OMNIPOINT COMMUNICATIONS INC.
$155,000,000
Floating Rate Senior Notes due February 17, 2006
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NOTE PURCHASE AGREEMENT
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Dated February 17, 1998
Portions of this Exhibit were omitted and have been filed separately with
the Secretary of the Commission pursuant to the Company's Application Requesting
Confidential Treatment under Rule 24b-2 of the Securities Exchange Act of 1934,
as amended, on March 26, 1998.
TABLE OF CONTENTS
Section Page
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1. AUTHORIZATION OF NOTES......................................................1
2. SALE AND PURCHASE OF NOTES..................................................1
3. CLOSING.....................................................................2
4. CONDITIONS TO CLOSING..................................................... 3
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................. 9
Section 5.1 Corporate Authority................................... 9
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Section 5.2 Governmental Approvals................................ 10
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Section 5.3 Title to Properties................................... 10
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Section 5.4 Financial Statements.................................. 11
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Section 5.5 No Material Adverse Effect, Etc....................... 12
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Section 5.6 Franchises, Patents, Copyrights, Etc.................. 12
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Section 5.7 License, Etc.......................................... 12
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Section 5.8 Litigation............................................ 13
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Section 5.9 Compliance with Other Instruments, Laws, Etc.......... 13
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Section 5.10 Tax Status............................................ 13
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Section 5.11 No Default............................................ 14
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Section 5.12 Holding Company and Investment Company Acts........... 14
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Section 5.13 Absence of Financing Statements, Etc.................. 14
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Section 5.14 FCC Matters........................................... 14
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Section 5.15 Tariffs............................................... 14
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Section 5.16 Disclosure............................................ 15
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Section 5.17 Burdensome Obligations................................ 15
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Section 5.18 Solvency.............................................. 15
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Section 5.19 Security Interests.................................... 15
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Section 5.20 Certain Transactions.................................. 15
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Section 5.21 Employee Benefit Plans................................ 16
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Section 5.22 Regulations G, T, U and X............................. 17
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Section 5.23 Environmental Compliance.............................. 17
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Section 5.24 Material Contracts.................................... 19
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Section 5.25 Payment of Existing Debt.............................. 19
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Section 5.27 Foreign Assets Control Regulations, etc............... 20
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6. REPRESENTATIONS OF THE PURCHASER.......................................... 20
Section 6.1 Purchase for Investment............................... 20
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Section 6.2 Source of Funds....................................... 20
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7. INFORMATION AS TO COMPANY................................................. 22
Section 7.1 Financial and Business Information.................... 22
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Section 7.2 Inspection of Properties and Books.................... 29
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8. PREPAYMENT OF THE NOTES................................................... 30
Section 8.1 Required Prepayments.................................. 30
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Section 8.2 Optional Prepayments.................................. 30
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Section 8.3 Allocation of Partial Prepayments..................... 31
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Section 8.4 Maturity; Surrender, etc.............................. 31
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Section 8.5 Purchase of Notes..................................... 32
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Section 8.6 Certain Matters Relating to Repayments and Prepayments 32
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9. AFFIRMATIVE COVENANTS..................................................... 33
Section 9.1 Maintenance of Office................................. 33
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Section 9.2 Records and Accounts.................................. 33
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Section 9.3 Corporate Existence; Maintenance of Licenses.......... 33
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Section 9.4 Maintenance of Properties............................. 34
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Section 9.5 Insurance............................................. 35
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Section 9.6 Taxes................................................. 36
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Section 9.7 Compliance with Laws, Contracts, License, and Permits. 36
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Section 9.8 Further Assurances.................................... 37
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Section 9.9 Authorization from Landlord/Mortgagee, Etc............ 37
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Section 9.10 Attornment and Recognition Agreements................. 37
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Section 9.11 Allocation Agreement.................................. 37
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Section 9.12 Certified Copies of Insurance Policies................ 38
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Section 9.13 Access Agreements..................................... 38
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Section 9.14 Creation of License Subsidiary........................ 38
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Section 9.15 Proceeds of Note Issuance............................. 38
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Section 9.16 Book-Entry Form....................................... 39
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Section 9.17 Notices to Clearing Agency............................ 40
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10. NEGATIVE COVENANTS.........................................................40
Section 10.1 Restrictions on Indebtedness...........................40
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Section 10.2 Liens..................................................42
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Section 10.3 Contingent Obligations.................................45
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Section 10.4 Restrictions on Investments............................45
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Section 10.5 Distributions..........................................48
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Section 10.6 Merger, Consolidation, Disposition of Assets, Etc......48
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Section 10.7 Sale and Leaseback.....................................49
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Section 10.8 Compliance with Environmental Laws.....................49
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Section 10.9 Employee Benefit Plans.................................50
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Section 10.10 Transactions with Affiliates...........................51
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Section 10.11 Change in Nature of Business...........................52
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Section 10.12 Charter Amendments.....................................52
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Section 10.13 Accounting Changes.....................................52
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Section 10.14 Prepayments, Etc., of Indebtedness.....................53
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Section 10.15 Amendment, Etc., of Material Contracts.................53
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Section 10.16 Asset Swaps............................................53
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Section 10.17 Certain Restrictions...................................54
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Section 10.18 No Additional Subsidiaries.............................54
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Section 10.19 Financial Covenants....................................54
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11. EVENTS OF DEFAULT..........................................................59
Section 11.1 Events of Default and Acceleration.....................59
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12. REMEDIES ON DEFAULT, ETC...................................................63
Section 12.1 Acceleration...........................................63
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Section 12.2 Other Remedies.........................................64
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Section 12.3 Rescission.............................................64
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Section 12.4 No Waivers or Election of Remedies, Expenses, etc......65
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13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES..............................65
Section 13.1 Registration of Notes..................................65
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Section 13.2 Transfer and Exchange of Notes.........................66
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Section 13.3 Replacement of Notes...................................66
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Section 13.4 Exchange of Notes for Loans............................67
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14. PAYMENTS ON NOTES..........................................................67
Section 14.1 Place of Payment.......................................67
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Section 14.2 Home Office Payment....................................68
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15. EXPENSES, ETC..............................................................68
Section 15.1 Transaction Expenses...................................68
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Section 15.2 Survival...............................................69
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16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT...............69
17. AMENDMENT AND WAIVER.......................................................69
Section 17.2 Solicitation of Holders of Notes.......................70
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Section 17.3 Binding Effect, etc....................................71
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Section 17.4 Notes held by Company, etc.............................71
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18. NOTICES....................................................................71
19. REPRODUCTION OF DOCUMENTS..................................................72
20. CONFIDENTIAL INFORMATION...................................................72
21. SUBSTITUTION OF PURCHASER..................................................74
22. MISCELLANEOUS..............................................................74
Severability.................................................................75
Construction.................................................................75
Section 1.3 Accounting Terms.......................................45
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S-iv
FLOATING RATE SENIOR NOTES DUE FEBRUARY 17, 2006
This Note Purchase Agreement is made as of the 17th day of February, 1998
(this "Agreement"), by and among (a) OMNIPOINT COMMUNICATIONS INC. (the
"Company"), a Delaware corporation, (b) OMNIPOINT CORPORATION, a Delaware
corporation (the "Grand Parent"), for the purposes set forth herein, (c) IBJ
▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY and (d) the Purchasers set forth in Schedule A
hereto (the "Purchasers"). Certain capitalized terms used in this Agree ment
are defined in Schedule B; references to a "Section", "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Section of this Agreement or to a Schedule
or an Exhibit attached to this Agreement.
1. AUTHORIZATION OF NOTES.
The Company has authorized the issue and sale of $155,000,000
aggregate principal amount of its Floating Rate Senior Notes due February 17,
2006 (the "NOTES", such term to include any such notes issued in substitution
therefor pursuant to Article 13 of this Agreement or in the form of Book-Entry
Notes pursuant to Section 9.16). The Notes shall be represented by the Book-
Entry Note substantially in the form set out in Exhibit 1, with such changes
therefrom, if any, as may be approved by the Purchasers and the Company.
2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company
will issue and sell to each Purchaser and each Purchaser will purchase from the
Company, at the Closing provided for in Section 3, Notes in the principal amount
specified opposite such Purchaser's name in Schedule A at the purchase price of
100% of the principal amount thereof. Contemporaneously with entering into this
Agreement, the Company is entering into a separate Loan Agreement (the "Loan
Agreement") among the Company, as Borrower, Omnipoint Corporation, as Grand
Parent, the Lenders party thereto (the "Lenders"), DLJ Capital Funding, Inc., as
Syndication Agent, ▇▇▇▇▇▇▇, ▇▇▇▇▇ Credit Partners L.P., as Documentation Agent,
Bank of America National Trust & Savings Association, as Administrative Agent,
and NationsBank, as Co-Agent, pursuant to which the Lenders will make
loans at such Closing and thereafter to the Company in the aggregate principal
amount of $[595,000,000] (the "Loans"). The Purchasers' obligation hereunder and
the obliga tions of the Lenders under the Loan Agreement are several and not
joint obligations and no Purchaser shall have any obligation under the Loan
Agreement and no liability to any Person for the performance or non-performance
by any Lender thereunder. Each Purchaser's obligation hereunder is a several and
not a joint obligation, and no Purchaser shall have any obligation or liability
to any Person for the performance or non-performance by any other Purchaser
hereunder.
