded
upward, if necessary, to the nearest onehundredth of one percent (0.01%)) equal
to the sum of (a) the quotient of (i) the Eurodollar Rate divided by (ii) one
(1) minus the Eurodollar Reserve Percentage, if any, stated as a decimal, and
(b) the Applicable Margin. The Eurodollar Basis shall apply to Interest Periods
of one (1), two (2), three (3), six (6), nine (9) and twelve (12) months, and,
once determined, shall remain unchanged during the applicable Interest Period,
except for changes to reflect adjustments in the Eurodollar Reserve Percentage
and the Applicable Margin as adjusted pursuant to Section 2.3(f) hereof. The
Eurodollar Basis for any Eurodollar Advance shall be adjusted as of the date of
any change in the Eurodollar Reserve Percentage. The Borrower may not elect an
Interest Period in excess of six (6) months unless the Administrative Agent has
notified the Borrower that each of the Lenders (in such Lender's discretion) has
funds available to it for such Lender's portion of the proposed Advance which
are not required for other purposes, and that such funds are available to each
Lender at a rate (exclusive of reserves and other adjustments) at or below the
Eurodollar Rate for such proposed Advance and Interest Period.
"Eurodollar Rate" shall mean, for any Interest Period, the average of
the interest rates per annum at which deposits in United States Dollars for such
Interest Period are offered to The Toronto-Dominion Bank, New York Branch in the
Eurodollar market appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in dollars at approximately 11:00
a.m. (London, England time) two (2) Business Days before the first day of such
Interest Period, in an amount approximately equal to the principal amount of,
and for a length of time approximately equal to the Interest Period for, the
Eurodollar Advance sought by the Borrower. In the event that such rate is not
available at such time for any reason, then the "Eurodollar Rate" with respect
to such Eurodollar Advance for such Interest Period shall be the rate of
interest per annum at which dollar deposits in the aggregate principal amount of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds to prime banks in the London interbank market at approximately 11:00 a.m.
(London, England time) two (2) Business Days prior to the commencement of such
Interest Period.
10
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in Regulation D), whether or not any Lender
has any such Eurocurrency Liabilities subject to such reserve requirement at
that time.
"Event of Default" shall mean any of the events specified in Section
8.1, provided that any requirement for notice or lapse of time has been
satisfied without the event being corrected.
"Excess Cash Flow" shall mean, as of the end of any fiscal year of the
Borrower based on the audited financial statements provided under Section 6.2
hereof for such fiscal year, the excess, if any, without duplication, of (a) sum
of (i) Operating Cash Flow for such fiscal year, and (ii) any negative change in
the Borrower's working capital account during such fiscal year, minus (b) the
sum of the following: (i) Capital Expenditures by the Borrower and its
Subsidiaries during such fiscal year; (ii) Debt Service for such fiscal year;
(iii) cash taxes paid by the Borrower and its Subsidiaries during such fiscal
year; (iv) Restricted Payments or Restricted Purchases made during such fiscal
year; and (v) any positive change in the Borrower's working capital account
during such fiscal year; in each case, as determined in accordance with GAAP.
"Excluded Taxes" shall mean, with respect to the Administrative Agent
or any Lender, (a) income or franchise Taxes imposed on (or measured by) its Net
Income by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its applicable lending office is located
or any governmental authority of or in any of the foregoing (including, without
limitation, minimum Taxes and Taxes computed under alternative methods, the
principal one of which is based on or measured by net income), (b) any branch
profits Taxes imposed by the United States of America or any similar Tax imposed
by any other jurisdiction in which the Borrower is located or the Administrative
Agent or a Lender, as applicable, is organized or any governmental authority of
or in any of the foregoing, (c) in the case of a Lender that is not organized
under the laws of the United States, any State thereof or the District of
Columbia (a "Foreign Lender"), any withholding Tax that is in effect and would
apply to a payment to such Foreign Lender at the time such Foreign Lender
becomes a party to this Agreement (or designates a new lending office), (d) any
Taxes to the extent imposed by reason of a Lender or the Administrative Agent,
as applicable, engaging in activities in the jurisdiction imposing the Tax that
are unrelated to the transactions contemplated hereby and (e) any Tax that would
not have been imposed but for the failure of a Lender or the Administrative
Agent, as applicable, to comply with the certification requirements described in
Section 2.14.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"FCC Indebtedness" shall mean any Indebtedness of the Borrower, its
Subsidiaries or the Parent owed to the United States Treasury Department that is
incurred in connection with the
11
acquisition of any License.
"Federal Funds Rate" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"Fixed Charges" shall mean, for the Borrower and its Subsidiaries, on a
consolidated basis, as of any date, the sum of: (a) Debt Service; (b) cash taxes
paid by the Borrower and its Subsidiaries; (c) Capital Expenditures (excluding
assets purchased with the proceeds of obsolete, worn out or no longer useful
assets as permitted by Section 7.4(a) hereof) by the Borrower and its
Subsidiaries; and (d) Restricted Payments and Restricted Purchases made; in each
case for the most recently completed four (4) fiscal quarter period then ended,
and in each case as calculated in accordance with GAAP.
"Fixed Charges Coverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Annualized Operating Cash Flow to (b) Fixed
Charges.
"Foreign Lender" shall have the meaning ascribed thereto in the
definition of "Excluded Taxes" set forth in Section 1.1 hereof.
"Funded Debt" shall mean, as of the date of determination, the
aggregate amount of all Indebtedness for Money Borrowed of the Parent, the
Borrower and the Borrower's Subsidiaries which by its terms (a) matures more
than one (1) year after the date of determination or (b) matures within one (1)
year from the date of determination, but which is renewable or extendable at the
option of the applicable obligor to a date more than one (1) year from the date
of determination; in either case, including, without limitation, the Revolving
Loans.
"GAAP" shall mean, as in effect from time to time in the United States,
generally accepted accounting principles, consistently applied.
"Give-back Licenses" shall mean any License voluntarily terminated,
surrendered or otherwise cancelled by the Borrower or any of its Subsidiaries,
provided that, in connection with any such termination, surrender or other
cancellation, (a) the Borrower represents and warrants to the Administrative
Agent, the Lenders and the Issuing Bank that such termination, surrender or
other cancellation could not reasonably be expected to have a Materially Adverse
Effect, (b) the Borrower provides revised financial projections reflecting and
such other information relating to such termination, surrender or other
cancellation as may be reasonably requested by the Administrative Agent, and (c)
the Required Lenders shall consent in writing to such termination, surrender or
other cancellation, such consent not to be unreasonably withheld.
12
"Go-Positive Date" shall mean the date on which the Borrower's
Operating Cash Flow shall become greater than zero dollars ($0.00).
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of nonperformance) of all or any
part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
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
Persons 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 Capitalized 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 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.
"Indebtedness for Money Borrowed" shall mean, with respect to any
Person, Indebtedness for money borrowed and Indebtedness represented by notes
payable and drafts accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar instruments, all
Indebtedness upon which interest charges are customarily paid, all Capitalized
Lease Obligations, all reimbursement obligations with respect to outstanding
letters of credit, all Indebtedness issued or assumed as full or partial payment
for property or services (other than trade payables arising in the ordinary
course of business, but only if and so long as such accounts are payable on
customary trade terms), whether or not any such notes, drafts, obligations or
Indebtedness represent Indebtedness for money borrowed, and, without
duplication, Guaranties of any of the foregoing. For purposes of this
definition, interest which is accrued but not paid on the scheduled due date for
such interest shall be deemed Indebtedness for Money Borrowed.
13
"Indemnitee" shall have the meaning ascribed thereto in Section 5.11
hereof.
"Interest Coverage Ratio" shall mean, as of any date of determination,
the ratio of (a) Annualized Operating Cash Flow to (b) Interest Expense for the
most recently completed four (4) fiscal quarter period.
"Interest Expense" shall mean, for any period, all cash interest paid
(including imputed interest with respect to Capitalized Lease Obligations) with
respect to the Indebtedness for Money Borrowed of the Borrower and its
Subsidiaries on a consolidated basis during such period pursuant to the terms of
such Indebtedness for Money Borrowed, together with all fees paid in respect of
such Indebtedness for Money Borrowed during such period (but specifically
excluding fees paid during previous periods but amortized during the current
period in accordance with GAAP), calculated in accordance with GAAP.
"Interest Period" shall mean, (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on the
earlier of the last day of the calendar quarter in which such Advance is made
and the day such Advance is paid, provided, however, that if a Base Rate Advance
is made on the last day of any calendar quarter, it shall have an Interest
Period ending on, and its Payment Date shall be, the last day of the following
calendar quarter, and (b) in connection with any Eurodollar Advance, the term of
such Advance selected by the Borrower or otherwise determined in accordance with
this Agreement. Notwithstanding the foregoing, (i) any applicable Interest
Period which would otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day unless, with respect to Eurodollar
Advances only, such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (ii) any
applicable Interest Period, with respect to Eurodollar Advances only, which
begins on a day for which there is no numerically corresponding day in the
calendar month during which such Interest Period is to end shall (subject to
clause (i) above) end on the last day of such calendar month, and (iii) no
Interest Period shall extend beyond the Maturity Date, or such earlier date on
which the Borrower has any repayment obligations under Section 2.5 or 2.7
hereof. Interest shall be due and payable with respect to any Advance as
provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the Eurodollar
Basis, as appropriate.
"Interest Rate Hedge Agreements" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall also include, without limitation, interest rate swaps,
caps, floors, collars and similar arrangements.
"Issuing Bank" shall mean The Toronto-Dominion Bank, Houston Agency, as
issuer of
14
the Letters of Credit.
"known to the Borrower" or "to the knowledge of the Borrower" shall
mean known by or reasonably should have been known by the executive officers of
the Borrower (which shall include, without limitation, the chairman/president,
the chief executive officer, the chief financial officer, the chief operating
officer, the treasurer, the secretary and any in-house general counsel).
"Lenders" shall mean those financial institutions whose names appear as
"Lenders" on the signature pages to this Agreement, together with any assignees
thereof pursuant to Section 11.5 hereof; and "Lender" shall mean any one of the
foregoing Lenders.
"Letter of Credit Obligations" shall mean, at any time, the sum of (a)
an amount equal to the aggregate undrawn and unexpired amount (including the
amount to which any such Letter of Credit can be reinstated pursuant to the
terms hereof) of the then outstanding Letters of Credit and (b) an amount equal
to the aggregate drawn, but unreimbursed drawings on any Letters of Credit.
"Letter of Credit Reserve Account" shall mean any account maintained by
the Administrative Agent for the benefit of the Issuing Bank, the Administrative
Agent and the Lenders the proceeds of which shall be applied as provided in
Section 8.2(a) hereof.
"Letters of Credit" shall mean Standby Letters of Credit issued by the
Issuing Bank on behalf of the Borrower from time to time in accordance with the
terms hereof.
"Licenses" shall mean any broadband PCS license issued by the FCC in
connection with the operation of a Cellular System granted and held by the
Borrower or any of its Subsidiaries, all of which are listed as of the Agreement
Date on Schedule 1 hereto.
"License Subs" shall mean, collectively, NexCom, Inc., Clearcall, Inc.,
Global PCS, Inc., Clearwave, Inc., DigiNet PCS, Inc., DigiCom, Inc. and
DigiCall, Inc., each a Delaware corporation, and AirCom PCS, Inc. and QuinCom,
Inc., each an Alabama corporation and any other wholly-owned Subsidiary of the
Borrower designated as a License Sub by notice to the Administrative Agent, in
each case, the Capital Stock of which is pledged to the Administrative Agent
pursuant to a Borrower's Pledge Agreement or a Subsidiary Pledge Agreement, as
appropriate; and "License Sub" shall mean any one of the foregoing License Subs.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not ▇▇▇▇▇▇, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Security
Documents, all fee letters, all Requests for Advance, all Requests for Letters
of Credit, all Letters of Credit, all
15
Interest Rate Hedge Agreements between the Borrower or any Subsidiary, on the
one hand, and the Administrative Agent, the Lenders, or any of their Affiliates,
on the other hand, and all other documents and agreements executed or delivered
in connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, the amounts advanced by the Lenders
to the Borrower under the Commitments, not to exceed the aggregate amount of the
Commitments, and evidenced by the Notes.
"Management Agreement" shall mean the Management Agreement by and
between the Parent and Tritel Management, LLC in the form attached as Exhibit A
to the Securities Purchase Agreement.
"Margin Stock" shall have meaning ascribed thereto in Section 4.1(n)
hereof.
"Materially Adverse Effect" shall mean any material adverse effect upon
any of the following: (a) the business, assets, liabilities, financial
condition, results of operations, properties, or business prospects of the
Borrower and its Subsidiaries taken as a whole; (b) the binding nature, validity
or enforceability of this Agreement or any of the Notes; or (c) the ability of
the Borrower and its Subsidiaries taken as a whole to perform the payment
obligations or other material obligations under this Agreement or any other Loan
Document; in each case, when taken together with other such acts, omissions,
situations, statuses, events or undertakings; provided, however, that on or
after the date which is five (5) years from January 7, 1999, neither (x) the
nonrenewal of the Network License Agreement by AT&T Corp. nor (y) the
termination of the Network License Agreement by AT&T Corp. in accordance with
its terms as a result of a Disqualifying Transaction shall in and of itself be a
Materially Adverse Effect.
"Maturity Date" shall mean (a) the Revolving Loan Maturity Date, the
Term Loan A Maturity Date or the Term Loan B Maturity Date, as appropriate, or
(b) such earlier date as payment of the Obligations shall be due (whether by
acceleration, reduction of the Commitments to zero, or otherwise).
"Multiemployer Plan" shall mean a multiemployer pension plan as defined
in Section 3(37) of ERISA to which the Borrower, any of its Subsidiaries or any
ERISA Affiliate is or has been required to contribute subsequent to September
25, 1980.
"MTA" shall mean a Major Trading Area as defined in 47 C.F.R.
(section) 24.202.
"Necessary Authorizations" shall mean, collectively, all approvals and
licenses from, and all filings and registrations with, any governmental or other
regulatory authority, including, without limiting the foregoing, the Licenses
and all approvals, licenses, filings and registrations under the Communications
Act.
"Net Income" shall mean, for the Borrower and its Subsidiaries on a
consolidated basis
16
for any period, net income determined in accordance with GAAP.
"Net Proceeds (Asset Sales)" shall mean, with respect to any sale or
other disposition of assets by any Person, the difference between (a) the
aggregate amount of cash or Cash Equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Indebtedness for Money Borrowed or other obligations relating to
such properties or assets or received in any other noncash form) therefrom by
such Person, and (b) the sum of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability as a
consequence of such asset sale or other disposition, (ii) all payments made by
such Person or its Subsidiaries on any Indebtedness for Money Borrowed which is
secured by the assets subject to such asset sale or other disposition in
accordance with the terms of any Lien upon or with respect to such assets or
which must by the terms of such Lien, or in order to obtain a necessary consent
to such asset sale or other disposition or by Applicable Law, be repaid out of
the proceeds from such asset sale or other disposition, and (iii) a reasonable
reserve for the after-tax costs of any indemnification payments (fixed or
contingent) attributable to the seller's indemnities to the purchaser undertaken
by the Borrower or any of its Subsidiaries in connection with such asset sale or
other disposition.
"Net Proceeds (Capital Sales)" shall mean, with respect to any sale,
issuance or other disposition of any Indebtedness or any Capital Stock of the
Borrower or the Borrower's Subsidiaries by the Borrower or the Borrower's
Subsidiaries after January 7, 1999, the difference between (1) the aggregate
amount of cash or Cash Equivalents received in connection with the sale,
issuance or other disposition of such Indebtedness or such Capital Stock, and
(2) the aggregate amount of any reasonable and customary transaction costs
incurred in connection therewith, including, without limitation, all fees and
expenses of attorneys, accountants and other consultants, all underwriting or
placement agent fees, and fees and expenses of any trustee, registrar or
transfer agent.
"Network License Agreement" shall mean the Network Membership License
Agreement, dated the date hereof, by and between AT&T Corp. and the Parent.
"Non-U.S. Lender" shall have the meaning ascribed thereto in Section
2.9(a) hereof.
"Notes" shall mean, collectively, the Revolving Loan Notes, the Term
Loan A Notes and the Term Loan B Notes, and any other promissory notes issued by
the Borrower to evidence the Loans, and any extensions, renewals or amendments
to, or replacements of, the foregoing.
"Obligations" shall mean all payment and performance obligations of
every kind, nature and description of the Borrower, its Subsidiaries, and any
other obligors to the Lenders, the Administrative Agent or the Issuing Bank, or
any of them, under this Agreement and the other Loan Documents (including,
without limitation, any interest, fees and other charges on the Loans or
otherwise under the Loan Documents that would accrue but for the filing of a
bankruptcy
17
action with respect to the Borrower or any of its Subsidiaries, whether or not
such claim is allowed in such bankruptcy action and including Obligations to the
Administrative Agent, any of the Lenders, or the Issuing Bank, or any of their
Affiliates, under any Interest Rate Hedge Agreements) as they may be amended
from time to time, or as a result of making the Loans, whether such obligations
are direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, arising by operation of law or otherwise,
now existing or hereafter arising.
"Operating Cash Flow" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis for any fiscal quarter, the sum of (a) Net
Income for such quarter (after eliminating any extraordinary gains and losses),
and (b) to the extent deducted in determining Net Income, the sum of the
following for such period: (i) depreciation and amortization expense, (ii)
Interest Expense, (iii) tax expense and (iv) other non-cash charges, in each
case all as determined in accordance with GAAP. For purposes of determining each
of the Total Leverage Ratio and the Senior Leverage Ratio, if the Borrower or
any of its Subsidiaries acquires (or disposes of) Cellular Systems during a
fiscal period, "Operating Cash Flow" for that period shall be determined as if
the Cellular Systems so acquired (or disposed of) had been acquired (or disposed
of) on the first day of such fiscal period, and the operating results of any
acquired Cellular System for that portion of any fiscal period in which such
Cellular System was not owned by the Borrower or any of its Subsidiaries shall
be determined by reference to financial information prepared by the prior owners
thereof, subject to such adjustments as the Administrative Agent may require;
provided, however, that no material adjustments may be made without consent of
the Required Lenders.
"Ownership Interests" shall mean, with respect to any Person, the
Capital Stock, partnership interests, membership interests or other instruments
or securities evidencing ownership of such Person.
"Parent" shall mean Tritel, Inc., a Delaware corporation and the parent
company of the Borrower.
"Parent Guaranty Agreement" shall mean that certain Parent Guaranty
Agreement dated as of January 7, 1999 by and between the Parent and the
Administrative Agent, for itself and the Lenders, in substantially the form of
Exhibit P attached hereto.
"Parent Pledge Agreement" shall mean that certain Parent Pledge
Agreement dated as of January 7, 1999 by and between the Parent and the
Administrative Agent, for itself and the Lenders, in substantially the form of
Exhibit N attached hereto.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PCS" shall mean a personal communications service, as defined in 47
C.F.R. (section) 24.5.
18
"PCS Documents" shall mean the Securities Purchase Agreement and each
of the documents that is an exhibit schedule or other attachment thereto
(including, without limitation, the Network License Agreement, the Management
Agreement, the Resale Agreement (upon execution and delivery thereof), the
Stockholders' Agreement, and the Roaming Agreement).
"Performance Certificate" shall mean a certificate, substantially in
the form of Exhibit E attached hereto, signed by an Authorized Signatory of the
Borrower, together with any schedules, exhibits or annexes attached thereto
delivered pursuant to Section 6.3 hereof.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent or any Lender
given to secure the Obligations;
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on such Person's
books, but only so long as no foreclosure, distraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen incurred in the ordinary course of business for sums not yet overdue
by more than thirty (30) days or being diligently contested in good faith, if
reserves or appropriate provisions shall have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance, social
security obligations, assessments or government charges which are not overdue
more than sixty (60) days;
(e) Restrictions on the transfer of the Licenses or assets of the
Borrower or its Subsidiaries imposed by any of the Licenses as presently in
effect, by the Communications Act, including any rules or regulations
thereunder, or by comparable state legislation;
(f) Easements, rights-of-way, and other similar encumbrances on
the use of real property which do not materially interfere with the ordinary
conduct of the business of such Person or the use of such property;
(g) Liens reflected by Uniform Commercial Code financing
statements filed in respect of Capitalized Lease Obligations permitted pursuant
to Section 7.1(f) hereof and true leases of the Borrower or any of its
Subsidiaries;
(h) Deposits to secure the performance of bids, trade contracts,
leases,
19
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(i) Liens of attachments, judgments or awards in respect of
judgments that do not constitute an Event of Default under Section 8.1(h);
(j) Liens existing on the Agreement Date as set forth on Schedule
7 attached hereto;
(k) Liens on goods (and the documents of title related thereto)
the purchase price of which is financed by a documentary letter of credit issued
for the account of the Borrower or its Subsidiaries, provided that such Lien
secures only the obligations of the Borrower or such Subsidiaries in respect of
such letter of credit; and
(l) Liens securing Indebtedness permitted pursuant to Section
7.1(i) hereof, provided that such Liens only attach to the Licenses financed by
the FCC Indebtedness.
"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of any Person or any affiliate of such Person.
"POPs" shall mean, as of any calculation date, with respect to any BTA
or MTA, the population of such BTA or MTA as such number is set forth in the
most recent PCS Atlas and Data Guide published by ▇▇▇▇ ▇▇▇▇▇ Associates, Inc..
"Pre-receivership Period" shall mean the time period beginning on the
date of the first possession of the Cellular Systems by the Administrative Agent
(or the Lenders) and ending upon the earlier of (i) the taking of possession of
the systems by a receiver appointed by a court of competent jurisdiction or (ii)
the taking of possession of the systems by a trustee or by the Borrower as
debtor-in-possession following the entry of an order for relief in a case of the
Borrower pending under the United States Bankruptcy Code.
"Qualified Vendors" shall mean, collectively, Ericsson, Lucent
Technologies Inc. or any Affiliate of either of the foregoing Persons; and
"Qualified Vendor" shall mean any of the foregoing Qualified Vendors.
"Qualified Vendor Agreement" shall mean, collectively, (a) that certain
Acquisition Agreement between Tritel Communications, Inc. and Tritel Finance,
Inc., each a Delaware corporation, on the one hand, and Ericsson, on the other
hand, dated as of December 30, 1998 and (b) any other purchase agreement between
the Borrower and/or one or more of its
20
Subsidiaries, on the one hand, and a Qualified Vendor, on the other hand, in
each case, pursuant to which the Borrower and/or such Subsidiaries shall acquire
from Ericsson and/or such Qualified Vendor, as applicable, cellular equipment
and ancillary services required for the initial buildout of its or their
Cellular Systems, and which shall be in form and substance reasonably
satisfactory to the Administrative Agent.
"Register" shall have the meaning ascribed thereto in Section 11.5(g)
hereof.
"Registered Noteholder" shall mean each Non-U.S. Lender that holds a
Registered Note pursuant to Section 2.9(a) hereof or registers its Loans
pursuant to Section 11.5(g) hereof.
"Registered Notes" shall mean those certain Notes that have been issued
in registered form in accordance with Sections 2.9(a) and 11.5(g) hereof and
each of which bears the following legend: "This is a Registered Note, and this
Registered Note and the Loans evidenced hereby may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer on the Register and in compliance with all other requirements provided
for in the Loan Agreement."
"Regulations" shall have the meaning ascribed thereto in Section 4.1(n)
hereof.
"Replacement Lender" shall have the meaning ascribed thereto in Section
10.5 hereof.
"Reportable Event" shall mean, with respect to any Employee Pension
Plan, an event described in Section 4043(b) of ERISA.
"Request for Advance" shall mean a certificate designated as a "Request
for Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance hereunder, which shall be in substantially the form of Exhibit F
attached hereto, and shall, among other things, (i) specify the Commitment under
which such Advance is to be made, the date of the Advance, which shall be a
Business Day, the amount of the Advance, the type of Advance (Eurodollar or Base
Rate), and, with respect to Eurodollar Advances, the Interest Period selected by
the Borrower, (ii) state that there shall not exist a Default or Event of
Default as of the date of such Advance and after giving effect thereto and (iii)
provide calculations demonstrating compliance with Sections 7.8, 7.9, 7.10,
7.11, 7.12, 7.13, 7.14, 7.15, 7.16 and 7.17 hereof, after giving effect to the
proposed Advance, and the Applicable Margin related thereto.
"Request for Issuance of Letter of Credit" shall mean any certificate
signed by an Authorized Signatory of the Borrower requesting that the Issuing
Bank issue a Letter of Credit hereunder, which certificate shall be in
substantially the form of Exhibit O attached hereto and shall, among other
things, state (a) the stated amount of the Letter of Credit, (b) the effective
date for the issuance of the Letter of Credit (which shall be a Business Day),
(c) the date on which the Letter of Credit is to expire (which shall be a
Business Day), (d) the Person for whose benefit such Letter of Credit is to be
issued, (e) that the requirements of Section 3.3 hereof have been satisfied, and
(f) other relevant terms of such Letter of Credit.
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"Required Lenders" shall mean, collectively, Lenders the total of whose
Commitment Ratios equals or exceeds fifty-one percent (51%) of the Commitment
Ratios of all Lenders entitled to vote hereunder.
"Resale Agreement" shall mean, when executed and delivered, the Resale
Agreement by and between AT&T and the Parent in substantially the form of
Exhibit D to the Securities Purchase Agreement.
"Restricted Payment" shall mean (a) any direct or indirect
distribution, dividend or other payment to any Person (other than to the
Borrower or a Subsidiary of the Borrower) on account of any general or limited
partnership interest in, or shares of Capital Stock or other securities of, the
Borrower or any of its Subsidiaries (other than dividends payable solely in the
Capital Stock of such Person and stock splits), including, without limitation,
any direct or indirect distribution, dividend or other payment to any Person
(other than to the Borrower or a Subsidiary of the Borrower) on account of any
warrants or other rights or options to acquire shares of Capital Stock of the
Borrower or any of its Subsidiaries, (b) any payment of principal of, or
interest on, or payment into a sinking fund for the retirement of, or any
defeasance of Subordinated Debt, or (c) any management, consulting or similar
fees, or any interest thereon, payable by the Borrower or any of its
Subsidiaries to any of their respective Affiliates (other than such fees and
interest payable to the Borrower or any of its Subsidiaries).
"Restricted Purchase" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption, defeasance or other acquisition or
retirement of any general or limited partnership interest in, or shares of
Capital Stock of or other securities or Subordinated Debt or other Ownership
Interests of the Borrower or any of it's Subsidiaries, including, without
limitation, any warrants or other rights or options to acquire shares of Capital
Stock or other Ownership Interests of the Borrower or of any of its Subsidiaries
or any loan, advance, release or forgiveness of Indebtedness by the Borrower or
any of its Subsidiaries to any partner, shareholder or Affiliate (other than to
the Borrower or any of its Subsidiaries) of any such Person.
"Revolving Loan Commitment" shall mean the several obligations of the
Lenders to advance in an aggregate amount of up to $250,000,000 at any one time
outstanding, in accordance with their respective Commitment Ratios, to the
Borrower prior to the Revolving Loan Maturity Date pursuant to the terms hereof
and as such obligations may be reduced from time to time pursuant to the terms
hereof.
"Revolving Loan Maturity Date" shall mean June 30, 2007, or such
earlier date as payment of the remaining outstanding principal amount of the
Revolving Loans or of all remaining outstanding Obligations shall be due
(whether by acceleration or otherwise).
"Revolving Loan Notes" shall mean, collectively, those certain
revolving promissory notes in an aggregate original principal amount of the
Revolving Loan Commitment, and issued
22
to each of the Lenders by the Borrower with respect to the Revolving Loan
Commitment, each one substantially in the form of Exhibit C-1 attached hereto,
and any extensions, renewal or amendments to, or replacements of, the foregoing.
"Revolving Loans" shall mean, collectively, the amounts advanced by the
Lenders to the Borrower under the Revolving Loan Commitment, not to exceed the
amount of the Revolving Loan Commitment, and evidenced by the Revolving Loan
Notes.
"Roaming Agreement" shall mean the Intercarrier Roamer Service
Agreement by and between AT&T Wireless Services, Inc. and the Borrower in
substantially the form attached as Exhibit F to the Securities Purchase
Agreement.
"Securities Purchase Agreement" shall mean that certain Securities
Purchase Agreement between AT&T, TWR Cellular, Inc., the Cash Equity Investors
(as defined therein) parties thereto, Mercury PCS, LLC, Mercury PCS II, LLC, the
Management Stockholders party thereto and the Parent dated May 20, 1998, as
amended by that certain Closing Agreement dated January 7, 1999.
"Security Documents" shall mean the Borrower's Pledge Agreements, the
Borrower's Security Agreements, the Subsidiary Guaranties, the Subsidiary Pledge
Agreements, the Subsidiary Security Agreements, the Parent Pledge Agreement any
other agreement or instrument providing Collateral for the Obligations whether
now or hereafter in existence, any filings, instruments, agreements,
certificates, stock powers and documents related thereto or to this Agreement,
and any confirmations of any of the foregoing and providing the Administrative
Agent, for the benefit of itself and the Lenders, with Collateral for the
Obligations.