3. CLOSING.
The sale and purchase of the Notes to be purchased by the Purchasers
shall occur at the offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel
to the Syndication Agent, at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇, at a closing (the "Closing") on such Business Day as may be agreed upon
by the Company and the Purchasers (such date, the "Closing Date"). At the
Closing, (i) the Company will deliver the Book-Entry Note and a Company's Order
to the Paying Agent, as custodian for DTC and registered in the name of Cede &
Co., as nominee for DTC, and the Paying Agent will cause delivery of the Notes
represented by the Book-Entry Note by book-entry transfer in DTC for credit to
the account of each Purchaser indicated on Schedule A hereof and (ii) each
Purchaser shall pay, or cause the payment through the DTC of, immediately
available funds in the amount of the purchase price therefor by wire transfer of
immediately available funds for the account of the Paying Agent for further
credit to the account of the Company. If at the Closing the Company shall fail
to tender such Notes to the Purchasers as pro vided above in this Section 3, or
any of the conditions specified in Section 4 shall not have been fulfilled to
the Purchasers' satisfaction, each Purchaser shall, at its elec tion, be
relieved of all further obligations under this Agreement, without thereby
waiving any rights it may have by reason of such failure or such nonfulfillment.
4. CONDITIONS TO CLOSING.
Each Purchaser's obligation to purchase and pay for the Notes to be
sold to it at the Closing is subject to the fulfillment to its satisfaction,
prior to or at the Closing, of the following conditions:
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(a) Representations and Warranties. Each of the representations
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and warranties of the Company and the other Omnipoint Entities contained in
this Agreement, the other Note Documents or in any document or instrument
delivered pursuant to or in connection with this Agreement shall be true as
of the Closing Date.
(b) No Default. No Default shall have occurred and be continuing
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as of the Closing Date.
(c) No Material Adverse Effect. No Material Adverse Effect shall
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have occurred as of the Closing Date (other than continuing losses of the
Company materially in compliance with the projections provided pursuant to
the Full-Term Operating Business Plan).
(d) No Change in Law. No change shall have occurred in any law
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or regulation or interpretations thereof that in the reasonable opinion of
any Purchaser would make it illegal for such Purchaser to purchase its
Notes and no order of any court or Governmental Body shall have been
entered prohibiting the consummation of the transactions contemplated by
the Note Documents.
(e) Note Documents. Each Purchaser shall, to the extent
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requested prior to the Closing, have received a Definitive Note or a Book
Entry Note, duly executed and delivered by the Company, as well as each of
the other Note Documents, which shall have been duly executed and deliv
ered by the respective parties thereto, shall be in full force and effect
and shall be in form and substance satisfactory to each of the Purchasers
and their counsel.
(f) Proceedings and Documents. All corporate and other
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proceedings in connection with the transactions contemplated hereby and by
the other Note Documents shall be satisfactory to each of the Purchasers
and their counsel, and each Purchaser shall have received such secretary's
certifi ▇▇▇▇▇ (including a certificate that the conditions under clauses
(a) and (b) of this Article 4 have been satisfied) , certificates of the
Secretary of State of the state of organization or incorporation of each
Omnipoint Note Party and other copies of documents with respect thereto as
it may reasonably request; provided, however, that any Purchaser may notify
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the Company and the Grand Parent that such Purchaser elects not to receive
any or
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all material non-public documentation of the Omnipoint Entities (not
including the Confiden tial Memorandum referred to in Section 5.16)
without affecting the Com pany's compliance with this clause (f).
(g) Validity of Liens. The Collateral Documents shall be
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effective to create in favor of the Collateral Agent a legal, valid and
enforceable first-priority security interest (except for Permitted Liens
that have priority under applicable law) in and Lien upon the Collateral.
All filings, recordings, deliveries of instruments and other actions
necessary or desirable in the opinion of the Purchasers to protect, perfect
and preserve such security interests shall have been duly effected and all
such documents shall have been duly executed by the Company, Parent,
License Subsidiary, OHI and OIT, as applicable. The Purchasers shall have
received evidence thereof in form and substance satisfactory the
Purchasers.
(h) Search Reports and Related Documents. The Purchasers shall
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have received
(i) such UCC, tax, patent, trademark and judgment lien search
reports with respect to such applicable public offices where Liens are
filed, as shall be acceptable to the Purchasers, disclosing that there are
no Liens (other than Permitted Liens) of record in such official's office
covering any Collateral or showing the Company, Parent, License Subsidiary,
OHI or OIT as a debtor there under;
(ii) a certificate of the Company, Parent, License Subsidiary,
OHI and OIT, signed by an authorized officer of each thereof, dated the
Closing Date, certifying that, as of the Closing Date, there will exist no
Liens on the Collateral other than Permitted Liens; and
(iii) acknowledgment copies or duly executed file-stamped copies
of UCC-1 and UCC-3 financing statements with respect to the Collateral
filed in each office where such filing is necessary or appropriate to
perfect a Lien on the Collateral.
(i) Certificates of Insurance. The Collateral Agent shall have
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received a certificate of insurance from an independent insurance
4
broker naming the Collateral Agent as an additional insured and a loss
payee, dated as of the Closing Date, identifying insurers, types of
insurance, insurance limits, and policy terms, and otherwise describing the
insurance obtained in accordance with the provisions of the Borrower
Security Agreement, the Loan Agreement, this Agreement and the other Note
Agreements.
(j) Solvency Certificate. The Purchasers shall have received an
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officer's certificate of the Company and Grand Parent dated as of the
Closing Date as to the Company and each other Omnipoint Note Party being
Solvent following the consummation of the transactions contemplated herein
and in form and substance satisfactory to the Purchasers.
(k) Opinion of Counsel to Omnipoint Note Parties. Each of the
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Purchasers shall have received a favorable legal opinion of counsel to the
Omnipoint Note Parties addressed to the Purchasers, dated as of the Closing
Date, in form and substance satisfactory to the Purchasers.
(l) Opinion of FCC Counsel. Each of the Purchasers shall have
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received a favorable legal opinion addressed to the Purchasers from FCC
counsel to the Company and Parent, dated as of the Closing Date, in form
and substance satisfactory to the Purchasers.
(m) Payment of Fees. The Company shall have paid all fees and
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expenses payable on the Closing Date by the Company or any other Omnipoint
Note Party, including, without limitation, all fees payable on the Closing
Date pursuant to Section 15.1.
(n) Approvals, Permits. The Company shall have obtained all
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Federal, state and local governmental and regulatory consents, approvals,
Licenses and permits, including any third-party consents, as required or
necessary for the Company to issue Notes hereunder and continue with the
construction and development of the New York PCS Network as contem plated
for the current stage of construction and development on the Closing Date
and operate its business pursuant to the Full Term Operating Business Plan,
and all such consents, approvals, Licenses and permits shall remain in
effect; all applicable waiting periods shall have expired without any
action being taken by any competent authority; no law or regulation shall
be applica ble in the judgment of the Purchasers that
5
restrains, prevents or imposes materially adverse conditions upon the Notes
or the construction and develop ment of the New York PCS Network referred
to above or the operation of the Company's business pursuant to the Full
Term Operating Business Plan and the Purchasers shall receive a certificate
of an authorized officer of the Company to that effect dated the Closing
Date.
(o) Delivery of Operating Business Plans. The Company shall have
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delivered to the Purchasers (except that any Purchaser may decline receipt
by notice to the Company, in which case the Company shall not deliver the
following to such Purchaser):
(i) an Annual Operating Business Plan for its 1998 fiscal
year and
(ii) a Full-Term Operating Business Plan,
each of which shall be in form and substance satisfactory to the Purchasers,
together with a certificate of its chief or principal accounting or financial
officer dated the Closing Date certifying as to the reasonableness of the
assumptions and expectations contained therein and that there are presently no
facts known to such Person that would make either such plan misleading in any
material respect.
(p) Material Agreements. Subject to confidentiality restrictions
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in Section 20, the Purchasers shall have received (except that any
Purchaser may decline receipt by notice to the Company, in which case the
Company shall not deliver the following to such Purchaser) a complete and
correct copy, certified by an authorized officer of the Company, of (a) the
Expense Allocation Agreement and the Cash Management Agreement, in each
case as then in effect, and (b) each other contract set forth on Schedule
5.24 of the Loan Agreement, as such other contract is then in effect and as
to which any Purchaser shall have requested a copy on or before the Closing
Date.
(q) Litigation. There shall exist no action, suit, investiga
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tion, litigation or proceeding pending or threatened in any court or before
any arbitrator or governmental instrumentality that could in the reasonable
opinion of the Purchasers have a Material Adverse Effect.
6
(r) Existing Bank Debt. The Purchasers shall have received
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evidence satisfactory to them (i) that the proceeds of the Notes, together
with the proceeds of the Loans, shall repay in full all of the Existing
Bank Debt (including, without limitation, all fees payable pursuant to
Section 2.3 of the Existing Loan Agreement) and that all lenders of the
Existing Bank Debt shall have released (or shall, effective immediately
upon receipt of such proceeds, release) the Company from any and all
obligations under the Existing Bank Debt, (ii) that all commitments of the
lenders of such Existing Bank Debt to make loans or advances to the Company
shall be terminated on or prior to the Closing Date and (iii) that all
Liens securing obligations of the Company under the Existing Bank Debt
shall be released and terminated on or prior to the Closing Date (or shall,
effective immediately upon receipt of the proceeds of the initial Loan in
an amount sufficient to repay all amounts owing in respect of the Existing
Bank Debt, release and terminate all such Liens).
(s) Creation of OHI Subsidiary. The Company shall have caused
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the establishment of a new Subsidiary of OHI (the "OHI Subsidiary") and
shall have taken all steps necessary to enable OHI to pledge its Capital
Stock in the OHI Subsidiary in favor of the Collateral Agent for the
benefit of the Secured Creditors under the Intercreditor Agreement pursuant
to the OHI Pledge Agreement.
(t) Title Insurance. The Purchasers shall have received a paid
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policy of mortgage title insurance with respect to each parcel of Real
Estate to be subject to a Mortgage, in amount satisfactory to the
Purchasers and issued by a title insurance company satisfactory to the
Purchasers.
(u) Financial Statements. The Purchasers shall have received the
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audited financial statements of Grand Parent and its Subsidiaries and the
Company and its Subsidiaries for the fiscal year ending December 31, 1996
and the unaudited financial statements of Grand Parent and its Subsid
iaries and the Company and its Subsidiaries for the fiscal quarter ending
September 30, 1997.
(v) Environmental Matters. The Purchasers shall (i) be satisfied
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that no Omnipoint Note Party is subject to any Environmental Claim which
could have a Material Adverse Effect and (ii) have received an envi
ronmental audit report in form and substance satisfactory to the Purchasers
7
prepared by an independent environmental consultant acceptable to the
Purchasers with respect to the Real Estate of the Company and its
Subsidiaries.
(w) Access Agreements. The Purchasers shall have received
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executed copies of the Access Agreements, which shall be in full force and
effect and the terms of which shall not have been waived, amended or
otherwise modified without the prior consent of the Purchasers.
(x) Subordination Agreements. The Purchasers shall have received
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executed Subordination Agreements subordinating to all Obligations all
Intercompany Indebtedness owed by the Company or any Guarantor, which
documentation shall be consistent with the terms and conditions of this
Agreement. The Holders shall have received documentation satisfactory to
it and the Required Secured Creditors that the Intercompany Indebtedness is
evidenced by notes and is "back to back" or otherwise documented to provide
the intended benefits to the Holders of such subordination.
(y) Consent Agent. The Purchasers shall have received a consent
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letter from the C. T. Corporation System, presently located at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (together with any successor thereto,
the "Consent Agent"), indicating its consent to its appointment as agent to
receive service of process on behalf of each of the Omnipoint Note Parties.
(z) CUSIP Number. A CUSIP number issued by Standard & Poor's
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CUSIP Service Bureau (in cooperation with the Securities Valuation Office
of the National Association of Insurance Commissioners) shall have been
obtained for the Notes.
(aa) Other Documents. Each Purchaser shall receive all other
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documents, instruments and opinions from the Company and Grand Parent
(including opinions of counsel for the Company and Grand Parent) as each
Purchaser may reasonably request, in form and substance satisfactory to
each Purchaser and their counsel, and which shall be in full force and
effect on the Closing Date.
8
(ab) Purchase Permitted By Applicable Law, etc. On the Closing
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Date the purchase of Notes shall (i) be permitted by the laws and
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regulations of each jurisdiction to which each Purchaser is subject,
without recourse to provisions (such as Section 1405(a)(8) of the New York
Insurance Law) permitting limited investments by insurance companies
without restric tion as to the character of the particular investment,
(ii) not violate any applicable law or regulation (including, without
--
limitation, Regulation G, T or X of the Board of Governors of the Federal
Reserve System) and (iii) not subject any Purchaser to any tax, penalty or
---
liability under or pursuant to any applicable law or regulation, which law
or regulation was not in effect on the date hereof. If requested by such
Purchaser, such Purchaser shall have received an Officer's Certificate
certifying as to such matters of fact as such Purchaser may reasonably
specify to enable it to determine whether such purchase is so permitted.
(ac) Loan Agreement. The Lenders under the Loan Agreement shall
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have made the Tranche A Loans and the Tranche B Loans, or contemporaneously
with the purchase of the Senior Secured Notes shall make such Loans.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Each of Grand Parent and the Company represents and warrants to the
Purchasers as follows:
Section 5.1 Corporate Authority.
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(a) (i) Each Omnipoint Entity is identified on the
organizational chart attached as Schedule 5.1 to the Loan Agreement; is a
corporation (or other entity as indicated thereon) duly organized, validly
existing and in good standing under the laws of its state of incorporation
or organization; and its share or other ownership is as indicated thereon,
(ii) Each Omnipoint Note Party has all requisite corporate power
to own its Property and conduct its business as now conducted and as
presently contemplated, and
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(iii)Each Omnipoint Note Party is in good standing as a foreign
corporation and is duly authorized to do business in each jurisdiction
where such qualification is necessary in order to conduct its business as
now conducted except where a failure to be so qualified would not have a
Material Adverse Effect.
(b) The execution, delivery and performance of this Agreement and
the other Note Documents to which any Omnipoint Note Party is or is to
become a party and the transactions contemplated hereby and thereby
(i) are within the corporate or other author ity of such
Omnipoint Note Party,
(ii) have been duly authorized by all neces sary corporate or
other proceedings,
(iii)do not conflict with or result in any breach or
contravention of any provision of material law, statute, rule or regulation
to which such Omnipoint Note Party is subject or any judgment, order, writ,
injunction, license (including without limita tion, any License) or permit
applicable to such Omnipoint Note Party or their Property, and
(iv) do not conflict with any provision of the corporate charter
or bylaws of, or any agreement or other instrument binding upon, such
Omnipoint Note Party or its Property.
(c) The execution and delivery of this Agreement and the other
Note Documents to which any Omnipoint Note Party is or is to become a party
will result in valid and legally binding obligations of such Omnipoint Note
Party enforceable against such Omnipoint Note Party in accordance with the
respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
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Section 5.2 Governmental Approvals. The execution, delivery and
----------------------
performance by each Omnipoint Note Party of this Agreement and the other Note
Documents to which such Omnipoint Note Party is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any Governmental Body other than those already
obtained and for any subsequent informational filing with the Securities and
Exchange Commission.
Section 5.3 Title to Properties. Each Omnipoint Note Party owns
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through one or more direct and indirect Subsidiaries all of the assets reflected
in the consolidated balance sheet of Grand Parent as at December 31, 1996 or
acquired since that date (except property and assets sold or otherwise disposed
of in the ordinary course of business since that date), subject to no rights of
others, including any mortgages, leases, conditional sales-agreements, title-
retention agreements, Liens or other encumbrances, except Permitted Liens.
Section 5.4 Financial Statements.
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(a) The Purchasers have been provided the audited consol idated
balance sheet of Grand Parent and its Subsidiaries and the Company and its
Subsidiaries, as at December 31, 1996, and the audited consolidated
statement of income and cash flow statement of Grand Parent and its Subsid
iaries and the Company and its Subsidiaries for the fiscal year then ended,
and such balance sheet and statement of income and cash flow have been
certified by Grand Parent's and the Company's respective independent certi
fied public accountants and accompanied by an unqualified opinion of such
accountants. Such balance sheet and statement of income and cash flow have
been prepared in accordance with GAAP and fairly present the financial
condition of Grand Parent and its Subsidiaries and the Company and its
Subsidiaries, respectively, as at the close of business as of such date and
the results of operations for the fiscal year then ended. There are no
Contingent Obligations of Grand Parent or its Subsidiaries or the Company
or its Subsid iaries as of such date involving material amounts, known to
the officers of Grand Parent or the Company, respectively, that were not
disclosed in such balance sheet and the notes related thereto.
(b) The Purchasers have been provided the unaudited consolidated
balance sheet of Grand Parent and its Subsidiaries and the
11
Company and its Subsidiaries as of September 30, 1997, and the unaudited
consolidated statement of income and cash flow statement of Grand Parent
and its Subsidiaries and the Company and its Subsidiaries for the nine
months then ended. Such balance sheet and statement of income and cash flow
have been prepared in accordance with GAAP and fairly present the financial
condition of Grand Parent and its Subsidiaries and the Company and its
Subsidiaries, respectively, as at the close of business on the date thereof
and the results of operations for the nine months then ended, subject to
year-end adjustments. There are no Contingent Obligations of Grand Parent
or its Subsidiaries or the Company or its Subsidiaries as of such date
involving material amounts known to the officers of Grand Parent or the
Company, respectively, that were not disclosed in such balance sheet and
the notes related thereto.