"Security Interest" shall mean all Liens in favor of the Administrative
Agent, for the benefit of itself and the Lenders, created hereunder or under any
of the Security Documents to secure the Obligations.
"Senior Debt" shall mean, as of any date, the excess, if any, of (a)
Total Debt minus (b) Subordinated Debt.
"Senior Debt Capitalization Ratio" shall mean, as of any date, the
ratio of (a) Senior Debt outstanding on such date to (b) Total Capital on such
date.
"Senior Leverage Ratio" shall mean, as of any date, the ratio of (a)
Senior Debt on such date to (b) Annualized Operating Cash Flow.
"Standby Letter of Credit" shall mean a letter of credit issued to
support obligations of the Borrower.
"Stockholders' Agreement" shall mean that Stockholders' Agreement by
and among AT&T, the Borrower, the Cash Equity Investors (as defined therein) and
the Management
23
Stockholders (as defined therein), as stockholders, dated as of January 7, 1999.
"Subordinated Debt" shall mean high yield subordinated debt issued by
the Borrower or the Parent having a maturity date that is not earlier than the
date which is six (6) months subsequent to December 31, 2007, and which is
otherwise on terms reasonably acceptable to the Required Lenders, and the
Indebtedness represented thereby and refinancings of such Indebtedness, provided
that (a) any such refinancing Indebtedness (i) shall not have a greater
outstanding principal amount, an earlier maturity date, or a decreased weighted
average life than the Subordinated Debt refinanced and (ii) shall be
subordinated to the Indebtedness created under the Loan Documents to at least
the extent of, and shall otherwise be issued on terms no less favorable to the
Lenders than, the Subordinated Debt refinanced, and (b) the proceeds of such
refinancing Indebtedness shall be used solely to repay the Subordinated Debt
refinanced thereby and any fees and expenses incurred in connection therewith.
"Subordinated Debt Documents" shall mean the indenture under which the
Subordinated Debt, if any, is issued and all other instruments, agreements and
other documents evidencing or governing the Subordinated Debt, if any, or
providing for any guarantee or other right in respect thereof.
"Subscribers" shall mean, as of any date, all customers receiving
broadband PCS services from the Borrower or its Subsidiaries none of the
subscriber payments (other than those being contested in good faith by such
customer) of which are more than sixty (60) days past due (or past due for more
than such shorter period of time as the Borrower may have established for
accounting or credit policy purposes for treating a customer as not being in
good standing).
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which more than fifty percent (50%) of the outstanding
partnership interests, is at the time owned directly or indirectly by such
Person, or by one or more Subsidiaries of such Person, or by such Person and one
or more Subsidiaries of such Person, or (b) any other entity which is directly
or indirectly controlled or capable of being controlled by such Person, or by
one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person. Subsidiaries of the Borrower as of the Agreement
Date are set forth on Schedule 2 attached hereto, except as otherwise noted
thereon.
"Subsidiary Guaranties" shall mean, collectively, those certain
Subsidiary Guaranties dated as of January 7, 1999, in favor of the
Administrative Agent and the Lenders given by each Subsidiary of the Borrower,
including, without limitation, each License Sub, and shall include any similar
agreements, each substantially in the form of Exhibit K attached hereto.
"Subsidiary Pledge Agreements" shall mean, collectively, those certain
Subsidiary Pledge
24
Agreements between each Subsidiary of the Borrower, including, without
limitation, each License Sub, having one or more of its own Subsidiaries, on the
one hand, and the Administrative Agent, on the other hand, or any similar
agreements, each substantially in the form of Exhibit L attached hereto.
"Subsidiary Security Agreements" shall mean, collectively, those
certain Subsidiary Security Agreements dated as of January 7, 1999, among each
of its Subsidiaries, including, without limitation, each License Sub, and the
Administrative Agent, and shall include any similar agreements, each
substantially in the form of Exhibit J attached hereto.
"Surplus Subordinated Debt" shall mean, as of any date of
determination, the aggregate principal amount of Subordinated Debt issued on or
before December 31, 1999, minus $125,000,000.
"Taxes" shall have the meaning ascribed thereto in Section 2.10(b)
hereof.
"Term Loan A" shall mean the amounts advanced by the Lenders to the
Borrower under the Term Loan A Commitment and evidenced by the Term Loan A
Notes.
"Term Loan A Commitment" shall mean the several obligations of the
Lenders to advance to the Borrower prior to the Term Loan A Draw Termination
Date $100,000,000, in accordance with their respective Commitment Ratios
pursuant to the terms hereof.
"Term Loan A Draw Termination Date" shall mean that date which is six
(6) months from the Agreement Date.
"Term Loan A Maturity Date" shall mean June 30, 2007, or such earlier
date as payment of the remaining outstanding principal amount of the Term Loan A
or of all remaining outstanding Obligations shall be due (whether by
acceleration or otherwise).
"Term Loan A Notes" shall mean, collectively, those certain term
promissory notes in the aggregate original principal amount of $100,000,000 and
one (1) issued to each of the Lenders having a Term Loan A Commitment by the
Borrower, each one substantially in the form of Exhibit C-2 attached hereto, and
any extensions, modifications, renewals or replacements of, or amendments to,
any of the foregoing.
"Term Loan B" shall mean the amounts advanced by the Lenders to the
Borrower under the Term Loan B Commitment and evidenced by the Term Loan B
Notes.
"Term Loan B Commitment" shall mean the several obligations of the
Lenders to advance to the Borrower $200,000,000, in accordance with their
respective Commitment Ratios pursuant to the terms hereof.
"Term Loan B Maturity Date" shall mean December 31, 2007, or such
earlier date as
25
payment of the remaining outstanding principal amount of the Term Loan B or of
all remaining outstanding Obligations shall be due (whether by acceleration or
otherwise).
"Term Loan B Notes" shall mean, collectively, those certain term
promissory notes in the aggregate original principal amount of $200,000,000 and
one (1) issued to each of the Lenders having a Term Loan B Commitment by the
Borrower, each one substantially in the form of Exhibit C-3 attached hereto, and
any extensions, modifications, renewals or replacements of, or amendments to,
any of the foregoing.
"Total Capital" shall mean, as of any date, the sum, without
duplication, of (a) Funded Debt outstanding on such date, (b) Contributed Equity
on such date, and (c) Committed Equity on such date, in each case, as calculated
in accordance with GAAP.
"Total Debt" shall mean, as of any date, for the Parent, the Borrower
and the Borrower's Subsidiaries, on a consolidated basis, the excess, if any,
of, without duplication, (a) the sum of (i) the Obligations, (ii) the
Subordinated Debt, and (iii) all other Indebtedness for Money Borrowed of the
Parent, the Borrower and the Borrower's Subsidiaries, minus (b) cash on hand.
"Total Debt Capitalization Ratio" shall mean, as of any date the ratio
of (a) Total Debt outstanding on such date to (b) Total Capital on such date.
"Total Leverage Ratio" shall mean, as of any date, the ratio of (a)
Total Debt outstanding on such date to (b) Annualized Operating Cash Flow.
"Total POPs" shall mean, as of any date, the aggregate number of POPs
within all geographic areas for which the Borrower or any of its Subsidiaries
holds a License to provide broadband PCS services.
"Tower Sale/Leaseback Transaction" shall mean any arrangement, direct
or indirect, entered into by the Borrower or any of its Subsidiaries, on the one
hand, and any third party, on the other hand, pursuant to which the Borrower or
such Subsidiary shall sell or transfer any tower or towers, whether now owned or
hereafter acquired, and shall then or thereafter rent or lease as lessee such
tower or towers or any part thereof which the Borrower or such Subsidiary
intends to use for substantially the same purpose or purposes as the tower or
towers sold or transferred.
"Upstream Dividends" shall have the meaning ascribed thereto in Section
7.21 hereof.
"Use of Proceeds Letters" shall mean those certain Use of Proceeds
Letters, substantially in the form of Exhibit G attached hereto, to be delivered
to the Administrative Agent and the Lenders on the date of any Advance
hereunder.
"Voting Stock" shall mean, with respect to a corporation, all classes
of Capital Stock of such corporation then outstanding and normally entitled to
vote in the election of directors.
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"Year 2000 Compliant" shall have the meaning ascribed thereto in
Section 4.1(y) hereof.
"Year 2000 Problem" shall have the meaning ascribed thereto in Section
4.1(y) hereof.
Section 1.2 Interpretation. Each definition of an agreement,
instrument or other document in this Article 1 shall, unless otherwise
specified, include such agreement as modified, amended, restated or supplemented
from time to time in accordance herewith, and except where the context otherwise
requires, the singular shall include the plural and vice versa. Except where
otherwise specifically restricted, reference to a party to this Agreement or any
other Loan Document includes that party and its successors and assigns. All
capitalized terms used herein which are defined in Article 9 of the Uniform
Commercial Code in effect in the State of New York on the date hereof and which
are not otherwise defined herein shall have the same meanings herein as set
forth therein.
ARTICLE 2 Credit Facilities and Letters of Credit
Section 2.1 Commitments and Letters of Credit.
(a) Revolving Loan Commitment. The Lenders who issued a Revolving Loan
Commitment, agree, severally, in accordance with their respective Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend and relend to the Borrower from time to time, prior to the
Revolving Loan Maturity Date amounts which do not exceed, in the aggregate, at
the time of any Advance under the Revolving Loan Commitment the Available
Revolving Loan Commitment as then in effect; provided, however, that the
Borrower may only request Advances under the Revolving Loan Commitment after the
Term Loan A Commitment has been drawn in full. Notwithstanding the foregoing,
the Borrower may request Advances under the Revolving Loan Commitment prior to
the Revolving Loan Maturity Date in an aggregate principal amount not to exceed,
and for the sole purpose of making, the Deposit Loan. Subject to the terms and
conditions hereof, Advances under the Revolving Loan Commitment may be repaid
and reborrowed from time to time on a revolving basis.
(b) Term Loan A Commitment. The Lenders who issued a Term Loan A
Commitment, agree , severally, in accordance with their respective Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend to the Borrower in multiple installments prior to the Term
Loan A Draw Termination Date an amount not to exceed the Term Loan A Commitment.
Subject to the terms and conditions hereof, Advances under the Term Loan A
Commitment may be repaid and reborrowed to effect a change in the Interest Rate
Basis or Interest Periods relating thereto; provided, however, that the Borrower
may only request Advances under the Term Loan A Commitment after the Term Loan B
Commitment has been drawn in full; and provided further, however, that there
shall be no increase in the principal amount outstanding under the Term Loan A
Commitment after the Term Loan A Draw
27
Termination Date.
(c) Term Loan B Commitment. The Lenders who have issued a Term Loan B
Commitment agree, severally, in accordance with their respective Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend to the Borrower on the Agreement Date an amount not to exceed
$150,000,000. The Lenders who issued a "Term Loan B Commitment" under, and as
defined in, the Prior Loan Agreement have previously lent to the Borrower the
amount in the aggregate of $50,000,000 of which $50,000,000 is outstanding on
the Agreement Date. The Borrower hereby acknowledges that all "Obligations" in
respect of "Advances" outstanding under the "Term Loan B Commitment" (as such
terms are defined in the Prior Loan Agreement) shall be deemed to have been made
to the Borrower as Advances under the Term Loan B Commitment hereunder and shall
constitute a portion of the Obligations. Subject to the terms and conditions
hereof, Advances under the Term Loan B Commitment may be repaid and reborrowed
to effect a change in the Interest Rate Basis or Interest Periods relating
thereto; provided, however, that there shall be no increase in the principal
amount outstanding under the Term Loan B Commitment.
(d) The Letters of Credit. Subject to the terms and conditions of this
Agreement, the Issuing Bank agrees to issue Letters of Credit for the account of
the Borrower pursuant to Section 2.15 hereof in an aggregate amount at the time
of issuance of any Letter of Credit hereunder not to exceed the Available Letter
of Credit Commitment then in effect.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at the option of
the Borrower, be made as a Base Rate Advance or a Eurodollar Advance; provided,
however, that at such time as there shall have occurred and be continuing an
Event of Default hereunder, the Borrower shall not have the right to receive a
Eurodollar Advance. Any notice given to the Administrative Agent in connection
with a requested Advance hereunder shall be given to the Administrative Agent
prior to 11:00 a.m. (Ne York, New York time) in order for such Business Day to
count toward the minimum number of Business Days required.
(b) Base Rate Advances.
(i) Advances. The Borrower shall give the Administrative Agent
irrevocable prior written notice prior to 11:00 a.m. (New York, New York time)
on the date of any requested Base Rate Advance in the form of a Request for
Advance, or telephonic notice followed immediately by a Request for Advance;
provided, however, that the Borrower's failure to confirm any telephonic notice
with a Request for Advance shall not invalidate any notice so given if acted
upon by the Administrative Agent. Upon receipt of such notice from the Borrower,
the Administrative Agent shall promptly notify each Lender by telephone or
telecopy of the contents thereof.
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(ii) Repayments and Reborrowings. The Borrower may repay or prepay
a Base Rate Advance without regard to its Payment Date and, (A) upon irrevocable
prior written notice prior to 11:00 a.m. (New York, New York time) on the date
of any requested repayment and reborrowing, or telephonic notice followed
immediately by a written notice, reborrow all or a portion of the principal
amount thereof as a Base Rate Advance, (B) upon at least three (3) Business
Days' irrevocable prior written notice, or telephonic notice followed
immediately by a written notice, reborrow all or a portion of the principal
thereof as one or more Eurodollar Advances, or (C) not reborrow all or any
portion of such Base Rate Advance; provided, however, that the Borrower's
failure to confirm any telephonic notice with a written notice shall not
invalidate any notice so given if acted upon by the Administrative Agent. On the
date indicated by the Borrower, such Base Rate Advance shall be so repaid and,
as applicable, reborrowed. The failure to give timely notice hereunder with
respect to the Payment Date of any Base Rate Advance shall be deemed a request
for a Base Rate Advance.
(c) Eurodollar Advances.
(i) Advances. Upon request of the Borrower, the Administrative
Agent, whose determination shall be conclusive, shall determine the available
Eurodollar Bases and shall notify the Borrower of such Eurodollar Bases. The
Borrower shall give the Administrative Agent in the case of Eurodollar Advances
at least three (3) Business Days' irrevocable prior written notice in the form
of a Request for Advance, or telephonic notice followed immediately by a Request
for Advance; provided, however, that the Borrower's failure to confirm any
telephonic notice with a Request for Advance shall not invalidate any notice so
given if acted upon by the Administrative Agent. Upon receipt of such notice
from the Borrower, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. At least three (3) Business Days
prior to the Payment Date for each Eurodollar Advance, the Borrower shall give
the Administrative Agent written notice, or telephonic notice followed
immediately by written notice, specifying whether all or a portion of such
Eurodollar Advance (A) is to be repaid and then reborrowed in whole or in part
as one or more Eurodollar Advances, (B) is to be repaid and then reborrowed in
whole or in part as a Base Rate Advance or (C) is to be repaid and not
reborrowed; provided, however, that the Borrower's failure to confirm any
telephonic notice with a written notice shall not invalidate any notice so given
if acted upon by the Administrative Agent. The failure to give such notice shall
preclude the Borrower from reborrowing such Advance as a Eurodollar Advance on
its Payment Date and shall be deemed a request for a Base Rate Advance. Upon
such Payment Date such Eurodollar Advance will, subject to the provisions
hereof, be so repaid and, as applicable, reborrowed.
(d) Notification of Lenders. Upon receipt of a Request for Advance, or
a notice from the Borrower with respect to any outstanding Advance prior to the
Payment Date for such Advance, the Administrative Agent shall promptly notify
each Lender by telephone or telecopy of the contents thereof and the amount of
such Lender's portion of the Advance. Each
29
Lender shall, not later than 12:00 noon (New York, New York time) on the date of
borrowing specified in such notice, make available to the Administrative Agent
at the Administrative Agent's Office, or at such account as the Administrative
Agent shall designate, the amount of its portion of any Advance which represents
an additional borrowing hereunder in immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (New York, New York time) on the date of an
Advance hereunder, the Administrative Agent shall, subject to the satisfaction
of the conditions set forth in Article 3 hereof, disburse the amounts made
available to the Administrative Agent by the Lenders in like funds by (a)
transferring the amounts so made available by wire transfer pursuant to the
Borrower's instructions or (b) in the absence of such instructions, crediting
the amounts so made available to the account of the Borrower maintained with the
Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice
from a Lender prior to 12:00 noon (New York, New York time) on the date of any
Advance that such Lender will not make available to the Administrative Agent
such Lender's ratable portion of such Advance, the Administrative Agent may
assume that such Lender has made or will make such portion available to the
Administrative Agent on the date of such Advance and the Administrative Agent
may in its sole discretion and in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent the
Lender does not make such ratable portion available to the Administrative Agent,
such Lender agrees to repay to the Administrative Agent on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at the Federal Funds Rate.
(iii) If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
portion of the applicable Advance for purposes of this Agreement. If such Lender
does not repay such corresponding amount immediately upon the Administrative
Agent's demand therefor, the Administrative Agent shall notify the Borrower and
the Borrower shall immediately pay such corresponding amount to the
Administrative Agent, with interest at the Federal Funds Rate. The failure of
any Lender to fund its portion of any Advance shall not relieve any other Lender
of its obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Lender shall be responsible for
any such failure of any other Lender.
(iv) In the event that, at any time when the Borrower is not in
Default and has otherwise satisfied each of the conditions in Section 3.2
hereof, a Lender for any reason fails or refuses to fund its portion of such
Advance (any such Lender being a "Defaulting Lender"), then, until such time as
such Defaulting Lender has funded its portion of such Advance (which late
funding shall not absolve such Lender from any liability it may have to the
Borrower), or all other Lenders have received payment in full from the Borrower
(whether by
30
repayment or prepayment) or otherwise of the principal and interest due in
respect of such Advance, such Defaulting Lender shall not have the right (A) to
vote regarding any issue on which voting is required or advisable under this
Agreement or any other Loan Document, and such Defaulting Lender's portion of
the Loans shall not be counted as outstanding for purposes of determining
"Required Lenders" hereunder, or (B) to receive payments of principal, interest
or fees from the Borrower, the Administrative Agent or the other Lenders in
respect of its portion of the Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance shall be
computed on the basis of a year of three hundred sixty-five (365)/ three hundred
sixty-six (366) days for the actual number of days elapsed and shall be payable
at the Base Rate Basis for such Advance, in arrears on the applicable Payment
Date. Interest on Base Rate Advances then outstanding shall also be due and
payable on the Maturity Date.
(b) On Eurodollar Advances. Interest on each Eurodollar Advance shall
be computed on the basis of a three hundred sixty (360) day year for the actual
number of days elapsed and shall be payable at the Eurodollar Basis for such
Advance, in arrears on the applicable Payment Date, and, in addition, if the
Interest Period for a Eurodollar Advance exceeds three (3) months, interest on
such Eurodollar Advance shall also be due and payable in arrears on every
three-month anniversary of the beginning of such Interest Period. Interest on
Eurodollar Advances then outstanding shall also be due and payable on the
Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate Basis. If the
Borrower fails to give the Administrative Agent timely notice of its selection
of a Eurodollar Basis, or if for any reason a determination of a Eurodollar
Basis for any Advance is not timely concluded, the Base Rate Basis shall apply
to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence of an Event
of Default described in Section 8.1(b) hereunder as a result of the failure of
the Borrower to make any payment specified therein when due, the unpaid amount
of any such payment (to the extent permitted by Applicable Law) shall bear
interest at the Default Rate. Such interest shall be payable by the Borrower on
demand by the Required Lenders and shall accrue from the occurrence of such
Event of Default until the earlier of (i) waiver or cure of the applicable Event
of Default, (ii) agreement by the Required Lenders (or, if applicable to the
underlying Event of Default, all of the Lenders) to rescind the charging of
interest at the Default Rate or (iii) payment in full of the unpaid amount of
any such payment.
(e) Eurodollar Advance Contracts. At no time may the number of
outstanding Eurodollar Advances hereunder exceed in the aggregate ten (10).
(f) Applicable Margin.
31
(i) Revolving Loan Commitment and Term Loan A Commitment. From the
Agreement Date through and including the earlier to occur of (A) the Go-Positive
Date and (B) the third (3rd) anniversary of the Agreement Date, the Applicable
Margin for any Advance under the Revolving Loan Commitment or the Term Loan A
Commitment shall be, (1) for Base Rate Advances, two and three-quarters of one
percent (2.750%), and (2) for Eurodollar Advances, three and three-quarters of
one percent (3.750%). In the event that the third (3rd) anniversary of the
Agreement Date shall occur prior to the Go-Positive Date, then from the third
(3rd) anniversary of the Agreement Date through and including the Go-Positive
Date, the Applicable Margin for any Advance under the Revolving Loan Commitment
or the Term Loan A Commitment shall be, (A) for Base Rate Advances, two percent
(2.000%), and (B) for Eurodollar Advances, three percent (3.000%). At all times
after the Go-Positive Date, the Applicable Margin shall be determined by the
Administrative Agent with respect to any Advance under the Revolving Loan
Commitment or the Term Loan A Commitment based upon the Total Leverage Ratio as
of the end of the fiscal quarter most recently ended, effective as of the third
(3rd) Business Day after the financial statements referred to in Section 6.1 or
6.2 hereof, as the case may be, are furnished to the Administrative Agent for
such fiscal quarter, as follows:
Base Rate Advance Eurodollar Advance
Total Leverage Ratio Applicable Margin Applicable Margin
-------------------- ----------------- -----------------
Greater than 10.0:1 1.875% 2.875%
Less than or equal to 10.0:1.0, but greater than 8.0:1.0 1.750% 2.750%
Less than or equal to 8.0:1.0, but greater than 7.0:1.0 1.500% 2.500%
Less than or equal to 7.0:1.0, but greater than 6.0:1.0 1.250% 2.250%
Less than or equal to 6.0:1.0, but greater than 5.0:1.0 1.000% 2.000%
Less than or equal to 5.0:1.0 0.750% 1.750%
Notwithstanding the foregoing, if the Borrower shall fail to timely
deliver to the Administrative Agent the financial statements required for the
calculation of the Total Leverage Ratio for any fiscal quarter, then commencing
with the Business Day after the date such financial statements were due and
continuing through the third (3rd) Business Day following the date of delivery
thereof, the Total Leverage Ratio for such period shall be conclusively presumed
to be, and the Applicable Margin for any Advance under the Revolving Loan
Commitment or the Term Loan A Commitment shall be calculated based upon, the
highest Total Leverage Ratio level listed in the table set forth above in this
Section 2.3(f)(i).
32
(ii) Term Loan B Commitment. The Applicable Margin for any Advance
under the Term Loan B Commitment shall be, (A) from the Agreement Date through
and including the earlier to occur of (1) the Go-Positive Date and (2) the third
(3rd) anniversary of the Agreement Date, (a) for Base Rate Advances, three and
one-half of one percent (3.500%), and (b) for Eurodollar Advances, four and
one-half of one percent (4.500%), and (B) at all times after the earlier to
occur of (1) the Go- Positive Date or (2) the third (3rd) anniversary of the
Agreement Date, (a) for Base Rate Advances, two and three-quarters of one
percent (2.750%), and (b) for Eurodollar Advances, three and three-quarters of
one percent (3.750%).
Section 2.4 Fees.
(a) Commitment Fees. The Borrower agrees to pay each of the Lenders, in
accordance with their respective Commitment Ratios for the applicable
Commitment, a commitment fee on the Available Revolving Loan Commitment and the
Available Term Loan A Commitment for each day from the Agreement Date until, (1)
with respect to the Revolving Loan Commitment, the Revolving Loan Maturity Date,
and (2) with respect to the Term Loan A Commitment, the Term Loan A Draw
Termination Date, equal to the product of (A) an amount equal to the sum of the
Available Revolving Loan Commitment and the Available Term Loan A Commitment on
such date, and (B) the applicable rate per annum set forth below based upon the
ratio of the total Available Revolving Loan Commitments and Available Term Loan
A Commitments to the total Revolving Loan Commitments and Term Loan A
Commitments on such date:
Available Revolving Loan Commitments and
Available Term Loan A Commitments as a Percentage
of the Total Revolving Commitments and Term Loan
A Commitment Commitment Fee Rate Per Annum
------------ -----------------------------
Greater than or equal to sixty-six and
two-thirds percent (66-2/3%) 1.75%
Greater than or equal to fifty percent (50%),
but less than sixty-six and two-thirds
percent (66-2/3%) 1.00%
Less than fifty percent (50%) 0.50%
Such commitment fees shall be computed on the basis of a year of three
hundred sixty-five (365)/three hundred sixty-six (366) days for the actual
number of days elapsed, shall be payable quarterly in arrears on the last
Business Day of each calendar quarter, and shall be fully earned when due and
non-refundable when paid. A final payment of all commitment fees then payable
shall also be due and payable on, (i) with respect to the Revolving Loan
Commitment,
33
the Revolving Loan Maturity Date and, (ii) with respect to the Term
Loan A Commitment, the Term Loan A Draw Termination Date.
(b) Letter of Credit Fees.
(i) The Borrower shall pay to the Issuing Bank a fee on the
undrawn face amount of any outstanding Letters of Credit from the date of
issuance through the expiration date of each such Letter of Credit at a rate
of one-eighth of one percent (0.125%) per annum, which fee shall be computed
on the basis of a year of 365/366 days for the actual number of days
elapsed, and shall be payable quarterly in arrears on the last Business Day
of each calendar quarter and shall be fully earned when due and
non-refundable when paid. A final payment of all letter of credit fees shall
also be due and payable on the Revolving Loan Maturity Date.
(ii) The Borrower shall also pay to the Administrative Agent on
behalf of the Lenders in accordance with their respective Commitment Ratios,
a fee on the undrawn face amount of any outstanding Letters of Credit for
each day from the date of issuance thereof through the expiration date for
each such Letter of Credit at a rate per annum equal to the Applicable
Margin for Eurodollar Advances as set forth in Section 2.3(f)(i) hereof.
Such letter of credit fee shall be computed on the basis of a year of
365/366 days for the actual number of days elapsed and shall be payable
quarterly in arrears for each quarter on the last Business Day of each
calendar quarter and shall be fully earned when due and non-refundable when
paid. A final payment of all letter of credit fees shall also be due and
payable on the Revolving Loan Maturity Date. The letter of credit fee set
forth in this Section 2.4(b)(ii) shall be subject to increase and decrease
on the dates and in the amounts set forth in Section 2.3(f) hereof in the
same manner as the adjustment of the Applicable Margin with respect to
Eurodollar Advances that are Revolving Loans.
Section 2.5 Mandatory Revolving Loan Commitment Reductions
(a) Scheduled Reductions under Revolving Loan Commitment. Commencing
December 31, 2002, and on the last day of each calendar quarter ending during
the periods set forth below, the Revolving Loan Commitment as of December 30,
2002 shall be automatically and permanently reduced by the percentage amount set
forth below for the dates indicated:
34
Percentage of Revolving
Loan Commitment as of
Scheduled Reduction Dates December 30, 2002
------------------------- -----------------
December 31, 2002 2.50000%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 2.96875%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 4.53125%
March 31, 2005, June 30, 2005,
September 30, 2005 and December 31, 2005 5.31250%
March 31, 2006, June 30, 2006
September 30, 2006 and December 31, 2006 6.40625%
March 31, 2007 and the Revolving Loan Maturity Date 10.31250%
(b) Reduction From Excess Cash Flow. The Revolving Loan Commitment
shall be automatically and permanently reduced by an amount equal to the
repayment of Revolving Loans required under Section 2.7(b)(iv) hereof; provided,
however, that if there is no Term Loan A or Term Loan B then outstanding, then
the Revolving Loan Commitment shall be reduced by an amount equal to the Excess
Cash Flow, regardless of any repayment of the Revolving Loans. Reductions to the
Revolving Loan Commitment under this Section 2.5(b) shall be applied to the
reductions set forth in Section 2.5(a) hereof pro rata across the reductions set
forth therein.
(c) Reduction From Permitted Asset Sales. The Revolving Loan Commitment
shall be automatically and permanently reduced by an amount equal to the
repayment of Revolving Loans required under Section 2.7(b)(iii) hereof;
provided, however, that if there is no Term Loan A or Term Loan B then
outstanding, the Revolving Loan Commitment shall be reduced by an amount equal
to the Net Proceeds (Asset Sales), regardless of any repayment of the Revolving
Loans. Reductions to the Revolving Loan Commitment under this Section 2.5(c)
shall be applied to the reductions set forth in Section 2.5(a) hereof pro rata
across the reductions set forth therein.
(d) Reduction From Sale of Capital Stock and Debt Instruments. The
Revolving Loan Commitment shall be automatically and permanently reduced by an
amount equal to the repayment of Revolving Loans required under Section
2.7(b)(v) hereof; provided, however, that if there is no Term Loan A or Term
Loan B then outstanding, then the Revolving Loan Commitment shall be reduced by
an amount equal to the Net Proceeds (Capital Sales), regardless of any repayment
of the Revolving Loans. Reductions to the Revolving Loan
35
Commitment under this Section 2.5(d) shall be applied to the reductions set
forth in Section 2.5(a) hereof pro rata across the reductions set forth therein.