Section 5.5 No Material Adverse Effect, Etc. Since December 31,
-------------------------------
1996, there has occurred no Material Adverse Effect (other than continuing
losses of the Company (x) as disclosed in the Company's unaudited consolidated
balance sheet and statement of cash flow delivered to the Administrative Agent
pursuant to Section 5.4(b) and (y) materially in compliance with such losses as
projected to continue in the Full-Term Operating Business Plan).
Section 5.6 Franchises, Patents, Copyrights, Etc. Except for the
------------------------------------
FCC Licenses for the New York PCS Network and the other Intellectual Property
set forth on Schedule 5.6 to the Loan Agreement, there are no franchises,
patents, copyrights, trademarks, trade names, or other Intellectual Property,
individually or in the aggregate, that are material for the conduct of the
Company's business as now conducted or as presently contemplated to be
conducted.
Section 5.7 License, Etc. The Company (or the License Subsid iary)
------------
has secured
(a) with respect to the construction, installation and
development of facilities for the New York PCS Network, the FCC Licenses
for the New York PCS Network and all material Necessary Authorizations
appropriate to the level of development theretofore achieved and sufficient
to avoid noncompliance with the minimum build-out requirements under the
FCC Licenses for the New York PCS Network, and
12
(b) with respect to the operation of those portions of the New
York PCS Network the development of which has theretofore been completed,
the License and all material Necessary Authorizations sufficient to operate
such completed portions.
Neither the FCC Licenses for the New York PCS Network nor any such material
Necessary Authorization is the subject of any pending or, to the best of any
Omnipoint Entity's knowledge, threatened appeal, revocation, revocation
proceeding or any other similar action or proceeding. The Company (or the
License Subsidiary, as the case may be) is in compliance with the FCC Licenses
for the New York PCS Network and all material Necessary Authorizations. The
Company (or the License Subsidiary, as the case may be) reasonably expects to
obtain, in the ordinary course of business, without the imposition of burdensome
conditions all Necessary Authorizations not currently obtained, that will be
required under the License in the future or that will be required to operate the
Company's or the License Subsidiary's business substantially in accordance with
the Full-Term Operating Business Plan.
Section 5.8 Litigation. There are no actions, suits, proceedings
----------
or investigations of any kind pending or, to the best of any Omnipoint Entity's
knowledge, threatened, against any Omnipoint Note Party before any court,
tribunal or administrative agency or board (including the FCC) that, if
adversely determined, might, either in any case or in the aggregate, have a
Material Adverse Effect or materially impair the right of any Omnipoint Note
Party to carry on business substan tially as now conducted, or result in any
substantial and material liability not ade quately covered by insurance, or for
which adequate reserves are not maintained on the balance sheet of such
Omnipoint Note Party, or that questions the validity of this Agreement or any of
the other Note Documents, or any action taken or to be taken pursuant hereto or
thereto.
Section 5.9 Compliance with Other Instruments, Laws, Etc. No
--------------------------------------------
Omnipoint Note Party is in violation of any provision of its charter documents,
bylaws, or any agreement or instrument to which it may be subject or by which it
or any of its Properties may be bound or any decree, order, judgment, statute,
license (including, without limitation, any License), rule or regulation, in any
of the forego ing cases in a manner that could result in the imposition of
substantial penalties or have a Material Adverse Effect.
13
Section 5.10 Tax Status. Each Omnipoint Entity
----------
(a) has made or filed all Federal and state income and all other
tax returns, reports and declarations required by any jurisdiction to which
it is subject or filed extensions therefor;
(b) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and by appropriate
proceedings and for which such Omnipoint Entity has set aside on its books
adequate reserves; and
(c) has set aside on its books provisions reasonably adequate for
the payment of all taxes for all elapsed periods.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of each Omnipoint Entity know of
no basis for any such claim.
Section 5.11 No Default. No Default has occurred and is continu
----------
ing.
Section 5.12 Holding Company and Investment Company Acts. No
-------------------------------------------
Omnipoint Note Party is a "holding company", or a "subsidiary company" of a
"holding company", or an affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", or an entity "controlled" by an "investment company",
as such terms are defined in the Investment Company Act of 1940.
Section 5.13 Absence of Financing Statements, Etc. Except with
------------------------------------
respect to Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, Real Estate mortgage or other document filed or recorded with
any filing records, registry or other public office, that purports to cover,
affect or give notice of any present or possible future Lien on, or security
interest in, any assets or Property of any Omnipoint Note Party or any rights
relating thereto.
Section 5.14 FCC Matters. Each Omnipoint Note Party has duly and
-----------
timely filed all filings which are required to be filed by it under the
Communications Act, the failure to file which could reasonably be expected to
have a
14
Material Adverse Effect and is in all material respects in compliance with the
Communica tions Act, including the rules and regulations of the FCC applicable
to it, the failure to be in compliance with which could reasonably be expected
to have a Material Adverse Effect.
Section 5.15 Tariffs. No action to change, alter, rescind or other
-------
wise terminate the tariffs containing service regulations or any rates and
charges for commercial mobile radio services which, if adversely determined,
would have a Material Adverse Effect, is pending or known by any Omnipoint Note
Party to be under consideration.
Section 5.16 Disclosure. This Agreement, the Confidential Memo
----------
randum regarding the Notes, dated as of January, 1998, and the statements and
documents referred to herein or therein or delivered to the Purchasers by or on
behalf of any Omnipoint Entity pursuant hereto taken together, contain no untrue
statement of a material fact or fail to state a material fact which would be
necessary to make the statements (taken as a whole) herein and therein not
misleading at such time.
Section 5.17 Burdensome Obligations. No Omnipoint Note Party is a
----------------------
party to or bound by any franchise, agreement, deed, lease or other instrument,
or subject to any legal restriction which, in the opinion of the management of
Grand Parent or the Company, is so unusual or burdensome, in the context of its
business, as in the foreseeable future might materially and adversely affect or
impair the revenue or operating cash flow of such Omnipoint Note Party, or the
ability of such Omnipoint Note Party to perform obligations under the Note
Documents. No Omnipoint Note Party presently anticipates that future
expenditures by such Omnipoint Note Party needed to meet the provisions of
Federal or state statutes, orders, rules or regulations will be so burdensome as
to affect or impair, in a materially adverse manner, the business or condition,
financial or otherwise, of such Omnipoint Note Party.
Section 5.18 Solvency. Each Omnipoint Note Party is, and after
--------
giving effect to the incurrence of all Indebtedness as and when contemplated by
the Note Documents will be, Solvent.
Section 5.19 Security Interests. The security interests granted
------------------
under the Collateral Documents constitute valid, binding and continuing duly
perfected first-priority Liens in and to the Collateral (except for Permitted
Liens
15
that have priority under applicable law) in favor of the Collateral Agent for
the benefit of the Secured Creditors.
Section 5.20 Certain Transactions. Except as set forth in Schedule
--------------------
5.20 to the Loan Agreement, none of the officers, directors, or employees of any
Omnipoint Note Party is presently a party to any transaction with any other
Omnipoint Note Party (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of such Omnipoint Note Party, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner. The Company has delivered a complete and correct copy of
the Expense Allocation Agreement to each Purchaser. No Omnipoint Note Party is a
party to any management, operating, license or other agreement providing for the
payment of any amount to any of its Affiliates, except for the Expense
Allocation Agreement or as permitted under Section 10.10.
Section 5.21 Employee Benefit Plans.
----------------------
(a) Each Employee Benefit Plan and each Plan has been maintained
and operated in compliance in all material respects with the provisions of
ERISA and, to the extent applicable, the IRC, including the provisions
thereunder respecting prohibited transactions. Grand Parent, Company and
each ERISA Affiliate has made all required contributions to each Employee
Benefit Plan and each Multiemployer Plan. To the extent applicable, Grand
Parent, Company and each ERISA Affiliate has heretofore delivered to the
Purchasers the most recently completed annual report, Form 5500, with all
required attachments, and actuarial statements required to be submitted
under (S) 103(d) of ERISA, with respect to each Guaranteed Pension Plan.
(b) Under each Employee Benefit Plan that is an employee welfare
benefit plan within the meaning of (S) 3(1) or (S) 3(2) (b) of ERISA, no
benefits are due unless the event giving rise to the benefit entitlement
occurs prior to plan termination (except as required by Title I, Subtitle
B, Part 6 of ERISA). Grand Parent or an ERISA Affiliate, as appropriate,
may terminate each such Plan at any time (or at any time
16
subsequent to the expiration of any applicable bargaining agreement) in the
discretion of any of Grand Parent or such ERISA Affiliate without liability
to any Person.
(c) Each contribution required to be made to a Guaranteed Pension
Plan, whether required to be made to avoid the incurrence of an accumulated
funding deficiency, the notice or lien provisions of (S) 302 (f) of ERISA,
or otherwise, has been timely made. No waiver of minimum funding standards
or extension of amortization periods has been requested or received with
respect to any Guaranteed Pension Plan. No liability to the PBGC (other
than required insurance premiums, all of which have been paid) has been
incurred by Grand Parent or any ERISA Affiliate with respect to any Guaran
▇▇▇▇ Pension Plan and there has not been any ERISA Event, or any other
event or condition that presents a material risk of termination of any
Guaran ▇▇▇▇ Pension Plan by the PBGC. Neither Grand Parent nor any ERISA
Affiliate has instituted or intends to institute proceedings to terminate a
Guaranteed Pension Plan. No event requiring notice to the PBGC under (S)
302(f)(4)(A) of ERISA has occurred with respect to any Guaranteed Pension
Plan and no amendment with respect to which security is required under (S)
307 of ERISA has been made or is reasonably expected to be made to any
Guaranteed Pension Plan. Based on the latest valuation of each Guaran
▇▇▇▇ Pension Plan (which in each case occurred within 12 months prior to
the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of (S) 4001 of
ERISA did not exceed the aggregate value of the assets of all such
Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in excess
of benefit liabilities.
(d) Neither Grand Parent, the Company nor any ERISA Affiliate has
incurred or expects to incur any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under (S) 4201 of ERISA or as a
result of a sale of assets described in (S) 4204 of ERISA. Neither Grand
Parent, the Company nor any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or insolvent under and within the
meaning of (S) 4241 or (S) 4245 of ERISA or that any Multiemployer Plan
intends to terminate or has been terminated under (S) 4041A of ERISA.
17
Section 5.22 Regulations G, T, U and X. No portion of the proceeds
-------------------------
of any Note shall be used or obtained for the purpose of purchasing or carrying
any "margin security" or "margin stock" as such terms are used in Regulations G,
T, U and X of the Board of Governors of the Federal Reserve System, 12 C.F.R.
Parts 221 and 224.
Section 5.23 Environmental Compliance. Each Omnipoint Entity has
------------------------
taken all steps as are reasonable for companies in similar lines of business and
size with respect to similarly situated and like Real Estate to investigate the
past and present condition and usage of its and its Subsidiaries' Real Estate
and the operations conducted thereon and, based upon such diligent
investigation, makes the following representations:
(a) Except as set forth in the Current Phase I Audit and the
Action Letter, each Omnipoint Entity is, to the best of its knowledge, in
compliance with all applicable Environmental Laws relating to the operation
of its business and the use and occupancy of any Real Estate. There is no
pending or, to the best of its knowledge, threatened civil or criminal
litiga tion, written notice of violation, administrative proceeding, or
investigation, inquiry or information request by any person, entity or
governmental author ity relating to any applicable Environmental Law
(collectively "Environmen tal Claims") involving such Omnipoint Entity or
---------------------
any person or entity for whom an Omnipoint Entity may be responsible by law
or contract.
(b) Except as set forth in Schedule 5.23 to the Loan Agreement,
there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the
release, emission, discharge, presence or disposal of any Material of
Environmental Concern, that could form the basis of any Environmental Claim
against the Company or, to the Company's best knowledge after due inquiry,
against any person or entity whose liability for any Environmental Claim
the Company has retained or assumed either contractually or by operation of
law.
(c) Set forth in Schedule 5.23 to the Loan Agreement is a list of
all environmental reports, investigations and audits relating to premises
currently or previously owned or operated by any Omnipoint Loan
18
Party (whether conducted by or on behalf of any Omnipoint Loan Party or a
third party, and whether done at the initiative of any Omnipoint Loan Party
or directed by a governmental entity or other third party) which such
Omnipoint Loan Party has in its possession or to which it has access, and
complete and accurate copies of each such report, or the results of each
such investigation or audit, have been provided to the Purchasers.
(d) Each Omnipoint Entity has filed all reports and returns re quired
to be filed by such Omnipoint Entity under any applicable Environ mental
Laws. Each Omnipoint Entity has obtained and is in compliance with all
licenses, permits, registrations, certificates, consents, approvals or
authori zations (collectively, "Environmental Permits") required by all
---------------------
applicable Environmental Laws. No event has occurred and is continuing
that requires, or after notice or lapse of time or both would require, any
modification or termination of any Environmental Permit. No Omnipoint
Entity (i) has received any notice asserting the absence of any
Environmental Permit or (ii) has knowledge of any environmental law
proposed or under consideration, which, if effective, could have a Material
Adverse Effect.
(e) Except as set forth in the Current Phase I Audit and the Action
Letter, no Omnipoint Entity nor any of the Real Estate is subject to any
applicable Environmental Laws requiring the performance of site assessments
for Materials of Environmental Concern, or the removal or remediation of
Materials of Environmental Concern, or the giving of notice to any govern
mental agency or the recording or delivery to other Persons of an environ
mental disclosure document or statement by virtue of the transactions set
forth herein and contemplated hereby, or as a condition to the
effectiveness of any transactions contemplated hereby.
Section 5.24 Material Contracts. As of the date of this Agreement,
------------------
no Omnipoint Note Party is a party to any Material Contract or any agreement
with any director, officer or employee of any Omnipoint Note Party, and no
shareholder of any Omnipoint Note Party is a party to any shareholder, share-
voting or similar agreement relating to any Omnipoint Note Party, except as set
forth in Schedule 5.24 to the Loan Agreement.
Section 5.25 Payment of Existing Debt. After giving effect to the
------------------------
use of the proceeds of the Notes issued on the Closing Date, all obligations in
19
respect of the Existing Bank Debt shall have been repaid in full and all
documents and agreements in connection therewith shall have been irrevocably
terminated, other than customary indemnification provisions which by the terms
thereof survive repayment.
Section 5.26 Private Offering by the Company. Neither the Com pany
-------------------------------
nor anyone acting on its behalf has offered the Notes or any similar securities
for sale to, or solicited any offer to buy any of the same from, or otherwise ap
proached or negotiated in respect thereof with, any person other than the
Purchasers and not more than 30 other Institutional Investors, each of which has
been offered the Notes at a private sale for investment. The Company shall not
have offered any other securities which offering could be integrated with the
placement of the Notes hereunder. Neither the Company nor anyone acting on its
behalf has taken, or will take, any action that would subject the issuance or
sale of the Notes to the registra tion requirements of Section 5 of the
Securities Act.
Section 5.27 Foreign Assets Control Regulations, etc. Neither the
----------------------------------------
sale of the Notes by the Company hereunder nor its use of the proceeds thereof
will violate the Trading with the Enemy Act, as amended, or any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1 Purchase for Investment. Each Purchaser represents
-----------------------
that it has received all information necessary to make its investment decision
with respect to its purchase of the Notes and as it may have otherwise requested
(including without limitation the Confidential Memorandum referred to in Section
5.16) and that it is purchasing the Notes for its own account or for one or more
separate accounts maintained by it or for the account of one or more pension or
trust funds and not with a view to the distribution thereof except in accordance
with the Securi ties Act, provided that the disposition of such Purchaser's
--------
property shall at all times be within its control. Each Purchaser understands
that the Notes have not been registered under the Securities Act and may be
resold only if registered pursuant to the provisions of the Securities Act or if
an exemption from registration is available, except under circumstances where
neither such registration nor such an exemption is required by law, and that the
Company is not required to register the Notes under the Securities Act. Each
Purchaser represents that it is not
20
an "affiliate" (as defined in Rule 144 under the Securities Act) of the Company,
it is not acting on behalf of the Company and it is a "Qualified Institutional
Buyer" within the meaning of Rule 144A promulgated under the Securities Act or
an institutional "Accredited Investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) promulgated under the Securities Act. Such acquisition will be
for its own account or for the account of another Qualified Institutional Buyer.
Section 6.2 Source of Funds. Each Purchaser represents that at
---------------
least one of the following statements is an accurate representation as to each
source of funds (a "Source") to be used by it to pay the purchase price of the
Notes to be purchased by it hereunder:
(a) if such Purchaser is an insurance company, the Source does
not include Plan assets allocated to any separate account maintained by
such Purchaser in which any employee benefit plan (or its related trust)
has any interest, other than a separate account that is maintained solely
in connec tion with such Purchaser's fixed contractual obligations under
which the amounts payable, or credited, to such plan and to any participant
or benefi ciary of such plan (including any annuitant) are not affected in
any manner by the investment performance of the separate account; or
(b) the Source is either (i) an insurance company pooled separate
account, within the meaning of Prohibited Transaction Exemption ("PTE") 90-
1 (issued January 29, 1990), or (ii) a bank collective investment fund,
within the meaning of the PTE 91-38 (issued July 12, 1991) and, except as
such Purchaser has disclosed to the Company in writing pursuant to this
paragraph (b), no employee benefit plan or group of plans maintained by the
same employer or employee organization beneficially owns more than 10% of
all assets allocated to such pooled separate account or collective
investment fund; or
(c) the Source constitutes assets of an "investment fund" (within
the meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of the
QPAM Exemption), no employee benefit plan's assets that are included in
such investment fund, when combined with the assets of all other employee
benefit plans established or maintained by the same employer or by an
affiliate (within the meaning of Section V(c)(1) of the
21
QPAM Exemption) of such employer or by the same employee organization and
managed by such QPAM, exceed 20% of the total client assets managed by such
QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled by the
QPAM (applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (i) the identity
-
of such QPAM and (ii) the names of all employee benefit plans whose assets
--
are included in such investment fund have been disclosed to the Company in
writing pursuant to this paragraph (c); or
(d) the Source is a governmental plan; or
(e) the Source is one or more employee benefit plans, or a
separate account or trust fund comprised of one or more employee benefit
plans, each of which has been identified to the Company in writing pursuant
to this paragraph (e); or
(f) the Source does not include Plan assets of any em ployee
benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "EMPLOYEE BENEFIT PLAN", "GOVERNMENTAL
PLAN", "PARTY IN INTEREST" and "SEPARATE ACCOUNT" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