Section 2.6 Voluntary Commitment Reductions. The Borrower shall have
the right, at any time and from time to time after the Agreement Date, but prior
to, (a) with respect to the Revolving Loan Commitment, the Revolving Loan
Maturity Date, and (b) with respect to the Term Loan A Commitment, the Term Loan
A Draw Termination Date, upon at least three (3) Business Days' prior written
notice to the Administrative Agent, without premium or penalty, to cancel or
reduce permanently all or a portion of the Revolving Loan Commitment and the
Term Loan A Commitment pro rata on the basis of the respective Commitment Ratios
of the Lenders applicable to the Revolving Loan Commitment and the Term Loan A
Commitment, respectively; provided, however, that any such partial reduction
shall be made in an amount not less than $2,000,000 and in an integral multiple
of $1,000,000. As of the date of cancellation or reduction set forth in such
notice, the Revolving Loan Commitment and the Term Loan A Commitment, as
applicable, shall be permanently reduced to the amount stated in such notice for
all purposes herein, and the Borrower shall pay to the Administrative Agent for
the Lenders the amount necessary to reduce the principal amount of the Loans
then outstanding under Revolving Loan Commitment and the Term Loan A Commitment,
or take such other action as may be necessary to repay, cancel or otherwise
discharge the Letter of Credit Obligations, as applicable, to not more than the
amount of Revolving Loan Commitment and the Term Loan A Commitment, as
applicable, as so reduced, together with accrued interest on the amount so
prepaid and commitment fees accrued through the date of the reduction with
respect to the amount reduced. Reductions to the Revolving Loan Commitment under
this Section 2.6 shall be applied to the reductions set forth in Section 2.5(a)
hereof pro rata across the reductions set forth therein.
36
Section 2.7 Prepayments and Repayments.
(a) Prepayment. The principal amount of any Base Rate Advance may be
prepaid in full or ratably in part at any time, without premium or penalty
(other than any Applicable Prepayment Fee required to be paid pursuant to
Section 2.8 hereof) and without regard to the Payment Date for such Advance.
Eurodollar Advances may be prepaid prior to the applicable Payment Date, upon
two (2) Business Days' prior written notice, or telephonic notice followed
immediately by written notice, to the Administrative Agent; provided, however,
that the Borrower shall pay any Applicable Prepayment Fee required to be paid
pursuant to Section 2.8 hereof and shall reimburse the Lenders and the
Administrative Agent, on the earlier of demand by the applicable Lender or the
Maturity Date, for any loss or out-of-pocket expense incurred by any Lender or
the Administrative Agent in connection with such prepayment, as set forth in
Section 2.11 hereof; provided further, however, that the Borrower's failure to
confirm any telephonic notice with a written notice shall not invalidate any
notice so given if acted upon by the Administrative Agent. Any prepayment
hereunder shall be in an amount not less than $2,000,000 and in an integral
multiple of $1,000,000. Revolving Loans prepaid pursuant to this Section 2.7 (a)
may be reborrowed, subject to the terms and conditions hereof. Amounts prepaid
shall be paid together with accrued interest on the amount so prepaid accrued
through the date of such repayment.
(b) Repayments. The Borrower shall repay the Loans as follows:
(i) Scheduled Repayments of Term Loan A and Term Loan B.
Commencing December 31, 2002, the principal balance of each of Term Loan A
and Term Loan B outstanding on December 30, 2002 shall be repaid in
consecutive quarterly installments on March 31st, June 30th, September 30th,
and December 31st of each year until paid in full in such amounts and on
such dates as set forth below:
37
Percentage of Principal of Percentage of Principal of
Term Loan A Outstanding Term Loan B Outstanding
on December 30, 2002 Due on on December 30, 2002 Due on
Repayment Dates Each Repayment Date Each Repayment Date
--------------- ------------------- -------------------
December 31, 2002 2.50000% 1.000%
March 31, 2003, June 30,
2003, September 30, 2003
and December 31, 2003 2.96875% 0.250%
March 31, 2004, June 30,
2004, September 30, 2004
and December 31, 2004 4.53125% 0.250%
March 31, 2005, June 30,
2005, September 30, 2005
and December 31, 2005 5.31250% 0.250%
March 31, 2006, June 30,
2006, September 30, 2006
and December 31, 2006 6.40625% 0.250%
March 31, 2007 10.31250% 0.250%
Term Loan A Maturity Date 10.31250% Not Applicable
June 30, 2007 and
September 30, 2007 Not Applicable 0.250%
Term Loan B Maturity Date Not Applicable 94.250%
(ii) Revolving Loans in Excess of Revolving Loan Commitment. If,
at any time, the sum of the Revolving Loans and the Letter of Credit
Obligations shall exceed the Revolving Loan Commitment, the Borrower shall,
on such date and subject to Section 2.11 hereof, make a repayment of the
principal amount of the Revolving Loans, together with any accrued interest
with respect thereto, and/or repay, cancel or otherwise discharge the Letter
of Credit Obligations in an aggregate amount equal to such excess.
(iii) Permitted Asset Sales. On the Business Day following the
date of receipt
38
by the Borrower or any of its Subsidiaries of any Net Proceeds (Asset Sales)
(other than in connection with a disposition of assets permitted under
Section 7.4(a) hereof), the Loans shall be repaid in an amount equal to, in
the aggregate, all such Net Proceeds (Asset Sales). The amount of the Net
Proceeds (Asset Sales) required to be repaid under this Section 2.7(b)(iii)
shall be applied to the Loans on a pro rata basis among the Term Loan A, the
Term Loan B and the Revolving Loans then outstanding. Accrued interest on
the principal amount of the Loans being prepaid pursuant to this Section
2.7(b)(iii) to the date of such prepayment will be paid by the Borrower
concurrently with such principal prepayment.
(iv) Excess Cash Flow. On or prior to April 15, 2002, and on or
prior to each April 15th thereafter during the term of this Agreement, the
Loans shall be repaid in an amount equal to, in the aggregate, fifty percent
(50%) of Excess Cash Flow for the fiscal year ended on the immediately
preceding December 31st. The amount of the Excess Cash Flow required to be
repaid under this Section 2.7(b)(iv) shall be applied to the Loans on a pro
rata basis among the Term Loan A, the Term Loan B and the Revolving Loans
then outstanding. Accrued interest on the principal amount of the Loans
being prepaid pursuant to this Section 2.7(b)(iv) to the date of such
prepayment will be paid by the Borrower concurrently with such principal
prepayment.
(v) Sale of Capital Stock and Debt Instruments. On the Business
Day following the date of receipt by the Borrower or any of the Borrower's
Subsidiaries of any Net Proceeds (Capital Sales), the Loans shall be repaid
in an amount equal to, in the aggregate, (a) with respect to any sale or
issuance of any Capital Stock or other Ownership Interests by the Borrower
or any of the Borrower's Subsidiaries after the Agreement Date ((i) other
than pursuant to the sale, issuance or other disposition of any Capital
Stock or other Ownership Interests to: (A) the Parent, the Borrower or any
Subsidiary of the Borrower; (B) any employee benefit plan or restricted
stock plan maintained or established by the Parent or the Borrower; or (C)
any Person pursuant to Section 5.20 hereof and (ii) excluding Committed
Equity as of the Agreement Date) fifty percent (50%) of the Net Proceeds
(Capital Sales) related thereto, and (b) with respect to any Indebtedness
issued by the Borrower or any of the Borrower's Subsidiaries after the
Agreement Date (other than Indebtedness permitted under Section 7.1 hereof),
one hundred percent (100%) of the Net Proceeds (Capital Sales) related
thereto. The amount of the Net Proceeds (Capital Sales) required to be
repaid under this Section 2.7(b)(v) shall be applied to the Loans on a pro
rata basis among the Term Loan A, the Term Loan B and the Revolving Loans
then outstanding. Accrued interest on the principal amount of the Loans
being prepaid pursuant to this Section 2.7(b)(v) to the date of such
prepayment will be paid by the Borrower concurrently with such principal
prepayment.
(vi) Pro Rata Application. In addition to the foregoing, (a) any
repayment of the Loans required under Section 2.7(b)(iii), (iv) or (v)
hereof shall be applied, (1) with respect to the Term Loan A and Term Loan
B, pro rata across the maturities set forth in Section 2.7(b)(i) hereof and,
(2) with respect to the Revolving Loans, pro rata across the
39
reductions set forth in Section 2.5(a) hereof, and (b) any repayment of the
Revolving Loans required under Section 2.7(b)(ii) hereof shall be applied
pro rata across the reductions set forth in Section 2.5(a) hereof.
(vii) Term Loan B Election Not to Receive Repayment.
Notwithstanding any of the foregoing, with respect to any repayment of Term
Loan B required under Section 2.7(b)(iii), (iv) or (v) hereof, any Lender
having a Term Loan B Commitment may elect not to receive such repayment to
the extent that Term Loan A is outstanding (after giving effect to any
repayment of Term Loan A required under Section 2.7(b)(iii), (iv) or (v) at
such time). In the event that a Lender having a Term Loan B Commitment makes
the election not to receive a repayment of Term Loan B set forth in the
immediately preceding sentence, the aggregate amount of the affected
repayment elected not to be received by such Lender shall be applied to Term
Loan A pro rata across the reductions set forth in Section 2.7(b)(i) hereof
applicable to Term Loan A.
(vii) Maturity Date. In addition to the foregoing, a final payment
of all Obligations then outstanding shall be due and payable on the Maturity
Date.
Section 2.8 Prepayment Fee. Any prepayment of Term Loan B made pursuant to
Section 2.7(a) hereof made on or before December 31, 2001 shall be accompanied
by the Applicable Prepayment Fee, which shall be an amount equal to the product
of (a) the amount of such prepayment and (b) Applicable Prepayment Fee
percentage set forth below for the period during which such prepayment is made:
Applicable Prepayment
Payment Date Occurs On or Between: Fee percentage
---------------------------------- --------------
Agreement Date through December 31, 1999 3.00%
January 1, 2000 through December 31, 2000 2.00%
January 1, 2001 through December 31, 2001 1.00%
Section 2.9 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein and shall be evidenced by the Notes. One (1)
Revolving Loan Note, one (1) Term Loan A Note and one (1) Term Loan B Note shall
be payable to the order of each Lender for such Commitment, in accordance with
such Lender's respective Commitment Ratio for the applicable Commitment. The
Notes shall be issued by the Borrower to the Lenders and shall be duly executed
and delivered by one (1) or more Authorized Signatories. Any Lender (i) which is
not a United States Person (a "Non-U.S. Lender") and (ii) which would become
completely exempt from withholding of United States federal income taxes in
respect of payment of any obligations due to such Lender hereunder or under the
Notes or any other Loan Document
40
relating to any of its Loans if such Loans were in registered form for United
States federal income tax purposes may request the Borrower (through the
Administrative Agent), and the Borrower agrees thereupon, at the cost and
expense of such Lender, to register such Loans as provided in Section 11.5(g)
hereof and to issue to such Lender Notes evidencing such Loans as Registered
Notes or to exchange Notes evidencing such Loans for new Registered Notes, as
applicable. Registered Notes may not be exchanged for Notes that are not in
registered form.
(b) Each Lender may open and maintain on its books in the name of the
Borrower a loan account with respect to its portion of the Loans and interest
thereon. Each Lender which opens such a loan account shall debit such loan
account for the principal amount of its portion of each Advance made by it and
accrued interest thereon, and shall credit such loan account for each payment on
account of principal of or interest on its Loans. The records of a Lender with
respect to the loan account maintained by it shall be prima facie evidence of
its portion of the Loans and accrued interest thereon absent manifest error, but
the failure of any Lender to make any such notations or any error or mistake in
such notations shall not affect the Borrower's repayment obligations with
respect to such Loans.
Section 2.10 Manner of Payment.
(a) Each payment (including, without limitation, any prepayment) by the
Borrower on account of the principal of or interest on the Loans, commitment
fees and any other amount owed to the Lenders or the Administrative Agent or any
of them under this Agreement, the Notes or any other Loan Document shall be made
not later than 1:00 p.m. (New York, New York time) on the date specified for
payment under this Agreement to the Administrative Agent at the Administrative
Agent's Office, for the account of the Lenders or the Administrative Agent, as
the case may be, in lawful money of the United States of America in immediately
available funds. Any payment received by the Administrative Agent after 1:00
p.m. (New York, New York time) shall be deemed received on the next Business
Day. Receipt by the Administrative Agent of any payment intended for any Lender
or Lenders hereunder prior to 1:00 p.m. (New York, New York time) on any
Business Day shall be deemed to constitute receipt by such Lender or Lenders on
such Business Day. In the case of a payment for the account of a Lender, the
Administrative Agent will promptly thereafter distribute the amount so received
in like funds to such Lender. If the Administrative Agent shall not have
received any payment from the Borrower as and when due, the Administrative Agent
will promptly notify the Lenders accordingly. In the event that the
Administrative Agent shall fail to make distribution to any Lender as required
under this Section 2.10, the Administrative Agent agrees to pay such Lender
interest from the date such payment was due until paid at the Federal Funds
Rate.
(b) The Borrower agrees to pay principal, interest, fees and all other
amounts due hereunder or under the Notes without set-off or counterclaim or any
deduction whatsoever and free and clear of all taxes, levies and withholding
(other than Excluded Taxes, collectively, "Taxes"). Subject to the compliance by
the Administrative Agent and each Lender with the provisions of Section 2.14
hereof, if the Borrower is required by Applicable Law to deduct any Taxes from
or in respect of any sum payable to the Administrative Agent or any Lender
41
hereunder, under any Note or under any other Loan Document: (i) the sum payable
hereunder or thereunder, as applicable, shall be increased to the extent
necessary to provide that, after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.10(b)),
the Administrative Agent or such Lender, as applicable, receives an amount equal
to the sum it would have received had no such deductions been made; (ii) the
Borrower shall make such deductions from such sums payable hereunder or
thereunder, as applicable, and pay the amount so deducted to the relevant taxing
authority as required by Applicable Law; and (iii) the Borrower shall provide
the Administrative Agent or such Lender, as applicable, with evidence
satisfactory to the Administrative Agent or such Lender, as applicable, that
such deducted amounts have been paid to the relevant taxing authority.
(c) Prior to the declaration of an Event of Default under Section 8.2
hereof, if some but less than all amounts due from the Borrower are received by
the Administrative Agent with respect to the Obligations, the Administrative
Agent shall distribute such amounts in the following order of priority, all in
accordance where applicable with the respective Commitment Ratios of the Lenders
for the applicable Commitment: (i) to the payment of any fees or expenses then
due and payable to the Administrative Agent and the Lenders, or any of them;
(ii) to the payment of interest then due and payable on the Loans; (iii) to the
payment of all other amounts not otherwise referred to in this Section 2.10(c)
then due and payable to the Administrative Agent and the Lenders, or any of
them, hereunder or under the Notes or any other Loan Document; (iv) to the
payment of principal then due and payable on the Loans made under each of the
Term Loan A Commitment and the Term Loan B Commitment; and (v) t the payment of
principal then due and payable on the Loans made under the Revolving Loan
Commitment.
(d) Subject to any contrary provisions in the definition of Interest
Period, if any payment under this Agreement or any of the other Loan Documents
is specified to be made on a day which is not a Business Day, it shall be made
on the next Business Day, and such extension of time shall in such case be
included in computing interest and fees, if any, in connection with such
payment.
Section 2.11 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses or
out-of-pocket expenses in connection with (i) failure by the Borrower to borrow
any Eurodollar Advance after having given notice of its intention to borrow in
accordance with Section 2.2(c) hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3 hereof) or (ii) prepayment (or failure to prepay after giving
notice thereof) of any Eurodollar Advance in whole or in part for any reason,
the Borrower agrees to pay to such Lender, upon the earlier of ten (10) days
after such Lender's demand or the Maturity Date, as appropriate, an amount
sufficient to compensate such Lender for all such losses and out-of-pocket
expenses other than any lost margin on the Loans. Such Lender's good faith
determination of the amount of such losses or out-of-pocket expenses, as set
forth in writing and accompanied by calculations in reasonable detail
demonstrating the basis for its demand, shall be conclusively correct absent
manifest error.
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(b) Losses subject to reimbursement hereunder shall include, without
limiting the generality of the foregoing, expenses incurred by any Lender or any
participant of such Lender permitted hereunder in connection with the
re-employment of funds prepaid, paid, repaid, not borrowed, or not paid, as the
case may be, and will be payable as a result of acceleration of the Obligations.
Section 2.12 Pro Rata Treatment.
(a) Advances. Each Advance from the Lenders under any Commitment shall
be made pro rata on the basis of the respective Commitment Ratios of the Lenders
applicable to the particular Commitment.
(b) Payments. Except as provided in each of Section 2.2(e) and Article
10 hereof, each payment and prepayment of principal of the Loans and each
payment of interest on the Loans, shall be made to the Lenders pro rata on the
basis of their respective unpaid principal amounts outstanding under the Notes
immediately prior to such payment or prepayment. If any Lender shall obtain any
payment (whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans in excess of its ratable share of the Loans
under its Commitment Ratio, such Lender shall forthwith purchase from the other
Lenders such participations in the portion of the Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 2.12(b) may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 2.13 Capital Adequacy. If after the date hereof, the adoption
of any Applicable Law regarding the capital adequacy of Lenders or Lender
holding companies, or any change in Applicable Law (adopted after the Agreement
Date) or any change in the interpretation or administration thereof (adopted
after the Agreement Date) by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by such Lender with any directive regarding capital adequacy (whether
or not having the force of law) of any such governmental authority, central bank
or comparable agency (issued after the Agreement Date), has or would have the
effect of reducing the rate of return on any Lender's or any Lender's holding
company's capital as a consequence of its obligations hereunder with respect to
the Loans and the Commitments to a level below that which it could have achieved
but for such adoption, change or compliance (taking into consideration such
Lender's policies with respect to capital adequacy immediately before such
adoption, change or compliance and assuming that such Lender's capital was fully
utilized prior to such adoption, change or compliance) by an amount reasonably
deemed by such Lender to be material, then,
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upon the earlier of ten (10) days after demand by such Lender or the Maturity
Date, the Borrower shall promptly pay to such Lender such additional amounts as
shall be sufficient to compensate such Lender for such reduced return, together
with interest on such amount from the tenth (10th) day after the date of demand
or the Maturity Date until payment in full thereof at the Default Rate.
Notwithstanding the foregoing, the Borrower shall only be obligated to
compensate such Lender for any amount under this subsection arising or occurring
during (i) in the case of each such request for compensation, any time or period
commencing not more than ninety (90) days prior to the date on which such Lender
submits such request and (ii) any other time or period during which, because of
the unannounced retroactive application of such law, regulation, interpretation,
request or directive, such Lender could not have known that the resulting
reduction in return might arise. A certificate of such Lender setting forth the
amount to be paid to such Lender by the Borrower as a result of any event
referred to in this paragraph and supporting calculations in reasonable detail
shall be presumptively correct absent manifest error.
Section 2.14 Lender Tax Forms. On or prior to the Agreement Date, and
prior to the date on which any Person becomes a Lender hereunder, and from time
to time thereafter if required by Applicable Law due to a change in
circumstances or if reasonably requested by the Borrower or the Administrative
Agent (unless such Lender is unable to do so by reasons of change in Applicable
Law), each Lender organized under the laws of a jurisdiction outside the United
States shall provide the Administrative Agent and the Borrower with (i) an
accurate and duly completed United States Internal Revenue Service Form 4224 or
Form 1001, as the case may be, and Form W-8 or Form W-9, as the case may be, or
other applicable or successor form, certificate or document prescribed by the
United States Internal Revenue Service certifying as to such Lender's
entitlement to full exemption from United States withholding tax with respect to
all payments to be made to such Lender hereunder or under any Note or other Loan
Document, or, (ii) in the case of a Lender that is not a "bank" within the
meaning of Section 881(c)(3)(A) of the Code and cannot deliver either Internal
Revenue Service Form 1001 or 4224 pursuant to clause (i) above, (A) an accurate
and duly completed United States Internal Revenue Service Form W-8, or other
applicable or successor form, certificate or document prescribed by the United
States Internal Revenue Service certifying to such Lender's foreign status and
(B) a certificate certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to all payments
hereunder or under any Note or other Loan Document. In the event that the
Borrower withholds a portion of any payment hereunder or under any Note or other
Loan Document in accordance with this Section 2.14, the Borrower shall provide
evidence that such taxes of any nature whatsoever in respect of this Agreement,
any Loan or any Note or other Loan Document shall have been paid to the
appropriate taxing authorities by delivery to the Lender on whose account such
payment was made of the official tax receipts or notarized copies of such
receipts within thirty (30) days after payment of such tax. If the Borrower
fails to make any such payment when due, the Borrower shall indemnify the
Lenders for any incremental taxes, interest or penalties that may become payable
by any Lender as a result of any such failure. For any period with respect to
which a Lender has failed to provide the Borrower with the appropriate form
described above (other than if such failure is due to a change in Applicable Law
occurring subsequent to the date on which a form originally was required to be
provided), such Lender shall not be entitled to indemnification
44
with respect to withholding taxes imposed by the United States and the Borrower
shall be allowed to deduct from payments to such Lender hereunder and under any
Note or other Loan Document, the amount of any such withholding taxes paid by
the Borrower.
Section 2.15 Letters of Credit.
(a) Subject to the terms and conditions hereof, the Issuing Bank, on
behalf of the Lenders, and in reliance on the agreements of the Lenders set
forth in subsection (c) of this Section 2.15, hereby agrees to issue one (1) or
more Letters of Credit up to an aggregate face amount equal to the Available
Letter of Credit Commitment; provided, however, that the Issuing Bank shall not
issue any Letter of Credit unless the conditions precedent to the issuance
thereof set forth in Sections 3.1 and 3.3 hereof have been satisfied, and shall
have no obligation to issue any Letter of Credit if any Default then exists or
would be caused thereby or if, after giving effect to such issuance, the
Available Revolving Loan Commitment would be less than zero; and provided
further, however, that at no time shall the total Letter of Credit Obligations
outstanding hereunder exceed $10,000,000.00. Each Letter of Credit shall (1) be
denominated in U.S. dollars and (2) expire no later than the earlier to occur of
(A) five (5) Business Days prior to the Revolving Loan Maturity Date and (B) one
(1) year after its date of issuance.
(b) The Borrower may from time to time request that the Issuing Bank
issue a Letter of Credit. The Borrower shall execute and deliver to the
Administrative Agent and the Issuing Bank a Request for Issuance of Letter of
Credit for each Letter of Credit to be issued by the Issuing Bank, not later
than 12:00 noon (New York, New York time) on the fifth (5th) Business Day
preceding the date on which the requested Letter of Credit is to be issued, or
such shorter notice as may be acceptable to the Issuing Bank and the
Administrative Agent. Upon receipt of any such Request for Issuance of Letter of
Credit, subject to satisfaction of all conditions precedent thereto as set forth
in Section 3.3 hereof, the Issuing Bank shall process such Request for Issuance
of Letter of Credit and the certificates, documents and other papers and
information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby. The Issuing Bank shall, upon request, furnish a copy of such Letter of
Credit to any Lender following the issuance thereof.
(c) Each Lender irrevocably authorizes the Issuing Bank to issue,
reconfirm, reissue and extend each Letter of Credit in accordance with the terms
of this Agreement. The Issuing Bank hereby sells, and each other Lender hereby
purchases, on a continuing basis, a participation and an undivided interest in
(A) the obligations of the Issuing Bank to honor any draws under the Letters of
Credit issued pursuant to this Agreement and (B) the Indebtedness of the
Borrower to the Issuing Bank under this Agreement relating to each Letter of
Credit and any reimbursement or indemnification agreement relating to each
Letter of Credit, such participation being in the amount of such Lender's pro
rata share of such obligations and Indebtedness based on such Lender's
Commitment Ratio.
(d) Upon receipt of a draw certificate from the beneficiary of a Letter
of
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Credit, the Issuing Bank shall promptly notify the Administrative Agent and
the Administrative Agent shall notify the Borrower and each Lender, by telephone
or telecopy, of the amount of the requested draw and, in the case of each
Lender, such Lender's portion of such draw amount as calculated in accordance
with its Commitment Ratio.
(e) The Borrower hereby agrees to immediately reimburse the Issuing
Bank for amounts paid by the Issuing Bank in respect of draws under a Letter of
Credit issued at the Borrower's request. In order to facilitate such repayment,
the Borrower hereby irrevocably requests the Lenders, and the Lenders hereby
severally agree, on the terms and conditions of this Agreement (other than as
provided in Article 2 hereof with respect to the amounts of, the timing of
requests for, and the repayment of Advances hereunder and in Article 3 hereof
with respect to conditions precedent to Advances hereunder), with respect to any
drawing under a Letter of Credit prior to the occurrence of an event described
in clause (f) or (g) of Section 8.1 hereof, to make an Advance (which Advance
may be a Eurodollar Advance if the Borrower so requests in a timely manner or
may be converted to a Eurodollar Advance as provided in this Agreement) to the
Borrower under the Revolving Loan Commitment on each day on which a draw is made
under any Letter of Credit and in the amount of such draw, and to pay the
proceeds of such Advance directly to the Issuing Bank to reimburse the Issuing
Bank for the amount paid by it upon such draw. Each Lender shall pay its share
of such Advance by paying its portion of such Advance to the Administrative
Agent in accordance with Section 2.2(e) hereof and its Commitment Ratio, without
reduction for any set-off or counterclaim of any nature whatsoever and
regardless of whether any Default (other than with respect to an event described
in clauses (f) or (g) of Section 8.1 hereof) then exists or would be caused
thereby. If at any time that any Letters of Credit are outstanding, any of the
events described in clause (f) or (g) of Section 8.1 hereof shall have occurred
and be continuing, then each Lender shall, automatically upon the occurrence of
any such event and without any action on the part of the Issuing Bank, the
Borrower, the Administrative Agent or the Lenders, or any of them, be deemed to
have purchased an undivided participation in the face amount of all Letters of
Credit then outstanding in an amount equal to such Lender's Commitment Ratio
times the face amount of all Letters of Credit then outstanding, and each Lender
shall, notwithstanding such Event of Default, upon a drawing under any Letter of
Credit, immediately pay to the Administrative Agent for the account of the
Issuing Bank, in immediately available funds, the amount of such Lender's
participation (and the Issuing Bank shall deliver to such Lender a loan
participation certificate dated the date of the occurrence of such event and in
the amount of such Lender's Commitment Ratio times the face amount of all
Letters of Credit then outstanding). The obligation of each Lender to make
payments to the Administrative Agent, for the account of the Issuing Bank, in
accordance with this Section 2.15 shall be absolute and unconditional and no
Lender shall be relieved of its obligations to make such payments by reason of
non-compliance by any other Person with the terms of the Letter of Credit or for
any other reason other than the gross negligence or willful misconduct of the
Issuing Bank, as determined by a final order of a court of competent
jurisdiction. The Administrative Agent shall promptly remit to the Issuing Bank
the amounts so received from the Lenders. Any overdue amounts payable by the
Lenders to the Issuing Bank in respect of a draw under any Letter of Credit
shall bear interest, payable on demand, at the Federal Funds rate, plus one
percent (1%).
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(f) The Borrower agrees to reimburse the Lenders for any Advances made
pursuant to draws under any Letter of Credit, and each payment by the Borrower
in respect of its obligation to reimburse the Lenders under this Section 2.15
shall be made on the date of such Advance in lawful money of the United States
of America in immediately available funds. Any overdue amounts payable by the
Borrower under this Section 2.15 shall bear interest, payable on the earlier of
demand or the Revolving Loan Maturity Date, for each day from and including the
date payment thereof was due to, but excluding, the date of actual payment, at
the Default Rate.