7. INFORMATION AS TO COMPANY.
Section 7.1 Financial and Business Information. Grand Parent or
----------------------------------
the Company, as appropriate, shall deliver or cause to be delivered to each
Holder the following:
(a) No later than 10 days after the end of each fiscal year of
the Company an Annual Operating Business Plan containing the informa tion
listed in items (i) through (vi) in this paragraph and the exhibits con
tained in the Annual Operating Business Plan delivered pursuant to clause
(o) of Article 4 for the next-succeeding fiscal year. The Annual Operating
Business Plan shall contain
22
(i) internally prepared statements of in come and expense of the
Company in reasonable detail for the appli cable period prepared in all
material aspects in accordance with GAAP (except for the absence of
footnotes),
(ii) a schedule of all Capital Expenditures estimated to be made
during the period,
(iii)a statement of the amounts and times by which the Company
needs to raise additional capital to meet its obligations when due during
the period,
(iv) a projected balance sheet of the Com pany,
(v) a projected cash flow statement of the Company, and
(vi) a statement listing all material assump tions which formed
the basis for all information provided pursuant to clauses (i) through (v),
each together with supporting schedules in sufficient detail as needed and
in all material aspects in accordance with the Annual Operating Business
Plan delivered pursuant to clause (o) of Article 4 and on a consistent
basis.
(b) No later than August 14 of each fiscal year of the Company, a
report, certified as true and correct by the chief or principal financial
or accounting officer of the Company, that shows in reasonable detail,
variances, if any, between the actual operating performance of the Company
and what was estimated for the first six months of such fiscal year in the
Annual Operating Business Plan for such fiscal year and explains in
reasonable detail in form satisfactory to the Required Secured Creditors
the reasons for the discrepancies between them, if any.
(c) (i) As soon as practicable, but in any event not later than
45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company, copies of the internally prepared unaudited
consolidated balance sheet of the Company, as at the end of such quarter,
and the related consolidated statement of income and statement of cash flow
23
for the portion of the Company's fiscal year then elapsed, all in
reasonable detail and each setting forth in comparative form
(A) the figures for the prior year's corresponding fiscal
quarter and
(B) any variances from the Annual Operating Business Plan,
prepared in all material respects in accordance with GAAP, together with a
certifica tion by the principal financial or accounting officer of the Company
that the informa tion contained in such financial statements fairly presents
the financial position of the Company on the date thereof (subject to year-end
adjustments).
(ii) As soon as practicable, but in any event not later than 45
days after the end of each of the first three fiscal quarters of each
fiscal year of Grand Parent, copies of the internally prepared unaudited
consolidated balance sheet of Grand Parent, as at the end of such quarter,
and the related consolidated statement of income and statement of cash flow
for the portion of Grand Parent's fiscal year then elapsed, all in
reasonable detail, prepared in all mate rial respects in accordance with
GAAP, together with a certification by the principal financial or
accounting officer of Grand Parent that the information contained in such
financial statements fairly presents the financial position of Grand Parent
on the date thereof (subject to normal year-end adjustments).
(d) (i) As soon as practicable, but in any event no later than
90 days after the end of each fiscal year (commencing with the fiscal year
ended December 31, 1997) of the Company, the audited consolidated balance
sheet of the Company as at the end of such year, and the related audited
consolidated statement of income and audited consolidated statement of cash
flow for such year prepared in accordance with GAAP, and a separate
variance analysis setting forth in comparative form the figures for the
previ ous fiscal year and any variances from the applicable period of the
Annual Operating Business Plan in reasonable detail. Such balance sheet,
statement of income and statement of cash flow shall contain a certified
audit report of a nationally recognized independent certified public
accounting firm satisfactory to the Holders, such satisfaction being
acknowledged
24
by the execution of this Agreement, which report shall contain
an unqualified opinion of such accounting firm. The annual financial
statements shall also be accompanied by a management letter of the
Company's accountants (only to the extent otherwise obtained by the
Company).
(ii) As soon as practicable, but in any event no later than 90
days after the end of each fiscal year (commencing with the fiscal year
ended December 31, 1997) of Grand Parent, the audited consolidated balance
sheet of Grand Parent as at the end of such year, and the related audited
consolidated statement of income and audited consolidated statement of cash
flow for such year pre pared in accordance with GAAP. Such balance sheet
shall contain a certified audit report of a nationally recognized
independent certified public accounting firm satisfactory to the Holders,
such satisfaction being acknowledged by the execution of this Agreement,
which report shall contain an unqualified opinion of such accounting firm.
The annual financial statements shall also be accompanied by a manage ment
letter of Grand Parent's accountants (only to the extent otherwise obtained
by Grand Parent).
(e) Simultaneously with the delivery of the financial statements
referred to in subsections (c) and (d) above, a statement certified by the
principal financial or accounting officer of Grand Parent or the Com pany,
as the case may be, substantially in the form of Exhibit D to the Loan
Agreement setting forth in reasonable detail computations evidencing compli
ance with the covenants contained in Section 10.19, in each case with
respect to the fiscal quarter relating to the financial statements then
being delivered.
(f) Within 45 days after the end of each fiscal quarter of the
Company, a report on
(i) the number of cell sites constructed,
(ii) the total number of Subscribers,
(iii) the average net revenue per subscriber,
25
(iv) payments to Parent, Grand Parent and other Affiliates of
Grand Parent, whether under the Expense Alloca tion Agreement or otherwise
and
(v) equity contributions to and Indebtedness incurred by the
Company or any of its Subsidiaries, and the Persons providing the same,
during such fiscal quarter, together with a report showing variances from the
esti mates previously provided to each Holder in the Annual Operating Business
Plan, along with an explanation of discrepancies between the actual numbers and
the estimated numbers.
(g) Within three Business Days after the filing or mailing
thereof, copies of all
(i) material filed with the Securities and Exchange Commission by
any Omnipoint Note Party;
(ii) information sent to the stockholders of any Omnipoint Note
Party or lenders to any Omnipoint Note Party (exclusive of proprietary
information); or
(iii) information and reports directly and materially related to
the Company or the New York PCS Network that Parent or Grand Parent would
be required to file with the Securities and Exchange Commission pursuant to
the Exchange Act, if Parent or Grand Parent were public companies subject
to the reporting require ments of such Act; provided that, if the
--------
information or reports covered by this clause (iii) contain proprietary
information, the Company shall not be obligated to provide the proprietary
information hereunder unless the Person that is the source of the
information or reports is required to file periodic reports with the
Securities and Exchange Commission pursuant to the Exchange Act and such
Person would be required to report such information as part of such
filings.
(h) Within three Business Days after any director or officer of
any Omnipoint Note Party shall have knowledge of the occurrence
26
and continuance thereof, written notice of the occurrence and continuance
of a Default, together with a statement of what action Grand Parent, the
Company or such Omnipoint Note Party is taking or proposes to take with
respect thereto. If any Person shall give any notice or take any other
action in respect of a claimed default (whether or not constituting a
Default) under this Agree ment or any other note, evidence of indebtedness,
indenture or other obliga tion to which or with respect to which any
Omnipoint Note Party is a party or obligor, whether as principal,
guarantor, surety or otherwise, which could result in the party to whom
such indebtedness is owed having the right under the documents governing
such indebtedness to accelerate such indebtedness, and such acceleration
would have a Material Adverse Effect, Grand Parent or the Company shall, or
shall cause such other Omnipoint Note Party to, forthwith give written
notice thereof to the Holders, describing the notice or action and the
nature of the claimed default.
(i) As soon as possible, and in any event within 10 Business Days
(i) after making any such report, written notice of any
violation of any Environmental Law that any Omnipoint Note Party reports in
writing or is reportable by any Omnipoint Note Party in writing (or for
which any written report supplemental to any oral report is made) to any
Federal, state or local environmental agency and
(ii) after any Omnipoint Note Party shall become aware thereof,
written notice of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environ
mental liability, or any Federal, state or local environmental agency
or board, that, has the potential to (x) materially affect the assets,
liabilities, financial condition or operations of any Omnipoint Note
Party or the Liens and security interests for the benefit of the
Holders granted pursuant to the Collateral Documents or (y) result in
a Material Adverse Effect.