(g) The Borrower agrees that any action taken or omitted to be taken by
the Issuing Bank in connection with any Letter of Credit, except for such
actions or omissions as shall constitute gross negligence or willful misconduct
on the part of the Issuing Bank as determined by a final order of a court of
competent jurisdiction, shall be binding on the Borrower as between the Borrower
and the Issuing Bank, and shall not result in any liability of the Issuing Bank
to the Borrower. The obligation of the Borrower to reimburse the Lenders for
Advances made to reimburse the Issuing Bank for draws under the Letter of Credit
shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances whatsoever,
including, without limitation, the following circumstances:
(i) Any lack of validity or enforceability of any Loan Document;
(ii) Any amendment or waiver of or consent to any departure from
any or all of the Loan Documents;
(iii) Any improper use which may be made of any Letter of Credit
or any improper acts or omissions of any beneficiary or transferee of any Letter
of Credit in connection therewith other than to the extent such use, action or
omission is the result of the gross negligence or willful misconduct of the
Issuing Bank as determined by a final order of a court of competent
jurisdiction;
(iv) The existence of any claim, set-off, defense or any right
which the Borrower may have at any time against any beneficiary or any
transferee of any Letter of Credit (or Persons for whom any such beneficiary or
any such transferee may be acting) or any Lender (other than the defense of
payment to such Lender in accordance with the terms of this Agreement) or any
other Person, whether in connection with any Letter of Credit, any transaction
contemplated by any Letter of Credit, this Agreement, any other Loan Document or
any unrelated transaction;
(v) Any statement or any other documents presented under any
Letter of Credit proving to be insufficient, forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate in any respect
whatsoever, provided that such payment shall not have constituted gross
negligence or willful misconduct of the Issuing Bank as determined by a final
order of a court of competent jurisdiction;
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(vi) The insolvency of any Person issuing any documents in
connection with any Letter of Credit;
(vii) Any breach of any agreement between the Borrower and any
beneficiary or transferee of any Letter of Credit, except to the extent such
breach results from the gross negligence or willful misconduct of the Issuing
Bank as determined by a final order of a court of competent jurisdiction;
(viii) Any irregularity in the transaction with respect to which
any Letter of Credit is issued, including any fraud by the beneficiary or any
transferee of such Letter of Credit, but excluding any irregularity resulting
from the gross negligence or willful misconduct of the Issuing Bank as
determined by a final order of a court of competent jurisdiction;
(ix) Any errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable, telegraph, wireless or
otherwise, whether or not they are in code, provided that the same shall not be
the result of the gross negligence or willful misconduct of the Issuing Bank as
determined by a final order of a court of competent jurisdiction;
(x) Any act, error, neglect or default, omission, insolvency or
failure of business of any of the correspondents of the Issuing Bank, provided
that the same shall not have constituted the gross negligence or willful
misconduct of the Issuing Bank as determined by a final order of a court of
competent jurisdiction;
(xi) Any other circumstances arising from causes beyond the
control of the Issuing Bank;
(xii) Payment by the Issuing Bank under any Letter of Credit
against presentation of a sight draft or a certificate which does not comply
with the terms of such Letter of Credit, provided that such payment shall not
have constituted gross negligence or willful misconduct of the Issuing Bank as
determined by a final order of a court of competent jurisdiction; and
(xiii) Any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, provided that such other circumstances or
happenings shall not have been the result of gross negligence or willful
misconduct of the Issuing Bank or any Lender, as determined by a final order of
a court of competent jurisdiction.
(h) If any change in Applicable Law (adopted after the Agreement Date),
any change in the interpretation or administration thereof (adopted after the
Agreement Date), or any change in compliance with Applicable Law by the Issuing
Bank or any Lender as a result of any official request or directive of any
governmental authority, central bank or comparable agency (whether or not having
the force of law) (issued after the Agreement Date) shall (i) impose,
48
modify or deem applicable any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System), special
deposit, capital adequacy, assessment or other requirements or conditions
against letters of credit issued by the Issuing Bank or against participations
by any other Lender in the Letters of Credit or (ii) impose on the Issuing Bank
or any other Lender any other condition regarding any Letter of Credit or any
participation therein, and the result of any of the foregoing in the reasonable
determination of the Issuing Bank or such Lender, as the case may be, is to
increase the cost to the Issuing Bank or such Lender of issuing or maintaining
any Letter of Credit or purchasing or maintaining any participation therein, as
the case may be, by an amount (which amount shall be reasonably determined)
deemed by the Issuing Bank or such Lender to be material, then, within ten (10)
days after demand by the Issuing Bank or such Lender, the Borrower shall
promptly pay the Issuing Bank or such Lender, as the case may be, such
additional amount or amounts as shall be sufficient to compensate the Issuing
Bank or such Lender for such increased costs, together with interest on such
amount from the tenth (10th) day after the date of demand, until payment in full
thereof at the Default Rate. A certificate of the Issuing Bank or such Lender
setting forth the amount, and in reasonable detail the basis for the Issuing
Bank or such Lender's determination of such amount, to be paid to the Issuing
Bank or such Lender by the Borrower as a result of any event referred to in this
paragraph shall be presumptively correct.
(i) Each Lender shall be responsible (to the extent not reimbursed by
the Borrower) for its pro rata share (based on such Lender's Commitment Ratio)
of any and all reasonable out-of-pocket costs, expenses (including, without
limitation, reasonable legal fees) and disbursements which may be incurred or
made by the Issuing Bank in connection with the collection of any amounts due
under, the administration of, or the presentation or enforcement of any rights
conferred by any Letter of Credit, the Borrower's or any guarantor's obligations
to reimburse or otherwise, except that no Lender shall be liable to the Issuing
Bank for any portion of such out-of-pocket costs, expenses (including, without
limitation, reasonable legal fees) and disbursements from the gross negligence
or willful misconduct of the Issuing Bank, as determined by a final,
non-appealable judicial order of a court of competent jurisdiction. In the event
the Borrower shall fail to pay such expenses of the Issuing Bank within ten (10)
days after demand for payment by the Issuing Bank, each Lender shall thereupon
pay to the Issuing Bank its pro rata share (based on such Lender's Commitment
Ratio) of such expenses within five (5) days from the date of the Issuing Bank's
notice to the Lenders of the Borrower's failure to pay; provided, however, that
if the Borrower or any guarantor shall thereafter pay such expense, the Issuing
Bank will repay to each Lender the amounts received from such Lender hereunder.
(j) The Borrower agrees that each Base Rate Advance by the Lenders to
reimburse the Issuing Bank for draws under any Letter of Credit, shall, for all
purposes hereunder, be deemed to be a Base Rate Advance under the Revolving Loan
Commitment to the Borrower and shall be payable and bear interest in accordance
with all other Loans to the Borrower.
(k) The Borrower will indemnify and hold harmless the Administrative
Agent, the Issuing Bank and each other Lender and each of their respective
employees, representatives,
49
officers and directors from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable attorneys' fees, but excluding taxes) which may be
imposed on, incurred by or asserted against the Administrative Agent, the
Issuing Bank or any such other Lender in any way relating to or arising out of
the issuance of a Letter of Credit; provided, however, that the Borrower shall
not be liable to the Administrative Agent, the Issuing Bank or any such Lender
for any portion of such claims, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses, or disbursements
resulting from the gross negligence or willful misconduct of the Administrative
Agent, the Issuing Bank or such Lender, as the case may be, as determined by a
final order of a court of competent jurisdiction. This Section 2.15(k) shall
survive termination of this Agreement.
(l) The Issuing Bank may resign as Issuing Bank upon sixty (60) days'
prior written notice to the Administrative Agent, the Lenders and the Borrower.
If the Issuing Bank shall resign as Issuing Bank under this Agreement, then the
Borrower shall appoint from among the Lenders a successor issuer of Letters of
Credit, whereupon such successor issuer shall succeed to the rights, powers and
duties of the Issuing Bank, and the term "Issuing Bank" shall mean such
successor issuer effective upon such appointment. At the time such resignation
shall become effective, the Borrower shall pay to the resigning Issuing Bank all
accrued and unpaid fees pursuant to Section 2.4(b)(i) hereof. The acceptance of
any appointment as the Issuing Bank hereunder by a successor Lender shall be
evidenced by an agreement entered into by such successor, in a form satisfactory
to the Borrower and the Administrative Agent and, from and after the effective
date of such agreement, such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan
Documents. After the resignation of the Issuing Bank hereunder, the resigning
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents with respect to Letters of Credit issued by it prior to such
resignation, but shall not be required to issue additional Letters of Credit.
After any retiring Issuing Bank's resignation as Issuing Bank, the provisions of
this Agreement relating to the Issuing Bank shall inure to its benefit as to any
actions taken or omitted to be taken by it (i) while it was Issuing Bank under
this Agreement or (ii) at any time with respect to Letters of Credit issued by
such Issuing Bank.
ARTICLE 3 Conditions Precedent
Section 3.1 Conditions Precedent to Effectiveness of Agreement. The
obligation of the Lenders to undertake the Commitments and the effectiveness of
this Agreement are subject to the prior or contemporaneous fulfillment of each
of the following conditions:
(a) The Administrative Agent and the Lenders shall have received, in
form
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and substance satisfactory to them, each of the following:
(i) this Agreement duly executed;
(ii) duly executed Notes;
(iii) duly executed confirmations of the Loan Documents (as
defined in the Prior Loan Agreement) by the Borrower, the Parent and the
Borrower's Subsidiaries, including confirmation of: (A) Borrower's Pledge
Agreement, (B) Borrower's Security Agreement, (C) Subsidiary Pledge Agreements,
(D) Subsidiary Security Agreements, (E) Subsidiary Guaranties, (F) Parent Pledge
Agreement, (G) Parent Guaranty Agreement, (H) Assignment of Rights, and (I) loan
certificate for each of the Parent, the Borrower and each Subsidiary of the
Borrower (including all License Subs);
(iv) legal opinions of (w) ▇▇▇▇▇ & ▇▇▇▇ LLP, special New York
counsel to the Parent, the Borrower and its Subsidiaries, (x) Young, Williams,
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, P.A., local counsel to the Parent, the Borrower and its
Subsidiaries, (y) ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special Texas counsel to the Parent, the
Borrower and its Subsidiaries, and (z) Lukas, Nace, ▇▇▇▇▇▇▇▇▇ & Sachs, special
FCC counsel to the Parent, the Borrower and its Subsidiaries, each addressed to
each of the Lenders and the Administrative Agent, and dated as of the Agreement
Date;
(v) copies of insurance binders or certificates covering the
assets of the Borrower and its Subsidiaries and otherwise meeting the
requirements of this Agreement;
(vi) duly executed Certificate of Financial Condition for the
Borrower and its Subsidiaries on a consolidated basis, given by the chief
financial officer of the Borrower, and such other information pertaining to the
capital and corporate structure of the Borrower or any of its Subsidiaries as
the Administrative Agent or the Lenders shall request;
(vii) lien and judgment search results with respect to the
Borrower;
(viii) delivery to the Administrative Agent of all possessory
collateral, including, without limitation, any pledged notes or pledged stock;
(ix) duly executed Performance Certificate for the Borrower and
its Subsidiaries;
(x) duly executed Master Assignment and Assumption Agreement in
respect of the Prior Loan Agreement; and
(xi) all such other documents as the Administrative Agent or any
Lender may reasonably request, certified by an appropriate governmental official
or an Authorized Signatory if so requested.
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(b) The Administrative Agent and the Lenders shall have received
evidence satisfactory to them that all Necessary Authorizations, including,
without limitation, all necessary consents to the closing of this Agreement and
the other Loan Documents, have been obtained or made, are in full force and
effect and are not subject to any pending or, to the knowledge of the Borrower,
threatened reversal or cancellation, and the Administrative Agent and the
Lenders shall have received a certificate of an Authorized Signatory so stating.
(c) The Borrower shall have certified to the Administrative Agent and
the Lenders that each of the representations and warranties in Article 4 hereof
and each other Loan Document are true and correct as of the Agreement Date and
that no Default or Event of Default then exists or is continuing.
(d) There shall not exist as of the Agreement Date, any action, suit,
proceeding or investigation pending against, or, to the knowledge of the
Borrower, threatened against or in any manner relating adversely to, the
Borrower, any of its Subsidiaries, any of their respective properties or the
transactions contemplated hereby, in each case, which reasonably could be
expected to have a Materially Adverse Effect.
(e) The Borrower has entered into (i) supply contracts with Qualified
Vendors for the build out of the Borrower's Cellular System and the acquisition
of related equipment, and, to the extent material, such contracts shall be
reasonably satisfactory to the Lenders and (ii) such other agreements with third
parties as may be reasonably necessary to the conduct of its proposed operations
in accordance with its business plan.
Section 3.2 Conditions Precedent to Each Advance. The obligation of the
Lenders to make each Advance which, if funded, would increase the aggregate
principal amount of Loans outstanding after the Agreement Date, is subject to
the fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower under
this Agreement and the other Loan Documents (including, without limitation, all
representations and warranties with respect to the Borrower's Subsidiaries),
which, pursuant to Section 4.2 hereof, are made at and as of the time of such
Advance (except to the extent previously fulfilled in accordance with the terms
hereof and to the extent relating specifically to a specific prior date), shall
be true and correct at such time in all material respects, both before and after
giving effect to the application of the proceeds of such Advance, and after
giving effect to any updates to information provided to the Lenders in
accordance with the terms of such representations and warranties, and no Default
hereunder shall then exist or be caused thereby;
(b) The Administrative Agent and the Lenders shall have received a
certificate of the Borrower stating that there is no Default or Event of
Default, both before and after giving effect to the proposed Advance of the
Loans hereunder;
52
(c) The Administrative Agent shall have received a duly executed
Request for Advance, a Use of Proceeds Letter and a Performance Certificate;
(d) If such Advance is in connection with an Acquisition, each of the
Administrative Agent and the Lenders shall have received all such other
certificates, reports, statements, opinions of counsel or other documents as the
Administrative Agent or any Lender may reasonably request; and
(e) With respect to any Advance in any way relating to any Acquisition
or the formation of any Subsidiary which is permitted hereunder, the
Administrative Agent and the Lenders shall have received such documents and
instruments, if any, relating to the Acquisition, or the formation of such new
Subsidiary, as are described in Sections 5.13 and 7.6 hereof or otherwise
required herein.
The acceptance of proceeds of any Advance which would increase the aggregate
principal amount of Loans outstanding shall be deemed to be a representation and
warranty by the Borrower as to compliance with this Section 3.2 on the date any
such Loan is made.
Section 3.3 Conditions Precedent to Issuance of Letters of Credit. The
obligation of the Issuing Bank to issue each Letter of Credit hereunder is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with such issuance:
(a) All of the representations and warranties under this Agreement and
the other Loan Documents (including, without limitation, all representations and
warranties with respect to the Borrower's Subsidiaries), which, pursuant to
Section 4.2 hereof, are made at and as of the time of the issuance of such
Letter of Credit (except to the extent previously fulfilled in accordance with
the terms hereof and to the extent relating specifically to a specific prior
date), shall be true and correct at such time in all material respects, both
before and after giving effect to the issuance of such Letter of Credit, and
after giving effect to any updates to information provided to the Lenders in
accordance with the terms of such representations and warranties;
(b) There shall not exist, on the date of the issuance of such Letter
of Credit and after giving effect thereto, a Default hereunder and the
Administrative Agent shall have received a Request for Issuance of a Letter of
Credit so certifying; and
(c) Each of the Administrative Agent, the Issuing Bank and each of the
Lenders shall have received all such other certificates, reports, statements or
other documents as any of them may reasonably request.
53
ARTICLE 4 Representations and Warranties
Section 4.1 Representations and Warranties. The Parent and the Borrower
hereby represent and warrant, upon the Agreement Date, and at all times
thereafter as required pursuant to the terms hereof, in favor of the
Administrative Agent and each Lender that:
(a) Organization; Ownership; Power; Qualification. Each of the Borrower
and the Parent is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation. Each of the Borrower
and the Parent has the corporate power and authority to own its properties and
to carry on its business as now being conducted. Each Subsidiary of the Borrower
is a corporation, partnership or limited liability company duly organized,
validly existing and in good standing under the laws of the state of its
incorporation or formation, as the case may be, and has the corporate, limited
liability company or partnership power and authority, as the case may be, to own
its properties and to carry on its business as now being conducted. The Parent
has no Subsidiaries other than the Borrower and its Subsidiaries. The Borrower,
each of its Subsidiaries and the Parent are duly qualified, in good standing and
authorized to do business in each jurisdiction in which the character of their
respective properties or the nature of their respective businesses requires such
qualification or authorization, except to the extent a failure to do so could
not reasonably be expected to have a Materially Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the corporate power
and has taken all necessary corporate action to authorize it to borrow
hereunder, and each of the Borrower and the Parent has the corporate power and
has taken all necessary corporate action to execute, deliver and perform this
Agreement and each of the other Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated hereby and thereby. This Agreement has been duly executed and
delivered by the Borrower and the Parent and is, and each of the other Loan
Documents to which the Borrower and the Parent is party is, a legal, valid and
binding obligation of the Borrower or the Parent, as applicable, enforceable
against the Borrower or the Parent, as applicable, in accordance with its terms,
subject to the following qualifications: (i) an order of specific performance
and an injunction are discretionary remedies and, in particular, may not be
available where damages are considered an adequate remedy at law and (ii)
applicable bankruptcy, insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of creditors' rights generally
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of the Borrower and the Parent).
(c) Subsidiaries: Authorization; Enforceability. The Borrower's
Subsidiaries and the Borrower's direct and indirect ownership thereof as of the
Agreement Date are as set forth on Schedule 2 attached hereto, and to the extent
such Subsidiaries are corporations, the Borrower has the unrestricted right to
vote the issued and outstanding shares of its Subsidiaries
54
shown thereon and such shares of such Subsidiaries have been duly authorized and
issued and are fully paid and nonassessable. Each Subsidiary of the Borrower has
the corporate, partnership or limited liability company power and has taken all
necessary corporate, partnership or limited liability company action to
authorize it to execute, deliver and perform each of the Loan Documents to which
it is a party in accordance with their respective terms and to consummate the
transactions contemplated by this Agreement and by such Loan Documents. Each of
the Loan Documents to which any Subsidiary of the Borrower is party is a legal,
valid and binding obligation of such Subsidiary enforceable against such
Subsidiary in accordance with its terms, subject to the following
qualifications: (i) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where damages
are considered an adequate remedy at law and (ii) applicable bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of any such Subsidiary).
Except as set forth on Schedule 2 attached hereto, the Borrower's ownership
interest in each of its Subsidiaries represents a direct or indirect controlling
interest of such Subsidiary for purposes of directing or causing the direction
of the management and policies of each Subsidiary.
(d) Compliance with Other Loan Documents and Contemplated Transactions.
The execution, delivery and performance, in accordance with their respective
terms, by the Parent and the Borrower of this Agreement and the Notes, and by
the Parent, the Borrower and the Borrower's Subsidiaries of each of the other
Loan Documents to which they are respectively party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not (i) require
any consent or approval, governmental or otherwise, not already obtained, (ii)
violate any Applicable Law respecting the Parent, the Borrower or any Subsidiary
of the Borrower, (iii) conflict with, result in a breach of, or constitute a
default under the certificate or articles of incorporation or certificate of
formation, or by-laws, limited partnership agreement or operating agreement,
each as amended, as the case may be, of the Parent, the Borrower or of any
Subsidiary of the Borrower, or (iv) conflict with, result in a breach of, or
constitute a default under any material indenture, agreement, or other
instrument, including, without limitation, the Licenses, to which the Parent,
the Borrower or any of the Borrower's Subsidiaries is a party or by which any of
them or their respective properties may be bound, or (v) result in or require
the creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by the Parent, the Borrower or any of the Borrower's
Subsidiaries, except for Permitted Liens.
(e) Business. The Borrower, together with its Subsidiaries, is engaged
in the business of building, owning and operating a wireless communications
network covering POPs primarily throughout the south-central United States and
other related businesses.
(f) Licenses Except as set forth on Schedule 1 attached hereto, the
Licenses have been duly issued, are in full force and effect (excluding the
Give-back Licenses) and, as of the Agreement Date, are held by a License Sub as
set forth on Schedule 1 attached hereto. The Parent, the Borrower and the
Borrower's Subsidiaries are in compliance in all material respects with all of
the provisions thereof. Except as set forth on Schedule 1, neither any License
nor any
55
Necessary Authorization is the subject of any pending or, to the best of the
Parent's and the Borrower's knowledge, threatened revocation, which could
reasonably be expected to have a Materially Adverse Effect.
(g) Compliance with Applicable Law. The Parent, the Borrower and the
Borrower's Subsidiaries are in compliance with all Applicable Law except to the
extent that any noncompliance could not reasonably be expected to have a
Materially Adverse Effect.
(h) Title to Assets. The Parent, the Borrower and the Borrower's
Subsidiaries have good, legal and marketable title to, or a valid leasehold
interest in, all the Parent's, the Borrower's and such Subsidiaries' material
assets, respectively. None of the properties or assets of the Parent, the
Borrower or any of the Borrower's Subsidiaries is subject to any Liens, except
for Permitted Liens. Except for financing statements evidencing Permitted Liens,
no financing statement under the Uniform Commercial Code as in effect in any
jurisdiction and no other filing which names the Parent, the Borrower or any of
the Borrower's Subsidiaries as debtor or which covers or purports to cover any
of the assets of the Parent, the Borrower or any of the Borrower's Subsidiaries
is currently effective and on file in any state or other jurisdiction, and none
of the Parent, the Borrower or any of the Borrower's Subsidiaries has signed any
such financing statement or filing or any security agreement authorizing any
secured party thereunder to file any such financing statement or filing.
(i) Litigation. There is no action, suit, proceeding or investigation
pending against, or, to the best of the Parent's or the Borrower's knowledge,
threatened against or in any other manner relating materially adversely to, the
Parent, the Borrower or any of the Borrower's Subsidiaries or, any of their
respective properties, including, without limitation, the Licenses, in any court
or before any arbitrator of any kind or before or by any governmental body
(including, without limitation, the FCC), except as set forth on Schedule 4
attached hereto (as such schedule may be updated with the consent of the
Required Lenders from time to time) or which could reasonably be expected to
have a Materially Adverse Effect. No such action, suit, proceeding or
investigation (i) calls into question the validity of this Agreement or any
other Loan Document or (ii) individually or collectively involves the
possibility of any judgment or liability not fully covered by insurance which,
if determined adversely to the Parent, the Borrower or any of the Borrower's
Subsidiaries, could reasonably be expected to have a Materially Adverse Effect.
(j) Taxes. All federal, state and other income and other material tax
returns of the Parent, the Borrower and each of the Borrower's Subsidiaries
required by law to be filed have been duly filed and all federal, state and
other taxes, including, without limitation, withholding taxes, assessments and
other governmental charges or levies required to be paid by the Parent, the
Borrower or any of the Borrower's Subsidiaries or imposed upon the Parent, the
Borrower or any of the Borrower's Subsidiaries or any of their respective
properties, income, profits or assets, which are due and payable, have been
paid, except any such taxes (i) (x) the payment of which the Parent, the
Borrower or any of the Borrower's Subsidiaries is diligently contesting in good
faith by appropriate proceedings, (y) for which adequate reserves have been
provided on the books of the Parent, the Borrower or the Subsidiary of the
Borrower involved
56
and (z) as to which no Lien other than a Permitted Lien has attached or (ii)
which may result from audits not yet conducted. The charges, accruals and
reserves on the books of the Parent, the Borrower and each of the Borrower's
Subsidiaries, as applicable, in respect of taxes are, in the judgment of the
Parent and the Borrower, adequate.
(k) Financial Statements. The Parent and the Borrower have furnished or
caused to be furnished to the Administrative Agent and the Lenders unaudited pro
forma consolidated balance sheets of the Borrower, the Subsidiaries of the
Borrower and the Parent , dated as of September 30, 1998, which, together with
other financial statements furnished to the Lenders subsequent to the Agreement
Date have been prepared in accordance with GAAP and present fairly in all
material respects the financial position of the Parent, the Borrower and the
Borrower's Subsidiaries on a consolidated and consolidating basis, as the case
may be, on and as at such dates and the results of operations for the periods
then ended (subject, in the case of unaudited financial statements, to normal
year-end and audit adjustments). None of the Parent, the Borrower or any of the
Borrower's Subsidiaries has any material liabilities, contingent or otherwise,
other than as disclosed in the financial statements most recently delivered on
the Agreement Date or pursuant to Section 6.1 or 6.2 hereof, and there are no
material unrealized losses of the Parent, the Borrower or any of the Borrower's
Subsidiaries and no material anticipated losses of the Parent, the Borrower or
any of the Borrower's Subsidiaries other than those which have been previously
disclosed in writing to the Administrative Agent and the Lenders and identified
as such.
(l) No Material Adverse Change. Since September 30, 1998, there has
occurred no event, condition, action, omission, status, situation or other
change which has had or which could reasonably be expected to have a Materially
Adverse Effect.
(m) ERISA. The Borrower and each of its Subsidiaries and each of their
respective Plans are in compliance with ERISA and the Code, except to the extent
a failure to do so could not reasonably be expected to have a Materially Adverse
Effect, and neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any accumulated funding deficiency with respect to
any such Plan within the meaning of ERISA or the Code. The Borrower, each of its
Subsidiaries, and each other ERISA Affiliate have complied with all requirements
of COBRA, except to the extent a failure to do so could not reasonably be
expected to have a Materially Adverse Effect. Neither the Borrower nor any of
its Subsidiaries has made any promises of retirement or other benefits to
employees, except as set forth in the Plans, in written agreements with such
employees, or in the Borrower's employee handbook and memoranda to employees.
Neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any material liability to PBGC in connection with any
such Plan. The assets of each such Plan which is subject to Title IV of ERISA
are sufficient to provide the benefits under such Plan, the payment of which
PBGC would guarantee if such Plan were terminated, and such assets are also
sufficient to provide all other "benefit liabilities" (within the meaning of
Section 4041 of ERISA) due under the Plan upon termination. No Reportable Event
has occurred and is continuing with respect to any such Plan. No such Plan or
trust created thereunder, or party in interest (as defined in Section 3(14) of
ERISA), or any fiduciary (as
57
defined in Section 3(21) of ERISA), has engaged in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject such Plan or any other Plan of the Borrower or any of its
Subsidiaries, any trust created thereunder, or any such party in interest or
fiduciary, or any party dealing with any such Plan or any such trust, to the tax
or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code. Neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, is or has been obligated to make any payment to a
Multiemployer Plan.
(n) Compliance with Regulations T, U and X. Neither the Borrower nor
any of its Subsidiaries is engaged principally in, or has as one of its
important activities, the business of extending credit for the purpose of
purchasing or carrying, and neither the Borrower nor any of its Subsidiaries
owns or presently intends to acquire, any "margin security" or "margin stock"
(herein called "margin stock") as defined in Regulations T, U, and X (12 C.F.R.
Parts 220, 221 and 224) of the Board of Governors of the Federal Reserve System
(the "Regulations"). None of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of the
Regulations. Neither the Borrower, its Subsidiaries, nor any bank acting on
their behalf has taken, caused to be authorized or taken, or will take any
action which might cause this Agreement or the Notes to violate the Regulations
or any other regulation of the Board of Governors of the Federal Reserve System
or to violate the applicable provisions of the Securities Exchange Act of 1934,
in each case as now in effect or as the same may hereafter be in effect. If so
requested by any Lender, the Borrower and its Subsidiaries will furnish such
Lender with (i) a statement or statements in conformity with the requirements of
Federal Reserve Form U-1 referred to in Regulation U of said Board of Governors
and (ii) other documents evidencing its compliance with the margin regulations,
including, without limitation, an opinion of counsel in form and substance
satisfactory to such Lender. Neither the making of the Loans nor the use of
proceeds thereof will violate, or be inconsistent with, the provisions of the
Regulations.
(o) Investment Company Act. None of the Parent, the Borrower or any of
the Borrower's Subsidiaries is required to register under the provisions of the
Investment Company Act of 1940, as amended, and neither the entering into or
performance by the Parent, the Borrower and the Borrower's Subsidiaries of this
Agreement and the Loan Documents nor the issuance of the Notes violates any
provision of such Act or requires any consent, approval or authorization of or
registration with, the Securities and Exchange Commission or any other
governmental or public body or authority pursuant to any provisions of such Act.
(p) Governmental Regulation. None of the Parent, the Borrower or any of
the Borrower's Subsidiaries is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with, any
federal, state or local regulatory authority in connection with the execution
and delivery of this Agreement or any other Loan Document (other than filings
required to be made under the Security Documents), in either case which if not
obtained or made
58
would have a Materially Adverse Effect. None of the Parent, the Borrower or any
of the Borrower's Subsidiaries is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with, any
federal, state or local regulatory authority in connection with the performance,
in accordance with their respective terms, of this Agreement or any other Loan
Document (other than filings required to be made under the Security Documents),
in either case which if not obtained or made would have a Materially Adverse
Effect.
(q) Absence of Default, etc. The Parent, the Borrower and the
Borrower's Subsidiaries are in compliance in all respects with all of the
provisions of their respective certificates or articles of incorporation,
organization or formation and by-laws, partnership agreements and operating
agreements, as the case may be, and no action, event, condition or situation has
occurred or failed to occur (including, without limitation, any matter which
could create a Default hereunder by cross- default) which has not been remedied
or waived, the occurrence or non-occurrence of which constitutes, (i) a Default
or (ii) a material default by the Parent, the Borrower or any of the Borrower's
Subsidiaries, or an action, event, condition or situation giving rise to any put
right or other prepayment right of any holder of Indebtedness, under any
indenture, agreement or other instrument relating to Indebtedness of the Parent,
the Borrower or any of the Borrower's Subsidiaries (other than as set forth on
Schedule 3 attached hereto), or a default under any License (which Default could
reasonably be expected to result in an Event of Default under Section 8.1(l)
hereof), or a default under any judgment, decree or order to which the Parent,
the Borrower or any of the Borrower's Subsidiaries is a party or by which the
Parent, the Borrower or any of the Borrower's Subsidiaries or any of their
respective properties may be bound or affected, except to the extent any of the
foregoing in this (ii) could not reasonably be expected to have a Materially
Adverse Effect. None of the Parent, the Borrower or any of the Borrower's
Subsidiaries is a party to or bound by any contract or agreement continuing
after the Agreement Date, or bound by any Applicable Law, the performance of
which or the compliance with which, as applicable, could reasonably be expected
to have a Materially Adverse Effect or could reasonably be expected to result in
the loss of any License (other than any Give-back License) issued by the FCC.