(j) As soon as possible, and in any event within 10 days after
the Grand Parent, Company or any ERISA Affiliate knows or has reason to
know or believes that any ERISA Affiliate knows or has reason to
27
know or believes that any ERISA Event has occurred, a statement of the
chief ▇▇▇▇▇ cial officer of Grand Parent or such ERISA Affiliate describing
such ERISA Event, together with any correspondence with, or filings made
with, the PBGC or Department of Labor, and the action, if any, which Grand
Parent, Company or such ERISA Affiliate proposes to take with respect
thereto.
(k) Promptly after
(i) filing the same with the Department of Labor or Internal
Revenue Service, (A) a copy of its initial actuarial statement required to
be submitted under (S) 103(d) of ERISA and Annual Report, Form 5500, with
all required attachments, in respect of each Guaranteed Pension Plan, and
(B) a notice of all subsequent filings (with copies to be provided upon
request of any Holder),
(ii) receipt or dispatch thereof, a copy of any notice, report or
demand sent or received in respect of a Guaran ▇▇▇▇ Pension Plan under
(S)(S) 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in
respect of a Multiemployer Plan, under (S)(S) 4041A, 4202, 4219, 4242, or
4245 of ERISA, and
(iii) becoming aware of the occurrence thereof, notice of (A) any
transaction that could result in the imposi tion of a penalty under (S)
502(i) of ERISA or an excise tax under (S) 4975 against Company, Grand
Parent or an ERISA Affiliate; (B) any partial or complete withdrawal from a
Multiemployer Plan by any of Company, Grand Parent or an ERISA Affiliate;
(C) a failure by any of Company, Grand Parent or an ERISA Affiliate to make
a payment to a Plan required to avoid imposition of a lien under (S) 302
(f) of ERISA; (D) the adoption of an amendment to a Guaranteed Pension Plan
requiring the provision of security under (S) 307 of ERISA; or (E) any
change in the actuarial assumptions or funding methods used for any
Guaranteed Pension Plan, where the effect of such change is to materially
increase the unfunded benefit liability or materially reduce the obligation
to make periodic contributions.
(l) Within three Business Days after becoming aware of any
setoff, claims (including, with respect to the Real Estate, environmental
28
claims), withholdings or other defenses to which any of the Collateral, or
the Holders' rights with respect to the Collateral, are subject, written
notice thereof.
(m) Within 10 days after becoming aware of
(i) any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting any Omnipoint Entity or to
which any Omnipoint Note Party is or be comes a party that could
reasonably be expected to have a Material Adverse Effect, written notice
thereof (which notice shall include a statement as to the nature and status
of the proceedings), or
(ii) any judgment not covered by insurance, final or otherwise,
against any Omnipoint Note Party in an amount in excess of $1,000,000,
written notice thereof.
(n) Within [*] days after the end of each fiscal year of Grand
Parent, beginning with its fiscal year ended [*], a report that includes
calculations showing in reasonable detail Grand Parent's Excess Cash Flow
for such fiscal year, if any, certified as correct by Grand Parent's chief
or principal accounting or financial officer.
(o) Within three Business Days after its receipt or dispatch
thereof, copies of all material notices and correspondence received from or
sent to the FCC relating to the New York PCS Network License.
(p) Not later than 30 days prior to the occurrence thereof,
written notice to the Holders of a change in (i) the business of any
Omnipoint Entity, (ii) the location of the Collateral (subject to the
provisions of the relevant Collateral Document), or (iii) the location
where any Omnipoint Note Party's books and records are kept.
(q) As may be reasonably requested by the Holders (but in no
event more frequently than once per year) an update of the Full-Term
Operating Plan, including projections of the Company's performance through
the Maturity Date.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
29
(r) Promptly upon request of any Holder, the Company shall
provide such holder, and any qualified institutional buyer designated by
such holder, such financial and other information (including, but not
limited to, copies of all Note Documents, as amended and of the most recent
financial statements delivered to the Holders pursuant to Section 7.1) as
is necessary in order to permit compliance with the information
requirements of Rule 144A(d)(4) under the Securities Act in connection with
the resale of Notes, except at such times as the Company is subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act. For
purposes of this paragraph, the term "qualified institutional buyer" shall
have the meaning specified in Rule 144A under the Securities Act.
(s) Such other information concerning its or any other Omnipoint
Note Party's business, operations or financial condition as shall be
reasonably requested by any Holder.
(t) Notwithstanding the delivery requirements of the Company and
the Grand Parent pursuant to this Section 7.1, any Holder may notify the
Company and the Grand Parent that such Purchaser elects not to receive any
or all material non-public documentation of the Omnipoint Entities referred
to in this Section 7.1 without affecting the Company's compliance with this
clause (f).
Section 7.2 Inspection of Properties and Books.
----------------------------------
(a) Grand Parent and the Company shall, and shall cause each
other Omnipoint Note Party to, permit the Holders and their other
designated representatives to visit and inspect any of the Properties of
the Omnipoint Note Parties, to examine the books of account of the
Omnipoint Note Parties (and to make copies thereof and extracts therefrom),
and to discuss the affairs, finances and accounts of the Omnipoint Note
Parties with, and to be advised as to the same by, its officers, all at
such reasonable times and intervals as any Holder may reasonably request.
(b) Grand Parent and the Company authorize each Holder to
communicate directly with Grand Parent's and the Company's independent
certified public accountants and authorizes such accountants to disclose to
the Holders any and all financial statements and other supporting financial
documents and schedules including copies of any management letter
30
with respect to the business, financial condition and other affairs of
Grand Parent and the Company. At the reasonable request of the Required
Secured Credi tors, Grand Parent or the Company shall deliver a letter
addressed to such accountants instructing them to comply with the
provisions of this Section 7.2(b).
8. PREPAYMENT OF THE NOTES.
Section 8.1 Term/Amortization. The Company shall repay the
-----------------
outstanding principal amount of the Notes on the Initial Payment Date and each
Payment Date thereafter until (and including) the Maturity Date, in an amount
equal to the Installment Amount for each such date.
Section 8.2 Required Prepayments.
--------------------
(a) The Company shall prepay the outstanding Notes (and Loans in
accordance with Section 3.2 of the Loan Agreement) in an amount equal to
[*] of the amount of the Net Cash Proceeds of a Permitted Asset Sale (other
than a sale described in clauses (i) and (ii) of the definition of
"Permitted Asset Sales") in excess of [*] from all such sales in the
aggregate to the extent such excess Net Cash Proceeds have not been rein
vested or otherwise applied in accordance with clause (iii) or (iv), as
applicable, of the definition of "Permitted Asset Sales."
(b) No later than [*] days after the end of any fiscal year
commencing on or after [*] during which Grand Parent shall have any Excess
Cash Flow, the Company shall prepay the outstanding Notes (and Loans in
accordance with Section 3.2 of the Loan Agreement) in an amount equal to
[*] of such Excess Cash Flow.
(c) All prepayments of the Notes required by Section 8.2(a) and
(b) shall be applied against the Installment Amounts on a pro rata basis
among (i) all such Installment Amounts and (ii) Tranche A Amounts and
Tranche B Amounts.
Section 8.3 Optional Prepayments. (a) Subject to Section 8.3(b),
--------------------
upon provision of written notice to the Holders and the Lenders (in accordance
with Section 3.3 of the Loan Agreement), the Company shall have the right to
prepay the Notes and Loans in whole or in part from time to time in an aggregate
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
31
principal amount of [*] or any integral multiple of [*] in excess thereof, in
accordance with Section 8.4.
(b) Any prepayment by the Company pursuant to Section 8.3(a)
shall be subject to a prepayment premium to be paid to the Holders
determined in accordance with the table set forth below (a "Prepayment
Premium") and payable at the time of such prepayment, which Prepayment
Premium shall not reduce the principal amount owed by the Company.
Date of Prepayment Amount of Premium (percentage
amount multiplied by principal amount
From and To and to be repaid)
Including Including
--------------------------------------------------------------------------------
The Closing Date to the [*] month [*]
anniversary thereof
--------------------------------------------------------------------------------
The day after the [*] month anniversary [*]
of the Closing Date to the [*] month
anniversary thereof
--------------------------------------------------------------------------------
The day after the [*] month anniversary [*]
of the Closing Date to the [*] month
anniversary thereof
--------------------------------------------------------------------------------
The day after the [*] month anniversary [*]
of the Closing Date to the [*] month
anniversary thereof
--------------------------------------------------------------------------------
The day after the [*] month anniversary [*]
of the Closing Date to the [*] month
anniversary thereof
--------------------------------------------------------------------------------
At any time after the [*] month [*]
anniversary of the Closing Date
--------------------------------------------------------------------------------
Section 8.4 Allocation of Partial Prepayments.
----------------------------------
In the case of each partial prepayment of the Notes, the principal
amount of the Notes to be prepaid shall be allocated among all of the Notes at
the
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
32
time outstanding in proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof not theretofore called for prepayment.
Section 8.5 Maturity; Surrender, etc.
-------------------------
In the case of each prepayment of Notes pursuant to this Article 8,
the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment, together with interest on such
principal amount accrued to such date and the applicable Prepayment Premium, if
any. From and after such date, unless the Company shall fail to pay such
principal amount when so due and payable, together with the interest and
Prepayment Pre mium, if any, as aforesaid, interest on such principal amount
shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to
the Company and cancelled and shall not be reissued, and no Note shall be issued
in lieu of any prepaid principal amount of any Note.