(r) Accuracy and Completeness of Information. All material information,
reports, and other papers relating to the Parent, the Borrower or any of the
Borrower's Subsidiaries furnished by or on behalf of the Parent, the Borrower or
any of the Borrower's Subsidiaries to the Administrative Agent or the Lenders
were, at the time furnished, true, complete and correct in all material respects
to the extent necessary to give the Administrative Agent and the Lenders true
and accurate knowledge of the subject matter thereof in light of the
circumstances under which they were made; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time. No fact or situation is currently known to the Parent or
the Borrower which has had or which could reasonably be expected to have a
Materially Adverse Effect.
(s) Insurance. As of the Agreement Date Schedule 8 sets forth a
description
59
of all insurance maintained by or on behalf of the Parent, the Borrower and the
Borrower's Subsidiaries as of the Agreement Date. As of the Agreement Date, all
premiums in respect of such insurance have been paid.
(t) Labor Matters. As of the Agreement Date, there are no strikes,
lockouts or slowdowns against the Borrower or any Subsidiary pending or, to the
knowledge of the Borrower, threatened. With such exceptions as could not
reasonably be expected to result in a Materially Adverse Effect, (i) the hours
worked by and payments made to employees of the Borrower and the Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters and
(ii) all payments due from the Borrower or any Subsidiary, or for which any
claim may be made against the Borrower or any Subsidiary, on account of wages
and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or such Subsidiary.
(u) Priority. The Security Interest is a valid and perfected first
priority security interest in the Collateral in favor of the Administrative
Agent, for the benefit of itself and the Lenders, securing, in accordance with
the terms of the Security Documents, the Obligations, and the Collateral is
subject to no Liens other than Permitted Liens. The Liens created by the
Security Documents are enforceable as security for the Obligations in accordance
with their terms with respect to the Collateral subject to the following
qualifications: (i) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where damages
are considered an adequate remedy at law; and (ii) applicable bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Parent, the
Borrower or any of the Borrower's Subsidiaries, as the case may be).
(v) Indebtedness for Money Borrowed. Except as described on Schedule 6
attached hereto and other than the Advances, if any, none of the Parent, the
Borrower, or any of the Borrower's Subsidiaries has outstanding, as of the
Agreement Date, any Indebtedness for Money Borrowed.
(w) Solvency. As of the Agreement Date and after giving effect to the
transactions contemplated by the Loan Documents: (i) the property of the
Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the
Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts beyond its ability to pay such debts as
they mature; and (iv) the present fair salable value of the assets of the
Borrower will be greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section, "debt" means any liability on a claim, and "claim"
means (a) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (b) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is
60
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
(x) Patents, Trademarks, Copyrights, etc. The Borrower and each of its
Subsidiaries owns, possesses, or has the right to use all material patents,
trademarks, trademark rights, trade names, trade name rights, service marks and
copyrights, and rights with respect thereof, necessary to conduct its respective
business as now conducted, without known conflict with any patent, trademark,
trade name, service ▇▇▇▇, or copyright of any other Person, and in each case,
subject to no mortgage, pledge, lien, lease, encumbrance, charge, security
interest, title retention agreement, or option. All such patents, trademarks,
trademark rights, trade names, trade name rights, service marks and copyrights
are listed as of the Agreement Date on Schedule 1 attached hereto and are in
full force and effect, the holder thereof is in full compliance in all material
respects with all of the provisions thereof, and no such asset or agreement is
subject to any pending or threatened attack or revocation.
(y) Year 2000 Compliance. Each of the Parent and the Borrower has (i)
initiated a review and assessment of all areas within the Parent's, the
Borrower's and each of the Borrower's Subsidiaries' respective business and
operations (including those affected by suppliers, vendors and customers) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Parent, the Borrower or any of the Borrower's
Subsidiaries (or suppliers, vendors and customers) may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. Based on the foregoing,
the Parent and the Borrower believe that all computer applications (including
those of its suppliers, vendors and customers) that are material to the
Parent's, the Borrower's or any of the Borrower's Subsidiaries' business and
operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 Compliant"), except to the extent that a failure to do
so could not reasonably be expected to have a Materially Adverse Effect.
(z) Parent Assets. As of the Agreement Date, the Parent has no assets
other than the Capital Stock of the Borrower, investments in the Borrower and/or
the Borrower's Subsidiaries permitted hereunder, rights under the Securities
Purchase Agreement, rights under the Stockholders Agreement, and the Bid Equity
Commitments, so long as the proceeds of such Bid Equity Commitments are disposed
of in accordance with Section 5.17(b) hereof.
(aa) Parent Business. The Parent is engaged in no business other than
holding the assets described in Section 4.1(z) hereof, incurring Indebtedness
permitted under Section 7.1 hereof and incurring the Bid Equity Commitments, so
long as the proceeds of such Bid Equity Commitments are disposed of in
accordance with Section 5.17(b) hereof.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct, at and as of
the Agreement Date, on the date of each
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Advance and on the date of issuance of each Letter of Credit, which, if funded,
would increase the aggregate principal amount of the Loans outstanding, except
to the extent previously fulfilled in accordance with the terms hereof and to
the extent relating specifically to the Agreement Date. All representations and
warranties made under this Agreement and the other Loan Documents shall survive,
and not be waived by, the execution hereof by the Lenders and the Administrative
Agent, any investigation or inquiry by any Lender or the Administrative Agent,
or the making of any Advance under this Agreement.
ARTICLE 5 General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Lenders have an obligation to fund Advances hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the Required
Lenders, or such greater number of Lenders as may be expressly provided herein,
shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. Except as
permitted under Section 7.4(b) hereof, the Parent and the Borrower will, and
will cause each of the Borrower's Subsidiaries to:
(a) preserve and maintain its existence, and its material rights,
franchises, licenses and privileges in the state of its incorporation or
formation, as the case may be; and
(b) qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization, except for qualifications
and authorizations the lack of which, singly or in the aggregate, has not had
and, insofar as can reasonably be foreseen, will not have a Materially Adverse
Effect on the Parent, the Borrower and the Borrower's Subsidiaries taken as a
whole.
Section 5.2 Business; Compliance with Applicable Law. The Parent and the
Borrower will, and will cause each of the Borrower's Subsidiaries to, (a) engage
in the business of building and operating a wireless communications network and
related businesses, and (b) comply with the requirements of all Applicable Law,
except where the failure to do so individually or in the aggregate could not
reasonably be expected to have a Materially Adverse Effect.
Section 5.3 Maintenance of Properties. The Parent and the Borrower will, and
will cause each of the Borrower's Subsidiaries to, maintain or cause to be
maintained in the ordinary course of business in good repair, working order and
condition (reasonable wear and tear excepted) all properties used in their
respective businesses (whether owned or held under lease), other than obsolete
equipment or unused assets, and from time to time make or cause to be made all
needed and appropriate repairs (it being understood that the Borrower shall be
deemed to be
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in compliance with this Section 5.3 if, in connection with any damage to its
properties covered by insurance, the Borrower is diligently pursuing the repair
or replacement of such damaged assets), renewals, replacements, additions,
betterments and improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Parent and the
Borrower will, and will cause each of the Borrower's Subsidiaries to, on a
consolidated and consolidating basis, maintain a system of accounting
established and administered in accordance with GAAP, keep adequate records and
books of account in which complete entries will be made in accordance with GAAP
and reflecting all transactions required to be reflected by GAAP, and keep
accurate and complete records of their respective properties and assets. The
Parent, the Borrower and the Borrower's Subsidiaries will maintain a fiscal year
ending on December 31st.
Section 5.5 Insurance. The Parent and the Borrower will, and will cause each
of the Borrower's Subsidiaries to:
(a) maintain insurance, including, but not limited to, business
interruption coverage and public liability coverage insurance, from responsible
companies in such amounts and against such risks to the Parent, the Borrower and
each of the Borrower's Subsidiaries as is usual and customary for similarly
situated companies engaged in the cellular telephone and wireless communications
industry and as is reasonably acceptable to the Administrative Agent (including,
without limitation, larceny, embezzlement or other criminal misappropriation
insurance);
(b) keep their respective assets insured by insurers on terms and in a
manner acceptable to the Administrative Agent against loss or damage by fire,
theft, burglary, loss in transit, explosions and hazards insured against by
extended coverage, in amounts which are usual and customary for the cellular
telephone and wireless communications industry and reasonably acceptable to the
Administrative Agent, all premiums thereon to be paid by the Parent, the
Borrower and the Borrower's Subsidiaries; and
(c) require that each insurance policy provide for at least thirty (30)
days' prior written notice to the Administrative Agent of any termination of or
proposed cancellation or nonrenewal of such policy, and name the Administrative
Agent as additional named lender loss payee and, as appropriate, additional
insured, to the extent of the Obligations.
In addition to the foregoing, in the event that any insurer distributes
insurance proceeds, a condemnation award, or any other disbursement in
connection with any of the foregoing insurance policies, the Administrative
Agent is authorized to collect such distribution and, if received by the Parent,
the Borrower or any of the Borrower's Subsidiaries, such distribution shall be
paid over to the Administrative Agent; provided that (i) if the aggregate
distribution (other than any proceeds of business interruption insurance) are
less than $3,000,000, such distribution shall be paid over to the Borrower
unless an Event of Default has occurred and is continuing, and (ii) all proceeds
of business income insurance shall be paid over to the Borrower
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unless an Event of Default has occurred and is continuing. Any such distribution
retained by or paid over to the Administrative Agent shall be held by the
Administrative Agent and released from time to time to pay the costs of
repairing, restoring or replacing the affected property in accordance with the
terms of the applicable Loan Document, subject to the provisions of the
applicable Loan Document regarding application of such distribution during an
Event of Default. If any such distribution retained by or paid over to the
Administrative Agent as provided above continue to be held by the Administrative
Agent on the date that is one hundred eighty (180) days after the occurrence of
the event resulting in such distribution, then such distribution shall be
applied to prepay the Loans as set forth in Section 8.3 hereof.
Section 5.6 Payment of Taxes and Claims. The Parent and the Borrower will,
and will cause each of the Borrower's Subsidiaries to, pay and discharge all
income and other material taxes, including, without limitation, withholding
taxes, assessments and governmental charges or levies required to be paid by
them or imposed upon them or their income or profits or upon any properties
belonging to them, prior to the date on which penalties attach thereto, and all
lawful claims for labor, materials and supplies which, if unpaid, might become a
Lien or charge (other than a Permitted Lien) upon any of their properties;
provided, however, that no such tax, assessment, charge, levy or claim need be
paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale or similar proceedings shall have been commenced.
The Parent and the Borrower will, and will cause each of the Borrower's
Subsidiaries to, timely file all material information returns required by
federal, state or local tax authorities.
Section 5.7 Compliance with ERISA.
(a) The Borrower shall, and shall cause its Subsidiaries to, make all
contributions to any Employee Pension Plan when such contributions are due and
not incur any "accumulated funding deficiency" within the meaning of Section
412(a) of the Code, whether or not waived, and will otherwise comply in all
material respects with the requirements of the Code and ERISA with respect to
the operation of all Plans.
(b) The Borrower shall, and shall cause its Subsidiaries to, comply in
all material respects with the requirements of COBRA with respect to any Plans
subject to the requirements thereof.
(c) The Borrower shall furnish to the Administrative Agent (with copies
for the Lenders) (i) within thirty (30) days after any officer of the Borrower
obtains knowledge that a "prohibited transaction" (within the meaning of Section
406 of ERISA or Section 4975 of the Code) has occurred with respect to any Plan
of the Borrower or its ERISA Affiliates, including its Subsidiaries, that any
Reportable Event has occurred with respect to any Employee Pension Plan or that
PBGC has instituted or will institute proceedings under Title IV of ERISA to
terminate any Employee Pension Plan or to appoint a trustee to administer any
Employee Pension
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Plan, a statement setting forth the details as to such prohibited transaction,
Reportable Event or termination or appointment proceedings and the action which
it (or any other Employee Pension Plan sponsor if other than the Borrower)
proposes to take with respect thereto, together with a copy of the notice of
such Reportable Event given to PBGC if a copy of such notice is available to the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates, (ii) promptly
after receipt thereof, a copy of any notice the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates or the sponsor of any Plan receives
from PBGC, or the Internal Revenue Service or the Department of Labor which sets
forth or proposes any action or determination with respect to such Plan, (iii)
promptly after the filing thereof, any annual report required to be filed
pursuant to ERISA in connection with each Plan maintained by the Borrower or any
of its ERISA Affiliates, including its Subsidiaries, and (iv) promptly upon the
Administrative Agent's or any Lender's request therefor, such additional
information concerning any such Plan as may be reasonably requested by the
Administrative Agent or any Lender.
(d) The Borrower will promptly notify the Administrative Agent of any
excise taxes which have been assessed or which the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries which could reasonably be expected to have a Materially Adverse
Effect.
(e) Within the time required for notice to the PBGC under Section
302(f)(4)(A) of ERISA, the Borrower will notify the Administrative Agent and the
Lenders of any lien arising under Section 302(f) of ERISA in favor of any Plan
of the Borrower or its ERISA Affiliates, including its Subsidiaries which could
reasonably be expected to have a Materially Adverse Effect.
(f) The Borrower will not, and will not permit any of its Subsidiaries
or any of its ERISA Affiliates to, take any of the following actions or permit
any of the following events to occur if such action or event together with all
other such actions or events would subject the Borrower, any of its Subsidiaries
or any of its ERISA Affiliates to any tax, penalty or other liabilities which
could reasonably be expected to have a Materially Adverse Effect:
(i) engage in any transaction in connection with which the
Borrower, any of its Subsidiaries or any ERISA Affiliate could be subject to
either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax
imposed by Section 4975 of the Code;
(ii) terminate any Employee Pension Plan in a manner, or take any
other action, which could result in any liability of the Borrower, any of its
Subsidiaries or any ERISA Affiliate to the PBGC;
(iii) fail to make full payment when due of all amounts which,
under the provisions of any Plan, the Borrower, any of its Subsidiaries or any
ERISA Affiliate is required to pay as contributions thereto, or permit to exist
any accumulated funding deficiency
65
within the meaning of Section 412(a) of the Code, whether or not waived, with
respect to any Employee Pension Plan; or
(iv) permit the present value of all benefit liabilities under all
Employee Pension Plans which are subject to Title IV of ERISA to exceed the
present value of the assets of such Plans allocable to such benefit liabilities
(within the meaning of Section 4041 of ERISA), except as may be permitted under
actuarial funding standards adopted in accordance with Section 412 of the Code.
Section 5.8 Visits and Inspections. The Parent and the Borrower will, and
will cause each of the Borrower's Subsidiaries to, permit representatives of the
Administrative Agent and any of the Lenders, prior to the occurrence of an Event
of Default upon reasonable notice and during business hours and at any time upon
the occurrence and during the continuance of an Event of Default to: (i) visit
and inspect the properties of the Parent, the Borrower or any of the Borrower's
Subsidiaries; (ii) inspect and make extracts from and copies of their respective
books and records; and (iii) discuss with their respective principal officers
their respective businesses, assets, liabilities, financial positions, results
of operations and business prospects. The Parent, the Borrower and each of the
Borrower's Subsidiaries will also permit representatives of the Administrative
Agent and any of the Lenders to discuss with their respective accountants the
Parent's, the Borrower's and the Borrower's Subsidiaries' businesses, assets,
liabilities, financial positions, results of operations and business prospects.
Section 5.9 Payment of Indebtedness; Loans. Subject to any provisions herein
or in any other Loan Document, the Parent and the Borrower will, and will cause
each of the Borrower's Subsidiaries to, pay any and all of their respective
Indebtedness when and as it becomes due or to the extent of trade payables of
such Persons otherwise in accordance with ordinary business practices customary
for the cellular telephone and wireless communications industry, other than
amounts diligently disputed in good faith and for which adequate reserves have
been set aside in accordance with GAAP.
Section 5.10 Use of Proceeds. The Borrower will use the aggregate proceeds
of all Advances under the Commitments directly or indirectly: (a) to fund
Capital Expenditures and investments of the Borrower and its Subsidiaries; (b)
for working capital needs and other general corporate purposes of the Borrower
and its Subsidiaries which do not otherwise conflict with this Section 5.10
(including, without limitation, the payment of fees and expenses incurred in
connection with the execution and delivery of this Agreement and the other Loan
Documents); and (c) subject to compliance with Section 7.6 hereof, to finance
Acquisitions and investments hereunder. No proceeds of Advances hereunder shall
be used for the purchase or carrying or the extension of credit for the purpose
of purchasing or carrying, any margin stock within the meaning of the
Regulations.
Section 5.11 Indemnity. The Borrower agrees to indemnify and hold harmless
each Lender, the Administrative Agent, and each of their respective
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Affiliates, employees, representatives, shareholders, officers, directors,
trustees, investment advisors and counsel (any of the foregoing shall be an
"Indemnitee") from and against any and all claims, liabilities, losses, damages,
actions, attorneys' fees and expenses (as such fees and expenses are incurred)
and demands by any party, including the costs of investigating and defending
such claims, whether or not the Parent, the Borrower, any of the Borrower's
Subsidiaries or the Person seeking indemnification is the prevailing party: (a)
resulting from any breach or alleged breach by the Parent, the Borrower or any
Subsidiary of the Borrower of any representation or warranty made hereunder; (b)
otherwise arising out of the Commitments or otherwise under this Agreement, any
Loan Document or any transaction contemplated hereby or thereby, including,
without limitation, the use of the proceeds of Loans hereunder in any fashion by
the Borrower or the performance of their respective obligations under the Loan
Documents by the Parent, the Borrower or any of the Borrower's Subsidiaries; or
(c) in connection with taxes (not including Excluded Taxes), fees, and other
charges payable in connection with the Loans, or the execution, delivery, and
enforcement of this Agreement, the Security Documents, the other Loan Documents,
and any amendments thereto or waivers of any of the provisions thereof; unless
the Person seeking indemnification hereunder is determined in such case to have
acted with gross negligence or willful misconduct, in any case, by a final,
non-appealable judicial order of a court of competent jurisdiction. The
obligations of the Borrower under this Section 5.11 are in addition to, and
shall not otherwise limit, any liabilities which the Borrower might otherwise
have in connection with any warranties or similar obligations of the Borrower in
any other Loan Document.
Section 5.12 Interest Rate Hedging. Within ninety (90) days immediately
following the Agreement Date, and at all times thereafter, the Borrower shall at
all times maintain one (1) or more Interest Rate Hedge Agreements with respect
to the Borrower's interest obligations on an aggregate principal amount of not
less than fifty percent (50%) of the principal amount of Indebtedness for Money
Borrowed outstanding from time to time (other then Indebtedness for Money
Borrowed that bears interest at a fixed rate). Such Interest Rate Hedge
Agreements shall provide interest rate protection in conformity with
International Swap Dealers Association standards and for a period averaging at
least eighteen (18) months from the date of such Interest Rate Hedge Agreements
across all such Interest Rate Hedge Agreements or, if earlier, until the
Maturity Date on terms acceptable to the Administrative Agent, such terms to
include consideration of the creditworthiness of the other party to the proposed
Interest Rate Hedge Agreement. All Obligations of the Borrower to the
Administrative Agent or any of the Lenders or any of their Affiliates pursuant
to any Interest Rate Hedge Agreement permitted hereunder and all Liens granted
to secure such Obligations shall rank pari passu with all other Obligations and
Liens securing such other Obligations; and any Interest Rate Hedge Agreement
between the Borrower and any other Person shall be unsecured.
Section 5.13 Covenants Regarding Formation of Subsidiaries and Acquisitions.
(i) At the time of any Acquisition permitted hereunder or (ii) within thirty
(30) days of the formation of any new Subsidiary of the Borrower or any of its
Subsidiaries which is permitted under this Agreement,
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including, without limitation, the formation of any License Sub, the Borrower
will, and will cause its Subsidiaries, including each License Sub, as
appropriate, to: (a) provide to the Administrative Agent (1) an executed
Subsidiary Security Agreement for such new Subsidiary, in substantially the form
of Exhibit J attached hereto, together with appropriate Uniform Commercial Code
financing statements, and (2) an executed Subsidiary Guaranty for such new
Subsidiary, in substantially the form of Exhibit K attached hereto, together
with other appropriate documentation, all of which shall constitute both
Security Documents and Loan Documents for purposes of this Agreement, as well as
a loan certificate for such new Subsidiary, substantially in the form of Exhibit
I attached hereto, together with appropriate attachments; (b) pledge to the
Administrative Agent all of the Ownership Interests of such Subsidiary or Person
which is acquired or formed, beneficially owned by the Borrower or any of the
Borrower's Subsidiaries, as the case may be, as additional Collateral for the
Obligations to be held by the Administrative Agent in accordance with the terms
of the Borrower's Pledge Agreement, an existing Subsidiary Pledge Agreement, or
a new Subsidiary Pledge Agreement in substantially the form of Exhibit L
attached hereto, and execute and deliver to the Administrative Agent all such
other documentation for such pledge as, in the reasonable opinion of the
Administrative Agent, is necessary and appropriate; and (c) provide revised
financial projections for the remainder of the fiscal year and for each
subsequent year until the Maturity Date which reflect such Acquisition or, to
the extent of any material change in the previous financial projections
provided, formation, certified by the chief financial officer of the Borrower,
together with a statement by such Authorized Officer of the Borrower that no
Default exists or would be caused by such Acquisition or formation, and all
other documentation, including one or more opinions of counsel, which are
satisfactory to the Administrative Agent and which in its reasonable opinion are
necessary and appropriate with respect to such Acquisition or the formation of
such Subsidiary. Any document, agreement or instrument executed or issued
pursuant to this Section 5.13 shall be a "Loan Document" for purposes of this
Agreement.
Section 5.14 Payment of Wages. The Borrower shall and shall cause each of
its Subsidiaries to at all times comply, in all material respects, with the
requirements of the Fair Labor Standards Act, as amended, including, without
limitation, the provisions of such Act relating to the payment of minimum and
overtime wages as the same may become due from time to time.
Section 5.15 Further Assurances. The Parent and the Borrower will promptly
cure, or cause to be cured, defects in the creation and issuance of any of the
Notes and the execution and delivery of the Loan Documents (including this
Agreement), resulting from any acts or failure to act by the Parent, the
Borrower or any of the Borrower's Subsidiaries or any employee or officer
thereof. The Parent and the Borrower at their expense will promptly execute and
deliver to the Administrative Agent and the Lenders, or cause to be executed and
delivered to the Administrative Agent and the Lenders, all such other and
further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of the Parent and the Borrower in
the Loan Documents, including this Agreement, or to correct any error, ambiguity
or inconsistency in the Loan Documents, or more fully to state the obligations
set out herein or in any of the Loan Documents, or to obtain any
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consents, all as may be reasonably necessary or appropriate in connection
therewith and as may be reasonably requested.
Section 5.16 License Subs. At the time of any Acquisition permitted
hereunder, the Borrower shall cause each of the Licenses being acquired by the
Borrower or any of its Subsidiaries to be transferred to one or more License
Subs, each of which License Subs shall have as its sole asset or assets the
Licenses of the Borrower or any of its Subsidiaries and an agreement with the
Borrower and such of its Subsidiaries subject to such License or Licenses, such
that from and after such applicable date neither the Borrower nor its
Subsidiaries (other than License Subs) shall hold any Licenses other than
through one or more duly created and existing License Subs. The Borrower shall
not permit the License Subs to have any business activities, operations, assets,
Indebtedness, Guaranties or Liens (other than pursuant to a Subsidiary Guaranty
and Subsidiary Security Agreement issued in connection herewith or any Agreement
referred to in the preceding sentence and other than Indebtedness to the FCC
which Indebtedness may be secured as permitted by Section 7.2 hereof). Promptly
after the transfer of the Licenses to the License Subs, the Borrower shall
provide to the Administrative Agent copies of any required consents to such
transfer from the FCC and any other governmental authority, together with a
certificate of an Authorized Signatory stating that all Necessary Authorizations
relating to such transfer have been obtained or made, are in full force and
effect and are not subject to any pending or threatened reversal or
cancellation.
Section 5.17 Business of the Parent; Immediate Contributions to the
Borrower.
(a) The Parent shall engage solely in the business of holding the
assets described in Section 4.1(z) hereof, incurring Indebtedness permitted by
Section 7.1 and incurring the Bid Equity Commitments, so long as the proceeds of
such Bid Equity Commitments are disposed of in accordance with Section 5.17(b)
hereof.
(b) The Parent shall immediately (i) contribute to the Borrower upon
receipt (A) any capital contributions and (B) net proceeds from the issuance of
any Indebtedness (excluding Subordinated Debt) and (ii) lend to the Borrower the
net proceeds of any Subordinated Debt, which loan shall be subordinate to the
Obligations hereunder on terms reasonably satisfactory to the Required Lenders.
Section 5.18 Year 2000 Compliance. The Parent and the Borrower will promptly
notify the Lenders in the event the Parent or the Borrower discovers or
determines that any computer application (including those of its suppliers,
vendors and customers) that is material to the Parent's, the Borrower's or any
of the Borrower's Subsidiaries' business and operations will not be Year 2000
Compliant, except to the extent that such failure could not reasonably be
expected to have a Materially Adverse Effect.
Section 5.19 Bidding Company Documentation. The Borrower will (a) cause the
Bidding Company Documentation (i) to be in form and substance reasonably
satisfactory to the
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Administrative Agent and (ii) to become effective on or prior to ▇▇▇▇▇ ▇, ▇▇▇▇,
(▇) provide the Administrative Agent with (i) such proof of the effectiveness of
the Bidding Company Documentation as the Administrative Agent may reasonably
request and (ii) opinions of counsel to the Borrower, including, without
limitation, special FCC counsel to the Borrower, as to the enforceability of the
Bidding Company Documentation and such other matters as the Administrative Agent
may reasonably request and (iii) pledge the Bidding Company Documentation to the
Administrative Agent, for itself and on behalf of the Lenders, as additional
security for the Obligations.
Section 5.20 The Bid Equity Commitments. The Parent and the Borrower will
(a) cause the Bid Equity Commitments (i) to be in form and substance reasonably
satisfactory to the Administrative Agent and (ii) to become effective and (b)
provide the Administrative Agent with such proof of the effectiveness as the
Administrative Agent may reasonably request, in each case, on or prior to the
date on which the Bidding Company submits a bid or bids on behalf of the
Borrower in the Auction which singly or in the aggregate exceed $7,500,000;
provided, however, that the Bid Equity Commitments need not become effective if
the Bidding Company does not submit any bid or bids in the Auction that the
Borrower has agreed to fund under the Bidding Company Documentation which singly
or in the aggregate exceed $7,500,000, uses its best efforts to obtain prompt
return of all funds placed in escrow with the FCC, and reimburses substantially
all funds invested in it by the Borrower to the Borrower no later than the third
(3rd) Business Day after the Bidding Company's receipt of such funds from the
escrow account with the FCC. In the event that the Bid Equity Commitments are
required to become effective pursuant to this Section 5.20, the Parent and the
Borrower will cause the Bid Equity Commitments to be funded, and the Bid Equity
Commitments Documentation to become effective and provide the Administrative
Agent with such proof of the effectiveness of the Bid Equity Commitments
Documentation as the Administrative Agent may reasonably request on or prior to
December 31, 1999.
ARTICLE 6 Information Covenants
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Required Lenders shall
otherwise consent in writing, the Borrower will furnish or cause to be furnished
to the Administrative Agent (with sufficient copies for each Lender), at its
respective offices:
Section 6.1 Quarterly Financial Statements and Information. Within sixty
(60) days after the last day of each of the first three (3) fiscal quarters of
the Borrower during any fiscal year, the balance sheets of the Borrower on a
consolidated and consolidating basis with its Subsidiaries and the Parent, as at
the end of such quarter and as of the end of the preceding fiscal year, and the
related statements of
70
operations and the related statements of cash flows of the Borrower on a
consolidated and consolidating basis with its Subsidiaries and the Parent, for
such quarter and for the elapsed portion of the year ended with the last day of
such quarter, which shall set forth in comparative form such figures as at the
end of and for such quarter and appropriate prior period, shall provide
consolidated and consolidating figures with respect to any Acquisitions
consummated during such period, and shall be certified by the chief financial
officer of the Borrower to have been prepared in accordance with GAAP and to
present fairly in all material respects the financial position of the Borrower
on a consolidated and consolidating basis with its Subsidiaries and the Parent,
as at the end of such period and the results of operations for such period, and
for the elapsed portion of the year ended with the last day of such period,
subject only to normal year-end and audit adjustments and the absence of notes
thereto.
Section 6.2 Annual Financial Statements and Information. Within one hundred
and twenty (120) days after the end of each fiscal year of the Borrower, the
audited consolidated and consolidating balance sheets of the Parent, the
Borrower and the Borrower's Subsidiaries, as of the end of such fiscal year and
the related audited consolidated and consolidating (excluding License Subs)
statements of operations of the Parent, the Borrower and the Borrower's
Subsidiaries, for such fiscal year and for the previous fiscal year, the related
audited consolidated and consolidating (excluding License Subs) statements of
cash flow and stockholders' equity of the Parent, the Borrower and the
Borrower's Subsidiaries, for such fiscal year and for the previous fiscal year,
which shall be accompanied by an opinion of independent certified public
accountants of recognized national standing acceptable to the Administrative
Agent (without a "going concern" or like qualification or exception and without
any qualification or exception as to the scope of the audit), together with a
statement of such accountants that in connection with their audit, nothing came
to their attention that caused them to believe that the Parent or the Borrower
was not in compliance with or was otherwise in Default under the terms,
covenants, provisions or conditions of Articles 7 and 8 hereof insofar as they
relate to accounting or financial matters.
Section 6.3 Performance Certificates. At the time the financial statements
are furnished pursuant to Sections 6.1 and 6.2 hereof, a certificate of the
president or chief financial officer of the Borrower as to its financial
performance in substantially the form attached hereto as Exhibit E:
(a) setting forth as and at the end of such quarterly period or fiscal
year, as the case may be, the arithmetical calculations required to establish
(i) any adjustment to the Applicable Margins, as provided for in Section 2.3(f)
hereof and (ii) whether or not the Borrower was in compliance with the
requirements of Sections 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16 and
7.17 hereof;
(b) setting forth on a consolidated basis for the Borrower and its
Subsidiaries for each such fiscal quarter (i) the number of Subscribers, POPs
and market penetration at the beginning of the quarter, (ii) the number of gross
new Subscribers added and deactivated Subscribers lost during the quarter and
(iii) the number of Subscribers, POPs and market
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penetration at the end of the quarter; and
(c) stating that no Default has occurred as at the end of such
quarterly period or year, as the case may be, or, if a Default has occurred,
disclosing each such Default and its nature, when it occurred, whether it is
continuing and the steps being taken by the Borrower with respect to such
Default.
Section 6.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or the Parent by the Borrower's or the Parent's
independent public accountants regarding the Borrower or the Parent, including,
without limitation, any management report prepared in connection with the annual
audit referred to in Section 6.2 hereof.
(b) Promptly upon receipt thereof, copies of any material adverse
notice or report regarding any License from the FCC or any other governmental
authority.
(c) From time to time and promptly upon each request, such data,
certificates, reports, statements, documents or further information regarding
the business, assets, liabilities, financial position, projections, results of
operations or business prospects of the Parent, the Borrower or any of the
Borrower's Subsidiaries, as the Administrative Agent or any Lender may
reasonably request.
(d) Annually, certificates of insurance indicating that the
requirements of Section 5.5 hereof remain satisfied for such fiscal year,
together with copies of any new or replacement insurance policies obtained
during such year.
(e) Prior to March 31st of each year, an annual budget for each year
after 1999 for the Parent, the Borrower and the Borrower's Subsidiaries, in form
and substance reasonably satisfactory to the Administrative Agent.
(f) Promptly after the sending thereof, copies of all material
statements, reports and other material non-proprietary information which the
Parent, the Borrower or any of the Borrower's Subsidiaries sends to security
holders of the Parent or the Borrower generally or files with the Securities and
Exchange Commission or any national securities exchange, or would be required to
file therewith if it were a registered reporting company.
(g) Within forty-five (45) days after the last day of each month prior
to the delivery of financial statements of the Borrower, its Subsidiaries and
the Parent as required pursuant to Section 6.1 hereof, (i) the balance sheet of
the Borrower on a consolidated basis with its Subsidiaries and the Parent as at
the end of such month, and the related statements of operations of the Borrower
on a consolidated basis with its Subsidiaries and the Parent, certified by the
chief financial officer of the Borrower to have been prepared in accordance with
GAAP and to present fairly in all material respects the financial position of
the Borrower, its
72
Subsidiaries and the Parent on a consolidated basis as at the end of such month
and the results of operations for such month, subject only to normal year-end
and audit adjustments and the absence of notes thereto, and (ii) a certificate
of the chief financial officer of the Borrower setting forth (A) the aggregate
number of Subscribers at the end of the calendar month preceding such calendar
month and (B) the aggregate number of Subscribers at the end of such calendar
month,.
(h) Within five (5) Business Days after the same are sent, a copy of
any financial statement, report or notice which the Parent, the Borrower or any
Subsidiary of the Borrower sends to any Person under or pursuant to or in
connection with the Securities Purchase Agreement, the Network License
Agreement, the Stockholders Agreement, the Roaming Agreement, the Resale
Agreement, or any other PCS Document, in each case if such statement, report or
notice relates to an event that has resulted or could reasonably be expected to
result in a Default, an Event of Default or a Materially Adverse Effect; and,
within five (5) Business Days after the same are received by the Parent, the
Borrower or any Subsidiary, copies of all notices sent to any such Person under
or pursuant to or in connection with any such agreement or instrument which
notice relates to an event that has resulted or could reasonably be expected to
result in a Default, an Event of Default or a Materially Adverse Effect.
Section 6.5 Notice of Litigation and Other Matters. Notice specifying the
nature and status of any of the following events, promptly, but in any event not
later than fifteen (15) days after the occurrence of any of the following events
becomes known to a senior officer of the Parent or the Borrower:
(a) the commencement of all proceedings and investigations by or before
any governmental body and all actions and proceedings in any court or before any
arbitrator against, or to the extent known to the Parent or the Borrower, in any
other way relating materially adversely to the Parent, the Borrower, any
Subsidiary of the Borrower or to the extent such action could reasonably be
expected to have a Materially Adverse Effect; provided, however, that no such
information that is subject to the attorney-client privilege need be disclosed;
(b) any material adverse change with respect to the business, assets,
liabilities, financial position, results of operations or business prospects of
the Parent, the Borrower or any Subsidiary of the Borrower, other than changes
in the ordinary course of business which have not had and would not reasonably
be expected to have a Materially Adverse Effect;
(c) any material amendment or change to the financial projections or
annual budget provided to the Lenders by the Borrower;
(d) the occurrence or non-occurrence of any event (A) which constitutes
a Default or an Event of Default by the Parent, the Borrower or any Subsidiary
of the Borrower, or an event or condition which gives rise to any put right or
other prepayment right of any holder of Indebtedness, under any material
agreement other than this Agreement and the other Loan Documents to which the
Parent, the Borrower or any Subsidiary of the Borrower is party or by which any
of their respective properties may be bound or (B) which could have a Materially
73
Adverse Effect, giving in each case the details thereof and specifying the
action proposed to be taken with respect thereto;
(e) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of the Borrower or any of its Subsidiaries or
the institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it
or the trustee of any such Plan with respect to such Plan or any action taken by
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of the
Borrower to withdraw or partially withdraw from any Plan or to terminate any
Plan; and
(f) the occurrence of any event subsequent to the Agreement Date which,
if such event had occurred prior to the Agreement Date, would have constituted
an exception to the representation and warranty in Section 4.1(l) hereof.
ARTICLE 7 Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Required Lenders, or
such greater number of Lenders as may be expressly provided herein, shall
otherwise give their prior consent in writing.
Section 7.1 Indebtedness of the Parent, the Borrower and the Borrower's
Subsidiaries. The Parent and the Borrower shall not, and shall not permit any of
the Borrower's Subsidiaries to, create, assume, incur or otherwise become or
remain obligated in respect of, or permit to be outstanding, any Indebtedness
except;
(a) the Obligations;
(b) operating accounts payable, accrued expenses and customer advance
payments incurred in the ordinary course of business;
(c) Indebtedness secured by Permitted Liens, provided that such
Indebtedness was incurred to finance the asset on which such Permitted Lien
exists;
(d) obligations under Interest Hedge Agreements of the Borrower or its
Subsidiaries with respect to the Loans;
(e) unsecured Indebtedness of the Borrower or any of its Subsidiaries
to the Borrower or any such Subsidiary so long as the corresponding debt
instruments, if any, are
74
pledged to the Administrative Agent as security for the Obligations;
(f) Capitalized Lease Obligations in an amount for the Borrower on a
consolidated basis with its Subsidiaries not in excess of $20,000,000 in the
aggregate at any one time outstanding;
(g) the Subordinated Debt, provided that such Subordinated Debt is (a)
issued on terms reasonably satisfactory to the Required Lenders, (b) is in an
aggregate principal amount not to exceed $200,000,000, or such greater amount as
may be approved by the Required Lenders, and (c) the proceeds of such
Subordinated Debt shall be used by the Borrower solely to fund the build-out of
the Borrower's Cellular System and working capital needs and other general
corporate purposes of the Borrower and its Subsidiaries related to such
build-out, except to the extent provided in Section 7.6(e)(vii) hereof, or as
otherwise approved by the Required Lenders;
(h) to the extent that the accrual of dividends with respect to the
Series A Preferred Stock would be considered Indebtedness, the accrual of
dividends with respect to such Series A Preferred Stock, provided that no
dividends may be paid in respect thereof under any circumstances prior to the
date that is six (6) months after the Maturity Date;
(i) FCC Indebtedness assumed in connection with the Licenses set forth
on Schedule 1 attached hereto in an aggregate principal amount not to exceed
$48,000,000;
(j) other unsecured Indebtedness of the Borrower and its Subsidiaries
not to exceed an aggregate principal amount of $10,000,000 at any time
outstanding;
(k) Indebtedness of the Borrower to the Parent issued in accordance
with Section 5.17(b)(ii) hereof; and
(l) Bid Equity Commitments in the form of unsecured subordinated
Indebtedness of the Parent, provided that such unsecured subordinated
Indebtedness (a) has a maturity date that is not earlier than the date which is
six (6) months subsequent to the Term Loan B Maturity Date, (b) is issued on
terms reasonably satisfactory to the Administrative Agent, (c) is in an
aggregate principal amount not to exceed the Aggregate Bid License Purchase
Price, and (d) the proceeds of such unsecured subordinated Indebtedness shall be
used by the Parent solely as provided in Section 5.17(b) hereof and by the
Borrower solely to fund the Aggregate Bid License Purchase Price.
Section 7.2 Limitation on Liens. The Parent and the Borrower shall not, and
shall not permit any of the Borrower's Subsidiaries to, create, assume, incur or
permit to exist or to be created, assumed, incurred or permitted to exist,
directly or indirectly, any Lien on any of its properties or assets, whether now
owned or hereafter acquired, except for Permitted Liens.
Section 7.3 Amendment and Waiver. The Parent
75
and the Borrower shall not, and shall not permit any of the Borrower's
Subsidiaries to, enter into any amendment of, or agree to or accept or consent
to any waiver of any of the provisions of its articles or certificate of
incorporation, or its partnership agreement or its by-laws, as appropriate, or
any of the Subordinated Debt Documents, PCS Documents, Bidding Company
Documentation or the Bid Equity Commitments Documentation (other than immaterial
amendments which could not reasonably be expected to have a Materially Adverse
Effect on the Administrative Agent or any Lender or any of their rights or
claims under any of the Loan Documents).
Section 7.4 Liquidation, Merger or Disposition of Assets.
(a) Disposition of Assets. The Parent and the Borrower shall not, and
shall not permit any of the Borrower's Subsidiaries to, at any time sell, lease,
abandon or otherwise dispose of any assets (other than assets disposed of in the
ordinary course of business or obsolete or worn out assets or assets no longer
useful in the business of the Borrower or any of its Subsidiaries) without the
prior written consent of the Required Lenders; provided, however, that the
Parent and the Borrower may, and may permit any of the Borrower's Subsidiaries
to, without the prior written consent of the Required Lenders: (i) transfer
assets (including cash or Cash Equivalents) among the Borrower and its
Subsidiaries (excluding Subsidiaries described in clause (b) of the definition
of "Subsidiary" set forth in Article 1 hereof); (ii) transfer assets (including
cash or Cash Equivalents) between or among Subsidiaries (excluding Subsidiaries
described in clause (b) of the definition of "Subsidiary" set forth in Article 1
hereof) of the Borrower; (iii) sell or otherwise dispose of assets of the
Borrower or its Subsidiaries under this clause (iii) in an aggregate amount not
to exceed $1,000,000.00 in any fiscal year; or (iv) engage in Tower
Sale/Leaseback Transactions not to exceed, in the aggregate, $25,000,000,
provided that if any Revolving Loans are then outstanding, the Net Proceeds of
any such Tower Sale/Leaseback Transaction are used to repay the Revolving Loans.
(b) Liquidation or Merger. The Parent and the Borrower shall not, and
shall not permit any of the Borrower's Subsidiaries to, at any time liquidate or
dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up,
or enter into any merger, other than (so long as no Default exists or is caused
thereby): (i) a merger or consolidation among the Borrower and one (1) or more
of its Subsidiaries, provided that the Borrower is the surviving corporation;
(ii) a merger between or among two (2) or more Subsidiaries of the Borrower;
(iii) in connection with an Acquisition permitted hereunder effected by a merger
in which the Borrower or one of its Subsidiaries is the surviving corporation;
or (iv) in a merger in which the Borrower is not a party, where the surviving
corporation is a Subsidiary of the Borrower and the requirements of Section 5.13
hereof have been satisfied.
Section 7.5 Limitation on Guaranties. The Parent and the Borrower shall not,
and shall not permit any of the Borrower's Subsidiaries to, at any time
Guaranty, assume, be obligated with respect to, or permit to be outstanding any
Guaranty of, any obligation of any other Person other than: (a) a guaranty by
endorsement of negotiable instruments for collection in the ordinary course of
business; (b) Guaranties
76
constituting Indebtedness permitted pursuant to Section 7.1 hereof; or (c) as
may be contained in any Loan Document.
Section 7.6 Investments and Acquisitions. The Parent and the Borrower shall
not, and shall not permit any of the Borrower's Subsidiaries to, directly or
indirectly, make any loan, investment or advance, or otherwise acquire for
consideration evidences of Indebtedness, Capital Stock or other securities of
any Person or other assets or property (other than assets or property in the
ordinary course of business), or make any Acquisition; provided, however, that
so long as no Default then exists or would be caused thereby:
(a) the Borrower and its Subsidiaries may, directly or through a
brokerage account (i) purchase marketable, direct obligations of the United
States of America, its agencies and instrumentalities maturing within three
hundred sixty-five (365) days of the date of purchase, (ii) purchase commercial
paper or other corporate Indebtedness issued by corporations, each of which
shall have a combined net worth of at least $100,000,000 and each of which
conducts a substantial part of its business in the United States of America,
maturing within two hundred seventy (270) days from the date of the original
issue thereof, and rated "P-2" or better by ▇▇▇▇▇'▇ Investors Service, Inc., or
any successor, or "A-2" or better by Standard and Poor's Ratings Group, a
division of McGraw Hill, Inc., or any successor, and (iii) purchase repurchase
agreements, bankers' acceptances, and certificates of deposit maturing within
three hundred sixty-five (365) days of the date of purchase which are issued by,
or time deposits maintained with, a United States national or state Lender the
deposits of which are insured by the Federal Deposit Insurance Corporation or
the Federal Savings and Loan Insurance Corporation and having capital, surplus
and undivided profits totaling more than $100,000,000.00 and rated "A" or better
by ▇▇▇▇▇'▇ Investors Service, Inc., or any successor, or Standard and Poor's
Ratings Group, a division of McGraw Hill, Inc., or any successor; and
(b) (i) the Borrower and the Subsidiaries of the Borrower may incur
intercompany Indebtedness under Section 7.1 (e) hereof, and (ii) subject to
compliance with Section 5.13 hereof, the Borrower may own Capital Stock of the
Subsidiaries of the Borrower existing on the Agreement Date, any new Subsidiary
and, as permitted by Section 5.16 hereof, any License Sub;
(c) the Borrower may make an Acquisition with the prior written consent
of the Required Lenders, provided that the Borrower complies with Section 5.13
hereof in connection therewith, and provides to the Administrative Agent and the
Lenders financial projections and calculations, in form and substance
satisfactory to the Administrative Agent, specifically demonstrating the
Borrower's compliance with Sections 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14,
7.15, 7.16, and 7.17 hereof and its ability to meet its repayment obligations
hereunder through the Maturity Date, after giving effect thereto;
(d) the Borrower may, directly or indirectly, make one or more
investments, in an aggregate amount not to exceed $5,000,000, in Persons formed
for the purpose of holding
78
intellectual property rights to be used by the Parent, the Borrower and the
Borrower's Subsidiaries, or any of them;
(e) the Borrower may make investments in the Bidding Company, provided
that:
(i) at no time shall the investments by the Borrower in the
Bidding Company exceed the Aggregate Bid License Purchase Price;
(ii) at no time shall the Aggregate Bid License Purchase Price
exceed the lesser of (A) $25,000,000 and (B) the sum of (1) $7,500,000
and (2) the Bid Equity Commitments;
(iii) at no time shall investments by the Borrower in the Bidding
Company funded with the proceeds of an Advance under the Revolving Loan
Commitment exceed $7,500,000, and the proceeds of such Advance shall be
used solely to make the Deposit Loan and/or to fund all or a portion of
the Aggregate Bid License Purchase Price;
(iv) at no time shall the Bid License Purchase Price for any Bid
License exceed $10.00 per POP with respect to the POPs covered by such
Bid License;
(v) if at any time all or any portion of the Deposit is refunded
to the Bidding Company, then the Bidding Company shall, within three
(3) Business Days thereof, make a payment to the Borrower under, and in
accordance with the terms of, the Deposit Loan Note in an amount equal
to the amount of the Deposit so refunded;
(vi) if at any time the Borrower shall receive any payment on the
Deposit Loan, then the Borrower shall, within five (5) Business Days
thereof, repay, first, if an Advance under the Revolving Loan
Commitment was used to fund all or any portion of such Deposit Loan,
the Revolving Loans used to fund such Deposit Loan in an amount equal
to the amount of the payment on the Deposit Loan so received, together
with any accrued interest with respect thereto and, second, any source
of the deposit Loan other than Revolving Loans;
(vii) any Surplus Subordinated Debt shall be applied, first, to
repay the Revolving Loans used to fund the Deposit Loan, if any,
second, to repay any source of the Deposit Loan other than the
Revolving Loans, third, to fund the Aggregate Bid License Purchase
Price (or repay the source thereof if previously funded other than with
the Bid Equity Commitments) in an amount equal to the excess, if any,
of $7,500,000 over the Deposit, fourth, at the Borrower's election, to
fund the balance of the Aggregate Bid License Purchase Price in an
amount required to reduce the Bid Equity Commitments to $0.00 and,
fifth, as provided in
78
Section 7.1(g) hereof; and
(f) the Parent may make investments in and loans and advances to the
Borrower as otherwise permitted hereunder.
Section 7.7 Limitation on Distributions. The Parent and the Borrower shall
not, and shall not permit any of the Borrower's Subsidiaries to, make any
Restricted Payment or Restricted Purchase; provided, however, that such
Restricted Payments or Restricted Purchases may be made if (a) the Total
Leverage Ratio is less than 5.00 to 1.00, (b) the Borrower has made all
repayments from Excess Cash Flow required under Section 2.7(b)(iv) hereof, and
(c) no Default or Event of Default exists, both before and after giving effect
to such Restricted Payments or Restricted Purchases. Notwithstanding any of the
foregoing, so long as no Default has occurred and is continuing both before and
after giving effect to the following Restricted Payments or Restricted
Purchases, the Borrower and its Subsidiaries shall be permitted to make
Restricted Payments or Restricted Purchases (i) to the Parent to pay
administrative and other similar costs and franchise and other similar taxes
required to be paid by the Parent, in an aggregate amount not to exceed
$1,000,000 per fiscal year, (ii) to fund, as and when due, payments of regularly
scheduled interest and principal in respect of any Indebtedness incurred by the
Parent that is permitted under Section 7.1 hereof, other than payments in
respect of the Subordinated Debt prohibited by the subordination provisions
thereof, and (iii) pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Parent, the Borrower or
the Borrower's Subsidiaries, in an aggregate amount not to exceed $1,000,000 per
fiscal year.
Section 7.8 Senior Debt Capitalization Ratio. (a) As of the end of any
calendar quarter, and (b) at the time of any Advance hereunder (after giving
effect to such Advance) which, if funded, would increase the aggregate principal
amount of the Loans outstanding on such date of determination, the Borrower
shall not permit the Senior Debt Capitalization Ratio to exceed 0.50 to 1.00;
provided, however, that if (i) all Unfunded Commitments (as defined in the
Securities Purchase Agreement) have been contributed in full in cash to the
Borrower and (ii) the ratio of Covered POPs to Total POPs, in each case within
the Licensed Territory (as defined in the Network License Agreement), exceeds
0.60 to 1.00, then the ratio of Total Debt Capitalization Ratio may exceed 0.50
to 1.00, but shall not exceed 0.55 to 1.00.
Section 7.9 Total Debt Capitalization Ratio. (a) As of the end of any
calendar quarter, and (b) at the time of any Advance hereunder (after giving
effect to such Advance) which, if funded, would increase the aggregate principal
amount of the Loans outstanding on such date of determination, the Borrower
shall not permit the Total Debt Capitalization Ratio to exceed, (1) from the
Agreement Date through June 30, 2001, 0.70 to 1.00, and (2) at all times
thereafter, 0.75 to 1.00.
Section 7.10 Minimum Required Covered POPs. (a) As of each calendar quarter
end and (b) at the time of any Advance hereunder which, if funded, would
increase the aggregate
79
principal amount of the Loans outstanding on such date of determination, the
Borrower shall not permit the ratio of (1) Covered POPs to (2) Total POPs to be
less than or equal to the percentages set forth below for the periods indicated:
Ratio of Covered
Period POPs to Total POPs
------ ------------------
From September 30, 1999 through June 29, 2000 30%
From June 30, 2000 through June 29, 2001 55%
From June 30, 2001 through June 29, 2002 65%
From June 30, 2002 through June 29, 2003 75%
At all times thereafter 80%
Section 7.11 Minimum Subscribers. (a) As of each calendar quarter end set
forth below, and (b) at the time of any Advance hereunder which, if funded,
would increase the aggregate principal amount of the Loans outstanding on such
date of determination, the Borrower shall not permit the total number of
Subscribers on such date to be less than the number of Subscribers set forth
below for the periods indicated:
Period Number of Subscribers
------ ---------------------
From March 31, 2000 through June 29, 2000 30,000
From June 30, 2000 through September 29, 2000 53,000
From September 30, 2000 through December 30, 2000 95,000
From December 31, 2000 through March 30, 2001 137,000
From March 31, 2001 through June 29, 2001 190,000
From June 30, 2001 through September 29, 2001 220,000
From September 30, 2001 through December 30, 2001 247,000
From December 31, 2001 through March 30, 2002 277,000
From March 31, 2002 through June 29, 2002 315,000
80
Period Number of Subscribers
------ ---------------------
From June 30, 2002 through September 29, 2002 345,000
At all times thereafter 400,000
Section 7.12 Aggregate Service Revenue. (a) As of each calendar quarter end
set forth below, and (b) at the time of any Advance hereunder which, if funded,
would increase the aggregate principal amount of the Loans outstanding on such
date of determination, the Borrower shall not permit its total Aggregate Service
Revenue for the immediately preceding four (4) fiscal quarter period to be less
than the following Aggregate Service Revenue amounts for the periods indicated:
Total Aggregate
Period Service Revenue
------ ---------------
From March 31, 2000 through June 29, 2000 $5,800,000
From June 30, 2000 through September 29, 2000 $14,000,000
From September 30, 2000 through December 30, 2000 $23,000,000
From December 31, 2000 through March 30, 2001 $42,000,000
From March 31, 2001 through June 29, 2001 $69,000,000
From June 30, 2001 through September 29, 2001 $96,000,000
From September 30, 2001 through December 30, 2001 $123,000,000
From December 31, 2001 through March 30, 2002 $144,000,000
From March 31, 2002 through June 29, 2002 $164,000,000
From June 30, 2002 through September 29, 2002 $185,000,000
At all times thereafter $225,000,000
Section 7.13 Maximum Capital Expenditures. (a) As of each fiscal quarter end
set forth below, and (b) at the time of any Advance hereunder which, if funded,
would increase the aggregate principal amount of the Loans outstanding on such
date of determination, the Borrower shall not permit Capital Expenditures
(excluding assets purchased with the proceeds of obsolete, worn out or no longer
useful assets as permitted by Section 7.4(a) hereof) for the Borrower and its
Subsidiaries to exceed in any period;
81
Period Total Capital Expenditures
------ --------------------------
The Agreement Date through December 31, 1999 $334,000,000
From January 1, 2000 through December 31, 2000 $167,000,000
From January 1, 2001 through December 31, 2001 $91,000,000
From January 1, 2002 through December 31, 2002 $15,000,000
From January 1, 2003 through December 31, 2003 $15,000,000
From January 1, 2004 through December 31, 2004 $15,000,000
From January 1, 2005 through December 31, 2005 $15,000,000
From January 1, 2006 through December 31, 2006 $15,000,000
From January 1, 2007 through December 31, 2007 $15,000,000
; provided that any permitted amount which is not spent in any period specified
above (excluding any amount carried forward from the immediately preceding
period permitted to be spent during such period) may be carried forward to the
immediately subsequent period, and may be spent in addition to the otherwise
applicable limitation for such period; provided further that for purposes of
calculating the amount of any carry-forward amount for any period under this
Section 7.13, any amount carried forward from the preceding period shall be
deemed to be the first amount spent during the current period.
Section 7.14 Total Leverage Ratio. (a) As of the end of any calendar quarter
and (b) at the time of any Advance hereunder (after giving effect to such
Advance) which, if funded, would increase the aggregate principal amount of the
Loans outstanding on such date of determination, in each case, on and after the
Go-Positive Date, the Borrower shall not permit the Total Leverage Ratio to
exceed the ratios set forth below during the periods indicated:
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Period Ratio
------ -----
Go-Positive Date through
December 31, 2002 12.50:1
January 1, 2003 through
March 31, 2003 12.00:1
April 1, 2003 through
June 30, 2003 9.00:1
July 1, 2003 through
December 31, 2003 7.00:1
January 1, 2004 and
thereafter 5.00:1
Section 7.15 Senior Leverage Ratio. (a) As of the end of any calendar
quarter and (b) at the time of any Advance hereunder (after giving effect to
such Advance) which, if funded, would increase the aggregate principal amount of
the Loans outstanding on such date of determination, in each case, on and after
the Go-Positive Date, the Borrower shall not permit the Senior Leverage Ratio to
exceed the ratios set forth below during the periods indicated:
Period Ratio
------ -----
Go-Positive Date through 10.00:1
December 31, 2002
January 1, 2003 through 9.00:1
March 31, 2003
April 1, 2003 through 6.00:1
June 30, 2003
July 1, 2003 through 5.00:1
December 31, 2003
January 1, 2004 and
thereafter 4.00:1
Section 7.16 Fixed Charges Coverage Ratio. (a) As of the end of any calendar
quarter and (b) at the time of any Advance hereunder (after giving effect to
such Advance) which, if funded, would increase the aggregate principal amount of
the Loans outstanding on such date of determination, the Borrower shall not
permit
83
the Fixed Charges Coverage Ratio to be less than the ratios set forth
below for the periods indicated:
Period Ratio
------ -----
January 1, 2003 through 1.00:1
March 31, 2004
April 1, 2004 and thereafter 1.10:1
Section 7.17 Interest Coverage Ratio. (a) As of the end of any calendar
quarter and (b) at the time of any Advance hereunder (after giving effect to
such Advance) which, if funded, would increase the aggregate principal amount of
the Loans outstanding on such date of determination, the Borrower shall not
permit the Interest Coverage Ratio to be less than the ratios set forth below
for the periods indicated:
Period Ratio
------ -----
January 1, 2002 through 1.25:1
September 30, 2003
October 1, 2003 through 1.50:1
September 30, 2004
October 1, 2004 2.00:1
and thereafter
Section 7.18 Affiliate Transactions. Except as set forth on Schedule 5
attached hereto, and other than such management agreements between the Parent,
the Borrower and/or any of the Borrower's Subsidiaries, on the one hand, and its
License Subs, on the other hand, regarding the use of the Licenses and pursuant
to the Management Agreement, the Parent and the Borrower shall not, and shall
not permit any of the Borrower's Subsidiaries to, at any time engage in any
transaction with an Affiliate or make an assignment or other transfer of any of
its properties or assets to any Affiliate (other than to the Borrower or a
Subsidiary of the Borrower) on terms less advantageous to the Borrower or such
Subsidiary than would be the case if such transaction had been effected with a
non-Affiliate.
Section 7.19 Real Estate. None of the Parent, the Borrower or any of the
Borrower's Subsidiaries shall purchase any real estate or enter into any
sale/leaseback transaction, except (a) as contemplated in an Acquisition
permitted under Section 7.6 hereof or (b) in connection with a Tower
Sale/Leaseback Transaction permitted under Section 7.4 hereof.
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Section 7.20 ERISA Liabilities. The Borrower shall not, and shall cause each
of its ERISA Affiliates not to, (i) permit the assets of any of their respective
Plans to be less than the amount necessary to provide all accrued benefits under
such Plans or (ii) enter into any Multiemployer Plan.
Section 7.21 No Limitation on Upstream Dividends by Subsidiaries. The
Borrower shall not permit any Subsidiary to enter into or agree, or otherwise
become subject (other than pursuant to Applicable Law), to any agreement,
contract or other arrangement with any Person pursuant to the terms of which (a)
such Subsidiary is or would be prohibited from or limited in declaring or paying
any cash dividends or distributions on any class of its Capital Stock or any
other Ownership Interests owned directly or indirectly by the Borrower or from
making any other distribution on account of any class of any such Capital Stock
or Ownership Interests (herein referred to as "Upstream Dividends") or (b) the
declaration or payment of Upstream Dividends by a Subsidiary to the Borrower or
to another Subsidiary, on an annual or cumulative or other basis, is or would be
otherwise limited or restricted.
ARTICLE 8 Default
Section 8.1 Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement, any of
the Loan Documents, or any of them, shall prove incorrect or misleading in any
material respect when made or deemed to be made pursuant to Section 4.2 hereof;
or
(b) The Parent or the Borrower shall default in the payment of: (i) any
interest, fees or other amounts payable hereunder or under the Notes, any of the
Loan Documents, or any of them, to the Lenders, the Administrative Agent or the
Issuing Bank, when due and such default is not cured within three (3) Business
Days after the occurrence thereof; or (ii) any principal under any of the Notes,
reimbursement obligations in respect of any Letter of Credit, or any of them,
when due (including, without limitation, pursuant to Section 2.7 hereof); or
(c) The Parent or the Borrower shall default in the performance or
observance of any agreement or covenant contained in Sections 5.2(a), 5.10,
5.13, 5.16 or 5.17 hereof or in Article 6 (other than Section 6.4 hereof) or
Article 7 hereof; or
(d) The Parent or the Borrower shall default in the performance or
observance
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of any other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such default shall not be cured
within a period of thirty (30) days from the occurrence of such default; or
(e) There shall occur any default in the performance or observance of
any agreement or covenant or breach of any representation or warranty contained
in any of the Loan Documents (other than this Agreement or as otherwise provided
in this Section 8.1) by the Borrower, any of its Subsidiaries, the Parent or any
other obligor thereunder, which shall not be cured within a period of thirty
(30) days from the occurrence of such default; or
(f) There shall be entered and remain unstayed a decree or order for
relief in respect of the Borrower, any of its Subsidiaries or the Parent under
Title 11 of the United States Code, as now constituted or hereafter amended, or
any other applicable Federal or state bankruptcy law or other similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official of the Borrower, any of its Subsidiaries or the Parent, or of
any substantial part of their respective properties; or ordering the winding-up
or liquidation of the affairs of the Borrower, any of its Subsidiaries or the
Parent; or an involuntary petition shall be filed against the Borrower, any of
its Subsidiaries or the Parent and a temporary stay entered, and (i) such
petition and stay shall not be diligently contested or (ii) any such petition
and stay shall continue undismissed for a period of sixty (60) consecutive days;
or
(g) The Borrower, any of its Subsidiaries or the Parent shall file a
petition, answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable Federal
or state bankruptcy law or other similar law, or the Borrower, any of its
Subsidiaries or the Parent shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or taking
of possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Borrower, any of its Subsidiaries
or the Parent or of any substantial part of their respective properties, or the
Borrower, any of its Subsidiaries or the Parent shall fail generally to pay
their respective debts as they become due or shall be adjudicated insolvent; or
the Borrower, any of its Subsidiaries or the Parent shall take any action in
furtherance of any such action; or
(h) A judgment not covered by insurance shall be entered by any court
against the Borrower, any of its Subsidiaries or the Parent for the payment of
money which exceeds singly or in the aggregate with other such judgments,
$5,000,000 or a warrant of attachment or execution or similar process shall be
issued or levied against property of the Borrower, any of its Subsidiaries or
the Parent which, together with all other such property of the Borrower, any of
the Borrower's Subsidiaries or the Parent subject to other such process, exceeds
in value $5,000,000 in the aggregate, and if, within thirty (30) days after the
entry, issue or levy thereof, such judgment, warrant or process shall not have
been paid or discharged or stayed pending appeal or removed to bond, or if,
after the expiration of any such stay, such judgment, warrant or process shall
not have been paid or discharged or removed to bond; or
(i) There shall be at any time any "accumulated funding deficiency," as
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defined in ERISA or in Section 412 of the Code, with respect to any Plan
maintained by the Borrower or any of its Subsidiaries or any ERISA Affiliate, or
to which the Borrower or any of its Subsidiaries or any ERISA Affiliate has any
liabilities, or any trust created thereunder; or a trustee shall be appointed by
a United States District Court to administer any such Plan; or PBGC shall
institute proceedings to terminate any such Plan; or the Borrower or any of its
Subsidiaries or any ERISA Affiliate shall incur any liability to PBGC in
connection with the termination of any such Plan; or any Plan or trust created
under any Plan of the Borrower or any of its Subsidiaries or any ERISA Affiliate
shall engage in a "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) which would subject any such Plan, any
trust created thereunder, any trustee or administrator thereof, or any party
dealing with any such Plan or trust to the tax or penalty on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code; to
the extent any of the foregoing has had or could reasonably be expected to have
a Materially Adverse Effect; or
(j) There shall occur (i) any acceleration of the maturity of, or any
failure to pay at final maturity, any Indebtedness of the Borrower, any of its
Subsidiaries or the Parent in an aggregate principal amount exceeding
$5,000,000; (ii) any event of default which would permit such acceleration of
such Indebtedness described in clause (i) of this paragraph (j) and which event
of default has not been cured within any applicable cure period or waived in
writing prior to any declaration of an Event of Default or acceleration of the
Loans hereunder; or (iii) any default under any Interest Rate Hedge Agreement
having a notional principal amount of $5,000,000 or more; or
(k) One or more Licenses (other than Give-back Licenses) shall be
terminated or revoked, or any such License shall fail to be renewed at the
stated expiration thereof; or
(l) Any Loan Document or any material provision thereof, shall at any
time and for any reason be declared by a court of competent jurisdiction to be
null and void, or a proceeding shall be commenced by the Parent, the Borrower or
any of the Borrower's Subsidiaries seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Parent, the Borrower or any of the Borrower's
Subsidiaries shall deny that it has any liability or obligation for the payment
of principal or interest purported to be created under any Loan Document; or
(m) Any Security Document shall for any reason, fail or cease (except
by reason of lapse of time) to create a valid and perfected and first-priority
Lien on or Security Interest in any portion of the Collateral purported to be
covered thereby, subject only to Permitted Liens, except (i) as a result of the
sale or other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents or (ii) as a result of the Administrative
Agent's failure to maintain possession of any stock certificates, promissory
notes or other instruments delivered to it under any Security Document or the
Administrative Agent's failure to file necessary continuation financing
statements or make required filings with the Patent and Trademark Office of the
United States after delivery to the Administrative Agent by the Parent,
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the Borrower or the Borrower's Subsidiaries of executed copies of such financing
statements and filings; or
(n) The Borrower shall fail to make any payments required to be made to
the FCC or any other Governmental Authority with respect to any License held by
the Borrower or any of its Subsidiaries, or with respect to any Indebtedness or
other payment obligations relating thereto as and when due, which failure could
reasonably be expected to lead to the loss, termination, revocation, non-renewal
or material impairment of any License (other than any Give-back License) or
otherwise result in a Materially Adverse Effect; or
(o) The Borrower's right to use any "AT&T" trademark pursuant to the
Network License Agreement shall terminate (it being understood that, on or after
the date which is five (5) years from the Agreement Date, neither the
non-renewal of the Network License Agreement by AT&T Corp. nor the termination
of the Network License Agreement by AT&T Corp. as a result of a Disqualifying
Transaction (as defined in the Stockholders Agreement) shall constitute an Event
of Default hereunder); or
(p) The Borrower, any of its Subsidiaries or the Parent shall lose any
rights to the benefit of, or the occurrence of any default or the termination of
any rights under, any application, marketing or other material agreements, which
loss, occurrence or termination could reasonably be expected to result in a
Materially Adverse Effect (it being understood that, on or after the date which
is five (5) years from the Agreement Date, neither the non-renewal of the
Network License Agreement by AT&T Corp. nor the termination of the Network
License Agreement by AT&T Corp. as a result of a Disqualifying Transaction (as
defined in the Stockholders Agreement) shall in and of itself constitute an
Event of Default hereunder); or
(q) The failure of any party to the Securities Purchase Agreement, the
Stockholders' Agreement or the Bid Equity Commitments Documentation to comply
with any funding or contribution obligation under such Agreement and such
failure shall continue unremedied for a period of thirty (30) days; or
(r) Any Change of Control Event shall occur or exist; or
(s) There shall occur any default or event of default under the Bidding
Company Documentation by the Borrower or the Bidding Company in its obligations
to the Borrower, after giving effect to any cure periods set forth therein, and
such default or material event of default shall remain uncured for thirty (30)
days immediately following the expiration of such cure periods, if any.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 hereof (other than
an Event of Default under either Section 8.1(f) or (g) hereof) shall have
occurred and shall be continuing,
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the Administrative Agent, at the request of the Required Lenders subject to
Section 9.8(a) hereof, shall, by notice to the Borrower, formally declare that
an Event of Default has occurred, and (i) (A) terminate the Commitments, and/or
(B) declare the principal of and interest on the Loans and the Notes and all
other amounts owed to the Lenders and the Administrative Agent under this
Agreement, the Notes and any other Loan Documents to be forthwith due and
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived, anything in this Agreement, the Notes or any
other Loan Document to the contrary notwithstanding, and the Commitments shall
thereupon forthwith terminate and (ii) require the Borrower to, and the Borrower
shall thereupon, deposit in an interest bearing account with the Administrative
Agent, as cash collateral for the Obligations, an amount equal to the maximum
amount currently or at any time thereafter to be drawn on all outstanding
Letters of Credit, and the Borrower hereby pledges to the Administrative Agent,
the Lenders and the Issuing Bank and grants to them a security interest in, all
such cash as security for the Obligations.
(b) Upon the occurrence and continuance of an Event of Default
specified in either Section 8.1(f) or (g) hereof, all principal, interest and
other amounts due hereunder and under the Notes, and all other Obligations,
shall thereupon and concurrently therewith become due and payable and the
Commitments shall forthwith terminate and the principal amount of the Loans
outstanding hereunder shall bear interest at the Default Rate, all without any
action by the Administrative Agent, the Lenders, the Required Lenders, the
Issuing Bank or any of them, and without presentment, demand, protest or other
notice of any kind, all of which are expressly waived, anything in this
Agreement or in the other Loan Documents to the contrary notwithstanding.
(c) Upon acceleration of the Notes, as provided in subsection (a) or
(b) of this Section 8.2, the Administrative Agent and the Lenders shall have all
of the post-default rights granted to them, or any of them, as applicable, under
the Loan Documents and under Applicable Law.
(d) Following acceleration of the Notes as provided in subsection (a)
or (b) of this Section 8.2, provided the Required Lenders elect to initiate (or
direct the Administrative Agent to initiate) either (i) a civil proceeding for
the appointment of a receiver with respect to the Parent's or the Borrower's
assets or (ii) an involuntary bankruptcy (or similar) petition against Parent or
the Borrower, the Required Lenders shall have the right, but not the obligation,
to direct the Administrative Agent, to the extent permitted under Applicable
Law, to take possession of and to operate the Cellular Systems of the Borrower
and its Subsidiaries during the Pre-receivership Period, in accordance with the
terms of the Licenses and pursuant to the terms and subject to any limitations
contained in the Security Documents and, within guidelines established by the
Required Lenders prior to such action, to make any and all payments and
expenditures necessary or desirable in connection therewith, including, without
limitation, payment of wages as required under the Fair Labor Standards Act, as
amended, and any necessary withholding taxes to state or federal authorities. In
the event the guidelines referred to in the preceding sentence do not
contemplate payments or expenditures that subsequently arise in the ordinary
course after the
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Administrative Agent has begun to operate the systems or in the event that the
Required Lenders fail to agree upon the guidelines referred to in the preceding
sentence within six (6) Business Days after the Administrative Agent has begun
to operate any Cellular System, the Administrative Agent may, after giving three
(3) Business Days' notice to the Lenders of its intention to do so, make such
payments and expenditures as it deems reasonable and advisable in its sole
discretion to maintain the normal day-to-day operation of such systems. All
payments and expenditures incurred in connection with this provision in excess
of receipts shall constitute costs and expenses of performance and/or collection
reimbursable by the Parent and the Borrower pursuant to Section 11.2 hereof,
which until paid by the Parent and the Borrower shall be reimbursed to the
Administrative Agent by the Lenders pursuant to Section 9.11 hereof. Such
payments and expenditures in excess of receipts shall constitute Advances under
the Revolving Loan Commitment, not in excess of the Available Revolving Loan
Commitment. Advances made pursuant to this Section 8.2(d) shall bear interest as
provided in Section 2.3(d) hereof and shall be payable on demand. The making of
one (1) or more Advances under this Section 8.2(d) shall not create any
obligation on the part of the Lenders to make any additional Advances hereunder.
No exercise by the Administrative Agent and the Required Lenders of the rights
granted to any of them under this Section 8.2(d) shall constitute a waiver of
any other rights and remedies granted to the Administrative Agent and the
Lenders, or any of them, under this Agreement or any other Loan Document or at
law. The Parent and the Borrower hereby irrevocably appoints the Administrative
Agent, as administrative agent for the Lenders, the true and lawful attorney of
the Parent and the Borrower, in its name and stead and on its behalf, to
execute, receipt for or otherwise act in connection with any and all contracts,
instruments or other documents in connection with the completion and operating
of such systems in the exercise of the Administrative Agent and Lenders' rights
under this Section 8.2(d). Such power of attorney is coupled with an interest
and is irrevocable. The rights of the Administrative Agent and the Lenders under
this Section 8.2(d) shall be subject to the prior compliance with the
Communications Act and the FCC rules and policies promulgated thereunder to the
extent applicable to the exercise of such rights. If the Administrative Agent
(or the Lenders) take possession of the systems pursuant to this Section 8.2(d)
prior to initiation of the actions described in the first sentence of this
Section, the Administrative Agent shall initiate such action within the time
period established by the Required Lenders prior to such action.
(e) Upon acceleration of the Notes, as provided in subsection (a) or
(b) of this Section 8.2, the Administrative Agent, upon request of the Required
Lenders, shall, to the extent permitted by Applicable Law, have the right to the
appointment of a receiver for the properties and assets of the Borrower, its
Subsidiaries and the Parent, and the Borrower, for itself and, to the extent
permitted by Applicable Law, on behalf of its Subsidiaries, and the Parent,
hereby consent to such rights and such appointment and, to the extent permitted
by Applicable Law, hereby waives any objection the Borrower, any Subsidiary and
the Parent may have thereto or the right to have a bond or other security posted
by the Administrative Agent on behalf of the Lenders, in connection therewith.
The rights of the Administrative Agent under this Section 8.2(e) shall be
subject to its prior compliance with the Communications Act and the FCC rules
and policies promulgated thereunder to the extent applicable to the exercise of
such rights.
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(f) The rights and remedies of the Administrative Agent and the Lenders
hereunder shall be cumulative, and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments under this Agreement made to any of the Administrative Agent and
the Lenders or otherwise received by any of such Persons (from realization on
Collateral for the Obligations or otherwise) shall be paid over to the
Administrative Agent (if necessary) and distributed by the Administrative Agent
as follows: first, to the Administrative Agent's reasonable costs and expenses,
if any, incurred in connection with the collection of such payment or
prepayment, including, without limitation, any reasonable costs incurred by it
in connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c) hereof; second, to the Lenders and
the Administrative Agent for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to the Lenders pro rata on the basis of
their respective unpaid principal amounts (except as provided in Section 2.2(e)
hereof), to the payment of any unpaid interest which may have accrued on the
Obligations; fourth, to the Lenders pro rata until all Loans have been paid in
full (and, for purposes of this clause, obligations under Interest Rate Hedge
Agreements with the Lenders or their Affiliates or any of them shall be paid on
a pro rata basis with the Loans); fifth, to the Lenders pro rata on the basis of
their respective unpaid amounts, to the payment of any other unpaid Obligations;
and sixth, to the Borrower or as otherwise required by law.
ARTICLE 9 The Administrative Agent
Section 9.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints and authorizes, and hereby agrees that it will require any transferee
of any of its interest in its portion of the Loans and in its Notes irrevocably
to appoint and authorize, the Administrative Agent and the Issuing Bank to take
such actions as its agent on its behalf and to exercise such powers hereunder
and under the other Loan Documents as are delegated by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. None of
the Administrative Agent, the Issuing Bank, or any of their directors, officers,
employees, agents or counsel, shall be liable for any action taken or omitted to
be taken by it or them hereunder or in connection herewith, except for its or
their own gross negligence or willful misconduct as determined by a final,
non-appealable judicial order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Administrative Agent and the Issuing Bank
may treat each Lender, or the Person designated in the last notice filed with
the Administrative Agent, as the holder of all of the interests of such Lender
in its portion of the Loans and in its Notes until written notice of transfer,
signed by such Lender (or the Person
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designated in the last notice filed with the Administrative Agent) and by the
Person designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent and the
Issuing Bank may consult with Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, Atlanta,
Georgia, special counsel to the Administrative Agent and the Issuing Bank, or
with other legal counsel selected by it and shall not be liable for any action
taken or suffered by it in good faith in consultation with such counsel and in
reasonable reliance on such consultations.
Section 9.4 Documents. The Administrative Agent and the Issuing Bank shall
be under no duty to examine, inquire into, or pass upon the validity,
effectiveness or genuineness of this Agreement, any Note, any other Loan
Document, or any instrument, document or communication furnished pursuant hereto
or in connection herewith, and the Administrative Agent and the Issuing Bank
shall be entitled to assume that they are valid, effective and genuine, have
been signed or sent by the proper parties and are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Commitments and the Loans, the Lender which is an Affiliate of the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender and the Administrative Agent and Affiliates of the Administrative
Agent may accept deposits from, lend money to and generally engage in any kind
of business with the Parent, the Borrower, any of the Borrower's Subsidiaries or
any Affiliates of, or Persons doing business with, the Borrower and the Parent,
as if they were not affiliated with the Administrative Agent and without any
obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent and the Issuing Bank.
The duties and obligations of the Administrative Agent and the Issuing Bank
under this Agreement are only those expressly set forth in this Agreement. The
Administrative Agent and the Issuing Bank shall be entitled to assume that no
Default or Event of Default has occurred and is continuing unless it has actual
knowledge, or has been notified in writing by the Borrower or the Parent, of
such fact, or has been notified by a Lender in writing that such Lender
considers that a Default or an Event of Default has occurred and is continuing,
and such Lender shall specify in detail the nature thereof in writing. The
Administrative Agent shall not be liable hereunder for any action taken or
omitted to be taken except for its own gross negligence or willful misconduct as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction. The Administrative Agent shall provide each Lender with copies of
all documents and reports received by it under Article 6 hereof promptly upon
its receipt thereof. The Administrative Agent and the Issuing Bank shall provide
each Lender with copies of such other documents received from the Borrower or
the Parent as such Lender may reasonably request.
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Section 9.7 Security Documents. The Administrative Agent and the Issuing
Bank are hereby authorized to act on behalf of the Lenders, in its own capacity
and through other agents and sub-agents appointed by it, under the Security
Documents; provided, however, that the Administrative Agent and the Issuing Bank
shall not agree to the release of any Collateral, or any property encumbered by
any mortgage, pledge or security interest, except in compliance with Section
11.12 hereof.
Section 9.8 Action by the Administrative Agent and the Issuing Bank.
(a) The Administrative Agent and the Issuing Bank shall be entitled to
use its discretion with respect to exercising or refraining from exercising any
rights which may be vested in it by, and with respect to taking or refraining
from taking any action or actions which it may be able to take under or in
respect of, this Agreement, unless the Administrative Agent or the Issuing Bank
shall have been instructed by the Required Lenders to exercise or refrain from
exercising such rights or to take or refrain from taking such action; provided,
however, that the Administrative Agent and the Issuing Bank shall not exercise
any rights under Section 8.2(a) hereof without the request of the Required
Lenders (or, where expressly required, all the Lenders) unless time is of the
essence. The Administrative Agent and the Issuing Bank shall incur no liability
under or in respect of this Agreement with respect to anything which it may do
or refrain from doing in the reasonable exercise of its judgment or which may
seem to it to be necessary or desirable in the circumstances, except for its
gross negligence or willful misconduct as determined by a final, non-appealable
judicial order of a court of competent jurisdiction.
(b) The Administrative Agent and the Issuing Bank shall not be liable
to the Lenders or to any Lender or the Borrower, any of the Borrower's
Subsidiaries or the Parent in acting or refraining from acting under this
Agreement or any other Loan Document in accordance with the instructions of the
Required Lenders (or, where expressly required, all the Lenders), and any action
taken or failure to act pursuant to such instructions shall be binding on all
Lenders. The Administrative Agent and the Issuing Bank shall not be obligated to
take any action which is contrary to law or which would in the Administrative
Agent's and the Issuing Bank's reasonable opinion subject the Administrative
Agent and the Issuing Bank to liability.
Section 9.9 Notice of Default or Event of Default. In the event that the
Administrative Agent, the Issuing Bank or any Lender shall acquire actual
knowledge, or shall have been notified, of any Default or Event of Default, the
Administrative Agent and the Issuing Bank or such Lender shall promptly notify
the Lenders and the Administrative Agent and the Issuing Bank, as applicable
(provided that failure to give such notice shall not result in any liability on
the part of such Lender or the Administrative Agent and the Issuing Bank), and
the Administrative Agent and the Issuing Bank shall take such action and assert
such rights under this Agreement and the other Loan Documents as the Required
Lenders shall request in writing, and the Administrative Agent and the Issuing
Bank shall not be subject to any liability by reason of its acting pursuant to
any such request. If the Required Lenders shall fail to request the
Administrative Agent and the Issuing Bank to take action or to
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assert rights under this Agreement or any other Loan Documents in respect of any
Default or Event of Default within ten (10) days after their receipt of the
notice of any Default or Event of Default from the Administrative Agent, the
Issuing Bank or any Lender, or shall request inconsistent action with respect to
such Default or Event of Default, the Administrative Agent and the Issuing Bank
may, but shall not be required to, take such action and assert such rights
(other than rights under Article 8 hereof) as it deems in its discretion to be
advisable for the protection of the Lenders; provided, however, that if the
Required Lenders have instructed the Administrative Agent and the Issuing Bank
not to take such action or assert such right, in no event shall the
Administrative Agent act and the Issuing Bank contrary to such instructions.
Section 9.10 Responsibility Disclaimed. The Administrative Agent and the
Issuing Bank shall not be under any liability or responsibility whatsoever as
Administrative Agent:
(a) To the Borrower, the Parent or any other Person as a consequence of
any failure or delay in performance by or any breach by, any Lender or Lenders
of any of its or their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any failure or delay
in performance by, or any breach by, (i) the Borrower or the Parent of any of
its obligations under this Agreement or the Notes or any other Loan Document or
(ii) any Subsidiary of the Borrower or any other obligor under any other Loan
Document;
(c) To any Lender or Lenders, for any statements, representations or
warranties in this Agreement, or any other document contemplated by this
Agreement or any information provided pursuant to this Agreement, any other Loan
Document or any other document contemplated by this Agreement, or for the
validity, effectiveness, enforceability or sufficiency of this Agreement, the
Notes, any other Loan Document or any other document contemplated by this
Agreement; or
(d) To any Person for any act or omission other than that arising from
gross negligence or willful misconduct of the Administrative Agent as determined
by a final, non-appealable judicial order of a court of competent jurisdiction.
Section 9.11 Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Issuing Bank (to the extent not reimbursed by the
Borrower) pro rata according to their respective Commitment Ratios, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including fees and expenses of
experts, agents, consultants and counsel) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent and the Issuing Bank in any way relating to or arising out
of this Agreement, any other Loan Document or any other document
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contemplated by this Agreement or any other Loan Document or any action taken or
omitted by the Administrative Agent and the Issuing Bank or under this
Agreement, any other Loan Document or any other document contemplated by this
Agreement; provided, however, that no Lender shall be liable to the
Administrative Agent and the Issuing Bank or for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of such Person as determined by a final, non-appealable judicial
order of a court of competent jurisdiction.
Section 9.12 Credit Decision. Each Lender represents and warrants to each
other and to the Administrative Agent and the Issuing Bank that:
(a) In making its decision to enter into this Agreement and to make its
portion of the Loans it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower and
the Parent and that it has made an independent credit judgment, and that it has
not relied upon the Administrative Agent, the Issuing Bank or information
provided by the Administrative Agent and the Issuing Bank (other than
information provided to the Administrative Agent and the Issuing Bank by the
Borrower and the Parent and forwarded by the Administrative Agent and the
Issuing Bank to the Lenders); and
(b) So long as any portion of the Loans remains outstanding or such
Lender has an obligation to make its portion of Advances hereunder, it will
continue to make its own independent evaluation of the Collateral and of the
financial condition and affairs of the Borrower and the Parent.
Section 9.13 Successor Administrative Agent or Issuing Bank. Subject to the
appointment and acceptance of a successor Administrative Agent or Issuing Bank
as provided below, the Administrative Agent or Issuing Bank, as applicable, may
resign at any time by giving written notice thereof to the Lenders and the
Borrower and the Parent and may be removed at any time for cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent or Issuing Bank, as
applicable, which appointment shall, prior to a Default, be subject to the
consent of the Borrower and the Parent, acting reasonably. If no successor
Administrative Agent or Issuing Bank, as applicable, shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent or Issuing Bank,
as applicable, gave notice of resignation or the Required Lenders' removal of
the retiring Administrative Agent or Issuing Bank, as applicable, then the
retiring Administrative Agent or Issuing Bank, as applicable, may, on behalf of
the Lenders, appoint a successor Administrative Agent or Issuing Bank, as
applicable, which shall be any Lender or a commercial Lender organized or
licensed under the laws of the United States of America or any political
subdivision thereof which has combined capital and reserves in excess of
$250,000,000. Such appointment shall, prior to a Default, be subject to the
consent of the Borrower and the Parent, acting reasonably. Upon the acceptance
of any appointment as Administrative Agent or Issuing Bank, as applicable,
hereunder by a successor Administrative Agent or Issuing Bank, as applicable,
such successor Administrative Agent or Issuing Bank, as applicable, shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Administrative
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Agent or Issuing Bank, as applicable, and the retiring Administrative Agent or
Issuing Bank, as applicable, shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's or Issuing Bank's, as applicable, resignation or removal hereunder as
Administrative Agent or Issuing Bank, as applicable, the provisions of this
Article shall continue in effect for its benefit in respect of any actions taken
or omitted to be taken by it while it was acting as the Administrative Agent or
Issuing Bank, as applicable.
Section 9.14 Collateral Actions. Each of the parties hereto acknowledges and
agrees that all provisions herein and under any Security Document relating to
rights and remedies under any Security Document shall be exercised only upon the
direction of the Required Lenders (except as expressly set forth in Section 9.8
hereof), and that the provisions of this Section 9.14 may not be amended except
with the consent of the Required Lenders.
Section 9.15 Delegation of Duties. The Administrative Agent and the Issuing
Bank may execute any of its duties under the Loan Documents by or through agents
or attorneys selected by it using reasonable care, and shall be entitled to
advice of counsel concerning all matters pertaining to such duties.
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair. If with
respect to any proposed Eurodollar Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make its portion of such type of Eurodollar Advances
shall be suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (adopted after the Agreement
Date), or any change (after the Agreement Date) in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender with any directive (whether or not having the force of law) of any
such authority, central bank or comparable agency (issued after the Agreement
Date), shall make it unlawful or impossible for any Lender to make, maintain or
fund its portion of Eurodollar Advances, such Lender shall so notify the
Administrative Agent, and the
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Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower. Before giving any notice to the Administrative Agent pursuant
to this Section 10.2, such Lender shall designate a different lending office if
such designation will avoid the need for giving such notice and will not, in the
sole judgment of such Lender, be otherwise materially disadvantageous to such
Lender. Upon receipt of such notice, notwithstanding anything contained in
Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of such Lender's portion of each affected Eurodollar Advance,
together with accrued interest thereon, on either (a) the last day of the then
current Interest Period applicable to such affected Eurodollar Advances if such
Lender may lawfully continue to maintain and fund its portion of such Eurodollar
Advance to such day or (b) immediately if such Lender may not lawfully continue
to fund and maintain its portion of such affected Eurodollar Advances to such
day. Concurrently with repaying such portion of each affected Eurodollar
Advance, the Borrower may borrow a Base Rate Advance from such Lender, and such
Lender shall make such Advance, if so requested, in an amount such that the
outstanding principal amount of the affected Note or Notes held by such Lender
shall equal the outstanding principal amount of such Note or Notes immediately
prior to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any Applicable Law, or
any change in any Applicable Law (adopted after the Agreement Date), or any
change (after the Agreement Date) in interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by any Lender with any
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency (issued after the Agreement Date):
(1) shall subject any Lender to any tax, duty or other charge with
respect to its obligation to make its portion of Eurodollar Advances, or its
portion of existing Eurodollar Advances, or shall change the basis of taxation
of payments to any Lender of the principal of or interest on its portion of
Eurodollar Advances or in respect of any other amounts due under this Agreement,
in respect of its portion of Eurodollar Advances or its obligation to make its
portion of Eurodollar Advances (except for changes in the rate or method of
calculation of tax on the overall net income of such Lender and except other
Excluded Taxes); or
(2) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding any included in an applicable Eurodollar
Reserve Percentage), special deposit, capital adequacy, assessment or other
requirement or condition against assets of, deposits with or for the account of,
or commitments or credit extended by, any Lender or shall impose on any Lender
or the London interbank borrowing market any other condition affecting its
obligation to make its portion of such Eurodollar Advances or its portion of
existing Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any of its portion of Eurodollar Advances, or to reduce
the amount of any sum
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received or receivable by such Lender under this Agreement or under its Note
with respect thereto, then, on the earlier of a date within ten (10) days after
demand by such Lender or the Maturity Date, the Borrower agrees to pay to such
Lender such additional amount or amounts as will compensate such Lender for such
increased costs. Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 10.3 and will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole judgment of such Lender made in good faith, be otherwise
disadvantageous to such Lender.
(b) Any Lender claiming compensation under this Section 10.3 shall
provide the Borrower with a written certificate setting forth the additional
amount or amounts to be paid to it hereunder and calculations therefor in
reasonable detail. Such certificate shall be presumptively correct absent
manifest error. Notwithstanding the foregoing, the Borrower shall only be
obligated to compensate such Lender for any amount under this subsection arising
or occurring during (i) in the case of each such request for compensation, any
time or period commencing not more than ninety (90) days prior to the date on
which such Lender submits such request and (ii) any other time or period during
which, because of the unannounced retroactive application of such law,
regulation, interpretation, request or directive, such Lender could not have
known that the resulting reduction in return might arise. In determining such
amount, such Lender may use any reasonable averaging and attribution methods. If
any Lender demands compensation under this Section 10.3, the Borrower may at any
time, upon at least five (5) Business Days' prior notice to such Lender, prepay
in full such Lender's portion of the then outstanding Eurodollar Advances,
together with accrued interest thereon to the date of prepayment, along with any
reimbursement required under Section 2.11 hereof. Concurrently with prepaying
such portion of Eurodollar Advances the Borrower may borrow a Base Rate Advance,
or a Eurodollar Advance not so affected, from such Lender, and such Lender
shall, if so requested, make such Advance in an amount such that the outstanding
principal amount of the affected Note or Notes held by such Lender shall equal
the outstanding principal amount of such Note or Notes immediately prior to such
prepayment.
(c) The Administrative Agent shall use reasonable efforts to determine
whether or not the circumstances which have caused the claim for compensation
under this Section 10.3 shall continue and shall notify the Lenders and the
Borrower immediately if it shall determine that such circumstances no longer
exist.
Section 10.4 Effect On Other Advances. If notice has been given pursuant to
Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any Lender to
make its portion of any type of Eurodollar Advance, or requiring such Lender's
portion of Eurodollar Advances to be repaid or prepaid, then, unless and until
such Lender notifies the Borrower that the circumstances giving rise to such
repayment no longer apply, all amounts which would otherwise be made by such
Lender as its portion of Eurodollar Advances shall, unless otherwise notified by
the Borrower, be made instead as Base Rate Advances.
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Section 10.5 Claims for Increased Costs and Taxes. In the event that any
Lender shall decline to make Eurodollar Rate Loans pursuant to Sections 10.1 and
10.2 hereof or shall have notified the Borrower that it is entitled to claim
compensation pursuant to Section 10.3, 2.10(b) or 2.13 hereof or is unable to
complete the form required or subject to withholding as provided in Section 2.14
hereof (each such lender being an "Affected Lender"), the Borrower at its own
cost and expense may designate a replacement lender (a "Replacement Lender") to
assume the Commitment and the obligations of any such Affected Lender hereunder,
and to purchase the outstanding Loans of such Affected Lender and such Affected
Lender's rights hereunder and with respect thereto, and within ten (10) Business
Days of such designation the Affected Lender shall (a) sell to such Replacement
Lender, without recourse upon, warranty by or expense to such Affected Lender,
by way of an Assignment and Assumption Agreement substantially in the form of
Exhibit M attached hereto, for a purchase price equal to (unless such Lender
agrees to a lesser amount) the outstanding principal amount of the Loans of such
Affected Lender, plus all interest accrued and unpaid thereon and all other
amounts owing to such Affected Lender hereunder, including without limitation,
any amount which would be payable to such Affected Lender pursuant to Section
2.11 hereof, and (b) assign the Commitment of such Affected Lender and upon such
assumption and purchase by the Replacement Lender, such Replacement Lender shall
be deemed to be a "Lender" for purposes of this Agreement and such Affected
Lender shall cease to be a "Lender" for purposes of this Agreement and shall no
longer have any obligations or rights hereunder (other than any obligations or
rights which according to this Agreement shall survive the termination of the
Commitment).
ARTICLE 11 Miscellaneous
Section 11.1 Notices.
(a) Except as otherwise expressly provided herein, all notices and
other communications under this Agreement and the other Loan Documents (unless
otherwise specifically stated therein) shall be in writing and shall be deemed
to have been given three (3) Business Days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, or one (1)
Business Day after being entrusted to a reputable commercial overnight delivery
service for next day delivery, or when sent on a Business Day prior to 5:00 p.m.
(New York, New York time) by telecopy addressed to the party to which such
notice is directed at its address determined as provided in this Section 11.1.
All notices and other communications under this Agreement shall be given to the
parties hereto at the following addresses:
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(i) If to the Borrower or the Parent, to it at:
Tritel Holding Corp./Tritel, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇. ▇. ▇▇▇▇▇▇, ▇▇. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tritel, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Sixteenth Floor
191 Peachtree Street, N.E.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Lenders or the Issuing Bank, to them at the
addresses set forth on Schedule 9 attached hereto.
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Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof and the failure to provide such copies shall
not affect the validity of the notice given to the primary recipient.
(b) Any party hereto may change the address to which notices shall be
directed under this Section 11.1 by giving ten (10) days' prior written notice
of such change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, and any waiver, amendment or consent in
connection with any of the foregoing, and the transactions contemplated
hereunder and thereunder and the making of the initial Advance hereunder
(whether or not such Advance is made), including, but not limited to, the fees
and disbursements of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
special counsel for the Administrative Agent;
(b) all reasonable out-of-pocket expenses of the Administrative Agent
and the Lenders in connection with the restructuring and "work out" of the
transactions contemplated in this Agreement or the other Loan Documents,
including, but not limited to, the reasonable fees and disbursements of any
experts, agents or consultants and of special counsel for the Administrative
Agent and the Lenders; and
(c) all reasonable out-of-pocket costs and expenses of obtaining
performance under this Agreement or the other Loan Documents and all reasonable
out-of-pocket costs and expenses of collection if an Event of Default occurs in
the payment of the Notes, which in each case shall include reasonable fees and
out-of-pocket expenses of counsel for the Administrative Agent and the Lenders.
Section 11.3 Waivers. The rights and remedies of the Administrative Agent
and the Lenders under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Required
Lenders, or the Lenders, or any of them, in exercising any right, shall operate
as a waiver of such right. The Administrative Agent and the Lenders expressly
reserve the right to require strict compliance with the terms of this Agreement
in connection with any future funding of a Request for Advance. In the event the
Lenders decide to fund a Request for Advance at a time when the Borrower is not
in strict compliance with the terms of this Agreement, such decision by the
Lenders shall not be deemed to constitute an undertaking by the Lenders to fund
any further Request for Advance or preclude the Lenders or the Administrative
Agent from exercising any rights available under the Loan Documents or at law or
equity. Any waiver or indulgence granted by the Administrative Agent, the
Lenders, or the Required Lenders, or any of them, shall not constitute a
modification of this
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Agreement or any other Loan Document, except to the extent expressly provided in
such waiver or indulgence, or constitute a course of dealing at variance with
the terms of this Agreement or any other Loan Document such as to require
further notice of their intent to require strict adherence to the terms of this
Agreement or any other Loan Document in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the
Administrative Agent and each of the Lenders are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived to the extent
permitted by Applicable Law, to set off and to appropriate and to apply any and
all deposits (general or special, time or demand, including, but not limited to,
Indebtedness evidenced by certificates of deposit, in each case whether matured
or unmatured) and any other Indebtedness at any time held or owing by any Lender
or the Administrative Agent, to or for the credit or the account of the Borrower
or any of its Subsidiaries, against and on account of the obligations and
liabilities of the Borrower to the Lenders and the Administrative Agent,
including, but not limited to, all Obligations and any other claims of any
nature or description arising out of or connected with this Agreement, the Notes
or any other Loan Document, irrespective of whether (a) any Lender or the
Administrative Agent shall have made any demand hereunder or (b) any Lender or
the Administrative Agent shall have declared the principal of and interest on
the Loans and other amounts due hereunder to be due and payable as permitted by
Section 8.2 hereof and although such obligations and liabilities or any of them
shall be contingent or unmatured. Upon direction by the Administrative Agent
with the consent of the Lenders, each Lender holding deposits of the Borrower or
any of its Subsidiaries shall exercise its set-off rights as so directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder, under the Notes or under any other Loan Document without
the prior written consent of each of the Lenders.
(b) Each Lender may (A) sell assignments or participations of one
hundred percent (100%) or less of its interests hereunder to one or more
Affiliates of such Lender or an Approved Fund, (B) grant any Federal Reserve
Bank collateral security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued by such Federal
Reserve Bank without limitation and (C) in the case of any Lender that is a fund
that invests in bank loans, such Lender may pledge all or any portion of its
Loans and Notes to any trustee for, or any other representative of, holders of
obligations owed, by such fund, as security for such obligations; provided that
any foreclosure or similar action by such trustee or representatives shall be
subject to the provisions of this Section concerning assignments; provided,
however, that no such collateral assignment shall relieve such Lender of its
rights and obligations hereunder.
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(c) Each of the Lenders may at any time enter into assignment
agreements or participations with one or more other Lenders or other Persons
pursuant to which such Lender may assign or participate its interests under this
Agreement and the other Loan Documents, including its interest in any particular
Advance or portion thereof, provided that all assignments and participations
(other than assignments to another Lender or an Approved Fund, which may be made
without limitation, whether as to dollar amount or otherwise, so long as, if
such assignment takes place after the occurrence and during the continuance of
an Event of Default such assignment is made with the prior written consent of
the Administrative Agent, which consent shall not be unreasonably withheld or
delayed, and other assignments and participations described in Section 11.5(b)
hereof which may be made without any limitation whatsoever) shall be in minimum
principal amounts of the lesser of (x) the entire remaining amount of such
Lender's Loans and Commitments; (y) $5,000,000 and (z) such other amount as may
be agreed to in writing by the Administrative Agent and the Borrower, and shall
be subject to the following additional terms and conditions:
(i) No assignment shall be sold without the prior consent of the
Administrative Agent and, prior to the occurrence of and during the continuation
of an Event of Default, the consent of the Borrower, which consents shall not be
unreasonably withheld or delayed; provided, however, that during an Event of
Default the Borrower shall receive notice of such assignment;
(ii) Any Person purchasing a participation or an assignment of any
portion of the Loans from any Lender shall be required to represent and warrant
that its purchase shall not constitute a "prohibited transaction" (as defined in
Section 4.1(m) hereof);
(iii) Assignments permitted hereunder (including the assignment of
any Advance or portion thereof) may be made with all voting rights, and shall be
made pursuant to an Assignment and Assumption Agreement substantially in the
form of Exhibit M attached hereto;
(iv) An administrative fee of $3,500 shall be payable to the
Administrative Agent by the assigning Lender at the time of any assignment
hereunder;
(v) Any Lender making an assignment of its rights and obligations
under the Revolving Loan Commitment shall also make an assignment of an equal
percentage of its outstanding loans under its Revolving Loan Commitment;
(vi) No participation agreement shall confer any rights under this
Agreement or any other Loan Document to any purchaser thereof, or relieve any
issuing Lender from any of its obligations under this Agreement, and all actions
hereunder shall be conducted as if no such participation had been granted;
provided, however, that any participation agreement may confer on the
participant the right to approve or disapprove decreases in the interest rate or
fees or in the dates of payment thereof, increases in the principal amount of
the Loans participated in by such participant, decreases in fees, extensions of
the Maturity Date or other principal payment date for the Loans or of a
scheduled reduction of either Commitment or
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releases of all or substantially all of the Collateral or any Subsidiary
Guaranty (other than in accordance with Section 11.12(d) hereof); and provided
further, however, that, notwithstanding the foregoing, prior to the occurrence
and during the continuance of an Event of Default, no participation agreement
may be made under this Section 11.5(c)(vi) with any Competitor of the Borrower
without the prior written consent of the Borrower, such consent not to be
unreasonably withheld;
(vii) Each Lender agrees to provide the Administrative Agent and
the Borrower with prompt written notice of any issuance of participations in or
assignments of its interests hereunder;
(viii) No assignment, participation or other transfer of any
rights hereunder or under the Notes shall be effected that would result in any
interest requiring registration under the Securities Act of 1933, as amended, or
qualification under any state securities law;
(ix) No such assignment may be made to (A) any bank or other
financial institution (excluding funds) unless (1) such bank or other financial
institution either (x) has a minimum capital and surplus of $500,000,000, or (y)
is "adequately capitalized" (as such term is defined in 12 USCA Section
1831(b)(1)(B) as in effect on the Agreement Date) and (2) a receiver or
conservator (including, without limitation, the Federal Deposit Insurance
Corporation, the Resolution Trust Company or the Office of Thrift Supervision)
has not been appointed with respect to such bank or other financial institution,
(B) any fund unless such fund either (1) invests in commercial loans or (2) has
total assets in excess of $125,000,000, or (C) any other Person unless such
Person either (1) is an "accredited investor" (as defined in Regulation D of the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder) or (2) has total assets in excess of $100,000,000; and
(x) If applicable, each Lender shall, and shall cause each of its
assignees to, provide to the Administrative Agent on or prior to the effective
date of any assignment an appropriate Internal Revenue Service form as required
by Applicable Law supporting such Lender's or assignee's position that no
withholding by the Borrower or the Administrative Agent for United States income
tax payable by such Lender or assignee in respect of amounts received by it
hereunder is required. For purposes of this Agreement, an appropriate Internal
Revenue Service form shall mean Form 1001 (Ownership Exemption or Reduced Rate
Certificate of the United States Department of Treasury), Form 4224 (Exemption
from Withholding of Tax on Income Effectively Connected with the Conduct of a
Trade or Business in the United States), Form W-8 (Certificate of Foreign
Status) or any successor or related forms adopted by the relevant United States
taxing authorities.
(d) Except as specifically set forth in Section 11.5(c) hereof, nothing
in this Agreement or the Notes, expressed or implied, is intended to or shall
confer on any Person other than the respective parties hereto and thereto and
their successors and assignees permitted hereunder and thereunder any benefit or
any legal or equitable right, remedy or other claim under
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this Agreement or the Notes.
(e) In the case of any participation, all amounts payable by the
Borrower under the Loan Documents shall be calculated and made in the manner and
to the parties hereto as if no such participation had been sold.
(f) The provisions of this Section 11.5 shall not apply to any purchase
of participations among the Lenders pursuant to Section 2.12(b) hereof.
(g) The Administrative Agent, acting, for this purpose only, as agent
of the Borrower shall maintain, at no extra charge or cost to the Borrower, a
register (the "Register") at the address to which notices to the Administrative
Agent are to be sent under Section 11.1 hereof on which Register the
Administrative Agent shall enter the name, address and taxpayer identification
number (if provided) of the registered owner of the Loans evidenced by a
Registered Note or, upon the request of the registered owner, for which a
Registered Note has been requested. A Registered Note and the Loans evidenced
thereby may be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer of such Registered Note and the
Loans evidenced thereby on the Register. Any assignment or transfer of all or
part of such Loans and the Registered Note evidencing the same shall be
registered on the Register only upon compliance with the other provisions of
this Section 11.5 and surrender for registration of assignment or transfer of
the Registered Note evidencing such Loans, duly endorsed by (or accompanied by a
written instrument of assignment or transfer duly executed by) the Registered
Noteholder thereof, and thereupon one or more new Registered Notes in the same
aggregate principal amount shall be issued to the designated assignee(s) or
transferee(s) and, if less than the aggregate principal amount of such
Registered Notes is thereby transferred, the assignor or transferor. Prior to
the due presentment for registration of transfer of any Registered Note, the
Borrower and the Administrative Agent shall treat the Person in whose name such
Loans and the Registered Note evidencing the same is registered as the owner
thereof for the purpose of receiving all payments thereon and for all other
purposes, notwithstanding any notice to the contrary.
(h) The Register shall be available for inspection by the Borrower and
any Lender at any reasonable time during the Administrative Agent's regular
business hours upon reasonable prior notice.
Section 11.6 Accounting Principles. All references in this Agreement to GAAP
shall be to such principles as in effect from time to time. All accounting terms
used herein without definition shall be used as defined under GAAP as in effect
from time to time; provided, however, that if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any provision
hereof to eliminate the effect of any change occurring after the date hereof in
GAAP or in the application thereof on the operations of such provision (or if
the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose) regardless of whether any
such notice is given before or after such change in GAAP or in the application
105
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. All references to the financial statements of the Borrower
and to its Net Income, Operating Cash Flow, Indebtedness for Money Borrowed,
Interest Expense, and other such terms shall be deemed to refer to such items of
the Borrower and its Subsidiaries, on a fully consolidated basis.
Section 11.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be construed
in accordance with and governed by the internal laws of the State of New York
applicable to agreements made and to be performed in the State of New York. If
any action or proceeding shall be brought by the Administrative Agent or any
Lender hereunder or under any other Loan Document in order to enforce any right
or remedy under this Agreement or under any Note or any other Loan Document, the
Borrower hereby consents and will, and the Borrower will cause each Subsidiary
to, submit to the jurisdiction of any state or federal court of competent
jurisdiction sitting within the area comprising the Southern District of New
York on the Agreement Date. To the extent permitted by Applicable Law, the
Borrower, for itself and on behalf of its Subsidiaries, hereby agrees that
service of the summons and complaint and all other process which may be served
in any such suit, action or proceeding may be effected by mailing by registered
mail a copy of such process to the offices of the Borrower at the address given
in Section 11.1 hereof and that personal service of process shall not be
required. Nothing herein shall be construed to prohibit service of process by
any other method permitted by law, or the bringing of any suit, action or
proceeding in any other jurisdiction. To the extent permitted by Applicable Law,
the Borrower agrees that final judgment in such suit, action or proceeding shall
be conclusive and may be enforced in any other jurisdiction by suit on the
judgment or in any other manner provided by Applicable Law. The Borrower, for
itself and on behalf of its Subsidiaries, hereby irrevocably waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of venue of any such suit, action or proceeding brought in any
such court and any claim that such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable hereunder
or under the Notes exceed the maximum rate of interest allowed by Applicable
Law, and in the event any
106
such payment is inadvertently made by the Borrower or inadvertently received by
the Administrative Agent or any Lender, then such excess sum shall be credited
as a payment of principal, unless the Borrower shall notify the Administrative
Agent or such Lender, in writing, that it elects to have such excess sum
returned forthwith. It is the express intent hereof that the Borrower not pay
and the Administrative Agent and the Lenders not receive, directly or indirectly
in any manner whatsoever, interest in excess of that which may legally be paid
by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base Rate and the
Eurodollar Rate as reference rates for the determination of interest on the
Loans, the Lenders shall be under no obligation to obtain funds from any
particular source in order to charge interest to the Borrower at interest rates
related to such reference rates.
Section 11.11 Table of Contents and Headings. The Table of Contents and the
headings of the various subdivisions used in this Agreement are for convenience
only and shall not in any way modify or amend any of the terms or provisions
hereof, nor be used in connection with the interpretation of any provision
hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any term
hereof may be amended orally, nor may any provision hereof be waived orally but
only by an instrument in writing signed by the Required Lenders and the
Administrative Agent at the direction of the Required Lenders and, in the case
of an amendment, by the Parent and the Borrower, except that in the event of (a)
any increase in the amount of any Commitment, (b) any delay or extension in the
terms of repayment of the Loans or any mandatory reductions in either Commitment
provided in Sections 2.5 or 2.7 hereof, (c) any reduction in principal, interest
or fees due hereunder or postponement of the payment thereof without a
corresponding payment by the Borrower, (d) any release of all or a substantial
part of the Collateral for the Loans, except in connection with a merger, sale
or other disposition otherwise permitted hereunder (in which case such release
shall require no further approval by the Lenders), (e) any waiver of any Default
due to the failure by the Borrower to pay any sum due to any of the Lenders
hereunder, (f) any release of any Guaranty of all or any portion of the
Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder (in which case, such release shall require no
further approval by the Lenders) or (g) any amendment of this Section 11.12, the
definition of Required Lenders or of any Section herein to the extent that such
Section requires action by all Lenders, any such amendment or waiver or consent
may be made only by an instrument in writing signed by each of the Lenders and
the Administrative Agent and, in the case of an amendment, by the Parent and the
Borrower. Any amendment to any provision hereunder governing the rights,
obligations or liabilities of the Administrative Agent may be made only by an
instrument in writing signed by the Administrative Agent and by each of the
Lenders. In addition to, and not in derogation of, Section 2.15 hereof, the
parties hereto hereby agree that (a) the provisions of Section 2.15 hereof may
be modified or waived only by a writing signed by the Issuing Banks and (b) that
the terms "Revolving Loan Commitment" and "Available Revolving Loan Commitment
may only be modified or amended by a writing signed by the Issuing Bank and such
other Persons as
107
determined in accordance with this Section 11.12. No term or provision of any
Security Document may be amended or waived orally, but only by an instrument in
writing signed by the Administrative Agent with the direction of the Required
Lenders and, in the case of an amendment, by such of the Parent, the Borrower
and the Borrower's Subsidiaries as are party thereto; provided, however, that
the written consent of all of the Lenders shall be required with respect to any
amendment to or waiver of the provisions of any Security Document which would
have the effect of (i) releasing all or a substantial part of the Collateral for
the Loans, other than in connection with any merger, sale or other disposition
otherwise permitted hereunder (which shall require no further approval by the
Lenders) or (ii) releasing any Guarantor from all or any portion of the
Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder (in which case, such release shall require no
further approval by the Lenders). The Lenders hereby instruct and authorize the
Administrative Agent to enter into the Security Documents (and all other Loan
Documents) referred to in Section 3.1 hereof as of the Agreement Date and any
other Security Documents required to be entered into by the Borrower or any of
its Subsidiaries hereunder.
Section 11.13 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
will embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Lender to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 Directly or Indirectly. If any provision in this Agreement
refers to any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All covenants,
agreements, statements, representations and warranties made herein or in any
certificate delivered pursuant hereto (i) shall be deemed to have been relied
upon by the Administrative Agent and each of the Lenders notwithstanding any
investigation heretofore or hereafter made by any of them and (ii) shall survive
the execution and delivery of the Notes and shall continue in full force and
effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.11, 2.13, 5.11, 10.3 and 11.2 hereof, shall, except to the extent
specifically provided therein, survive the termination of this Agreement and the
payment and performance of all Obligations.
108
Section 11.17 Senior Debt. The Obligations are secured by the Security
Documents and are intended by the parties hereto to be senior in right of
payment to all other Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of the Administrative
Agent and each of the Lenders hereunder are several, not joint.
Section 11.19 Confidentiality. Each of the Administrative Agent and the
Lenders shall hold all non-public, proprietary or confidential information
(which has been identified as such by the Borrower) obtained pursuant to the
requirements of this Agreement in accordance with their customary procedures for
handling confidential information of this nature and in accordance with safe and
sound banking or investing practices; provided, however, that each of the
Administrative Agent and the Lenders may make disclosure of any such information
to their examiners, regulators, Affiliates, outside auditors, counsel,
consultants, appraisers and other professional advisors in connection with this
Agreement or as reasonably required by any proposed syndicate member or any
proposed transferee or participant in connection with the contemplated transfer
of any Note or participation therein, provided each of the foregoing is advised
of this provision and agrees to be bound by the terms hereof; and provided
further, however, that, notwithstanding the foregoing, prior to the occurrence
and during the continuance of an Event of Default, no disclosure may be made to
any Competitor of the Borrower without (i) the prior written consent of the
Borrower, such consent not to be unreasonably withheld, or (ii) as required or
requested by any governmental authority or representative thereof, including any
securities exchange or self-regulatory organization, having examination
authority over such Person or in connection with the enforcement hereof or of
any Loan Document or related document or pursuant to legal process or with
respect to any litigation between or among the Borrower and any of the Lenders
or involving any Lender. In no event shall any Lenders be obligated or required
to return any materials furnished to it by the Borrower. The foregoing
provisions shall not apply to a Lender with respect to information that (i) is
or becomes generally available to the public (other than through such Lender) or
(ii) comes into the possession of such Lender in a manner not involving a breach
of a duty of confidentiality owing to the Borrower.
ARTICLE 12 Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF, AND ON BEHALF
OF ITS SUBSIDIARIES, THE PARENT AND EACH OF THE ADMINISTRATIVE AGENT, THE
LENDERS AND THE ISSUING BANK, HEREBY AGREE TO WAIVE AND HEREBY WAIVE THE RIGHT
TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN
WHICH THE BORROWER, ANY OF THE BORROWER'S SUBSIDIARIES, THE PARENT, ANY OF THE
LENDERS, THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR
109
ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND
THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR
THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS
SECTION 12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES
ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF
THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY LENDER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT, THE ISSUING BANK OR ANY
LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
110
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: TRITEL HOLDING CORP., a Delaware
corporation
By:
--------------------------------------
Name:
Title:
PARENT: TRITEL, INC., a Delaware corporation
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 1
ADMINISTRATIVE AGENT, TORONTO DOMINION (TEXAS), INC.,
LENDERS AND ISSUING BANK: as Administrative Agent and Lender
By:
--------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK, HOUSTON
AGENCY, as Issuing Bank
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 2
BARCLAYS BANK PLC, as Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 3
NATIONSBANK, N.A., as Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 4
ABN AMRO BANK N.V., as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 5
THE BANK OF NEW YORK, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 6
THE BANK OF NOVA SCOTIA, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 7
THE BANK OF TOKYO-MITSUBISHI
TRUST COMPANY, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 8
CIBC INC., as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 9
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 10
CREDIT LYONNAIS NEW YORK BRANCH, as a
Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 11
DRESDNER BANK AG NEW YORK AND GRAND
CAYMAN BRANCHES, as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 12
FIRST UNION NATIONAL BANK, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 13
▇▇▇▇▇▇ FINANCIAL, INC., as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 14
MEESPIERSON CAPITAL CORP., as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 15
▇▇▇▇▇▇ BANK PLC, as a Lender
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 16
PNC BANK NATIONAL ASSOCIATION, as a
Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 17
ROYAL BANK OF CANADA, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 18
SOCIETE GENERALE, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 19
AG CAPITAL FUNDING PARTNERS, L.P., as a
Lender
By: ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Co., L.P. as
Investment Adviser
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 20
BANKBOSTON, N.A., as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 21
BDC FINANCE, LLC, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 22
CYPRESSTREE INVESTMENT FUND, LLC, as a
Lender
By: CypressTree Investment Management
Company, Inc., its Managing Member
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 23
DEBT STRATEGIES FUND II, INC., as a
Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 24
DEBT STRATEGIES FUND III, INC., as a
Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 25
FLOATING RATE PORTFOLIO, as a Lender
By: INVESCO Senior Secured Management,
Inc. as attorney in fact
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 26
FRANKLIN FLOATING RATE TRUST, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 27
KZH CYPRESSTREE-1 LLC, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 28
[SIGNATURE PAGE INTENTIONALLY LEFT BLANK]
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 29
[SIGNATURE PAGE INTENTIONALLY LEFT BLANK]
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 30
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
INC., as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 31
METROPOLITAN LIFE INSURANCE COMPANY, as
a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 32
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ PRIME INCOME
TRUST, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 33
[SIGNATURE PAGE INTENTIONALLY LEFT BLANK]
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 34
NORTH AMERICAN SENIOR FLOATING RATE FUND,
as a Lender
By: CypressTree Investment Management
Company, Inc. as Portfolio Manager
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 35
PARIBAS CAPITAL FUNDING LLC, as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 36
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research, as
Investment Advisor
By:
--------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST, as a
Lender
By: ▇▇▇▇▇ ▇▇▇▇▇ Management, as Investment
Advisor
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 37
▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇, INCORPORATED, as
Agent for KEYPORT LIFE INSURANCE COMPANY,
as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 38
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND
II, INC., as a Lender
By:
--------------------------------------
Name:
Title:
TRITEL HOLDING CORP.
AMENDED AND RESTATED LOAN AGREEMENT
Signature Page 39