Section 8.6 Certain Matters Relating to Repayments and Prepayments.
-------------------------------------------------------
(a) All prepayments and repayments pursuant to this Article 8 shall be
accompanied by such additional amounts as are sufficient to pay accrued and
unpaid interest on the principal amount of the Notes then being prepaid or
repaid.
(b) All prepayments and repayments of outstanding Loans and Notes
shall be paid to the Lenders and Holders, respectively, on a pro rata basis
according to the sum of (i) aggregate outstanding principal amount of Loans
and Commitments owed to the Lenders (ratably among all Installment Amounts)
and (ii) amounts owing under the Notes to the Holders ratably according to
the aggregate outstanding principal amount of Notes owed to such Holders.
9. AFFIRMATIVE COVENANTS.
Each of Grand Parent and the Company covenants and agrees that, so long as
any Note is outstanding or any of the Obligations remain unsatisfied:
33
Section 9.1 Maintenance of Office. Each Omnipoint Note Party's
---------------------
chief executive office shall be located at its address for notices specified in
Section 18, except that any Omnipoint Note Party may change its chief executive
office on not less than 30-days' advance written notice to the Holders and the
Paying Agent and after taking all such action as may be necessary or appropriate
or requested by the Required Secured Creditors to continue the perfection of the
Holder's security interest in the Collateral.
Section 9.2 Records and Accounts. Grand Parent and the Com pany
--------------------
shall, and shall cause the other Omnipoint Note Party to:
(a) keep true and accurate records and books of account in which
full, true and correct entries shall be made in accordance with GAAP, and
(b) maintain adequate accounts and reserves for all taxes
(including income taxes), depreciation, depletion, obsolescence and
amortiza tion of its Properties, contingencies and other reserves.
Section 9.3 Corporate Existence; Maintenance of Licenses.
--------------------------------------------
(a) Grand Parent and the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence and shall cause the other Omnipoint Note Parties to do
or cause to be done all things necessary to preserve and keep in full force
and effect their existence. Grand Parent and/or the Company shall maintain
or cause to be maintained in full force and effect,
(b) with respect to the construction, installation and
development of facilities for the New York PCS Network, the FCC Licenses
for the New York PCS Network and all material Necessary Authorizations
appropriate to the level of development theretofore achieved and sufficient
to avoid noncompliance with the then applicable minimum build-out require
ments under the FCC Licenses for the New York PCS Network, and
(c) with respect to the operation of those portions of the New
York PCS Network the development of which has theretofore been completed,
all material Licenses, copyrights, patents, franchises, Necessary
34
Authorizations and other rights as are necessary and sufficient to operate
such completed portions.
Grand Parent and the Company will, and will cause the other Omnipoint Entities
to, at all times perform and observe all covenants and conditions on its part to
be performed and observed under FCC rules and regulations or with respect to the
FCC License for the New York PCS Network and not cause or permit to exist any
grounds for the FCC to revoke or suspend or not to renew such License.
Section 9.4 Maintenance of Properties. Grand Parent and the
-------------------------
Company shall, and shall cause the other Omnipoint Note Parties to, do or cause
to be done all things necessary to preserve and keep in full force and effect
its ▇▇▇▇ chises, employment contracts and permits. Each of Grand Parent and
the Company shall, and shall cause the other Omnipoint Note Parties to
(a) cause all of its Properties used or useful in the conduct of
its business to be maintained and kept in good condition, repair and
working order (ordinary wear and tear excepted) and supplied with all
necessary equipment;
(b) cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment
of Grand Parent or the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times;
(c) continue to engage primarily in the businesses now conducted
by it and in related businesses; and
(d) continue in full force and effect all authorizations and
approvals required to conduct its business as appropriate to the then level
of construction, development and operation of the New York PCS Network;
provided that, each Omnipoint Note Party shall not be required to do any of the
foregoing set forth in clauses (a) or (b) if any such requirement is no longer
desirable or necessary in the conduct of such Omnipoint Note Party's business
and no Material Adverse Effect could reasonably be expected to occur as a result
thereof.
35
Section 9.5 Insurance. Grand Parent and the Company shall, and
---------
shall cause each other Omnipoint Note Party, to the extent such Omnipoint Note
Party owns applicable Properties, to, obtain and maintain insurance with respect
to its Properties and business with insurers that hold an A.M. Best rating of
"A" or better. The insurance coverage shall
(a) be at least in such amounts and against at least such risks
as are customarily insured against by companies engaged in the same or a
similar business, which insurance shall in any event not provide for materi
ally less coverage than the insurance in effect on the Closing Date;
(b) with respect to all liability insurance (other than with
respect to the Property of Grand Parent), name the Collateral Agent for the
benefit of the Secured Creditors as an additional insured;
(c) with respect to casualty insurance (other than with respect
to Grand Parent), name the Collateral Agent as loss payee for the benefit
of the Secured Creditors as its interest may appear; and
(d) provide that the insurer will give the Holders at least 30-
days' prior written notice of the cancellation or any material change in
the coverage, aggregate limits or any other provision of such insurance.
The Company shall deliver to the Holders, no later than March 31 in each
calendar year and otherwise promptly on request by the Required Holders,
certificate(s) of insurance confirming compliance with the requirements of this
Section 9.5 and setting forth any deductibles applicable to any insurance
coverage.
Section 9.6 Taxes. Grand Parent and the Company shall, and shall
-----
cause each other Omnipoint Entity to, duly pay and discharge, or cause to be
paid and discharged, before the same shall become overdue, all taxes,
assessments and other governmental charges imposed upon it (including all
amounts due and owing to the FCC under the FCC Licenses for the New York PCS
Network) and its Real Estate, sales and activities, or any part thereof, or upon
the income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a Lien or charge upon any of its
Property; provided that any such tax, assessment, charge, levy or claim need not
--------
be paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the relevant Omnipoint Entity has set
aside on its books adequate
36
reserves with respect thereto; and provided further that each Omnipoint Entity
-------- -------
will pay all such taxes, assessments, charges, levies or claims forthwith upon
the commencement of proceedings to foreclose any Lien that may have attached as
security therefor.
Section 9.7 Compliance with Laws, Contracts, License, and Permits.
-----------------------------------------------------
Each of Grand Parent and the Company shall, and shall cause each other Omnipoint
Note Party to, comply in all material respects with
(a) the applicable laws and regulations wherever its business is
conducted, including all Environmental Laws, all Environmental Permits,
ERISA, the IRC, the Communications Act, and all FCC rules and regulations;
(b) the provisions of its charter documents and by-laws;
(c) all Material Contracts to which it is a party and by which it
or any of its Properties may be bound;
(d) all obligations with respect to any Employee Benefit Plan or
Multiemployer Plan; and
(e) all applicable decrees, orders and judgments.
If any authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or required
in order that any Omnipoint Note Party may fulfill any of the Obligations
hereunder or under any of the other Note Documents to which such Omnipoint Note
Party is a party, Grand Parent and the Company shall, and cause each other
Omnipoint Note Party to, immediately take or cause to be taken all reasonable
steps within the power of Grand Parent, the Company or such other Omnipoint Note
Party to obtain such authoriza tion, consent, approval, permit or license and
furnish the Holders evidence thereof.
Section 9.8 Further Assurances.
------------------
(a) Grand Parent and the Company shall, and shall cause each other
Omnipoint Note Party to, cooperate with the Holders and shall execute and
pay for the filing of all such further instruments and documents,
37
including UCC financing statements and other security documents, as the
Required Secured Creditors shall reasonably deem appropriate in order to
effectuate the grant of the Liens and security interests to the Collateral
Agent for the benefit of the Secured Creditors contemplated by the Note
Documents and to carry out to their satisfaction the transactions
contemplated by the Note Documents.
(b) If the Holders shall so request, Grand Parent and the Company
shall, and shall cause each other Omnipoint Note Party to, cooperate with
the Holders and shall execute, and pay all costs and expenses in connection
with, the establishment, execution and delivery of an indenture and related
documentation, as the Holders shall deem appropriate. The Company shall
elect a trustee in connection with any such indenture as may be reasonably
acceptable to the Required Secured Creditors.
(c) Promptly after the Closing Date, the Company and the Grand Parent
shall have filed with the Securities and Exchange Commission this Agreement
and the Loan Agreement as Form 8-K exhibits.
Section 9.9 Authorization from Landlord/Mortgagee, Etc. The
------------------------------------------
Company shall request that any landlord, mortgagee and easement grantor of the
Company agree to give the Collateral Agent, on a best-efforts basis, notice of
any default by the Company under the terms or conditions of any agreement
between the Company and any landlord, mortgagee of any such landlord or easement
grantor, and allow the Collateral Agent or any Holder to inspect or remove any
Property of the Company after the occurrence and continuance of an Event of
Default.
Section 9.10 Attornment and Recognition Agreements. The Company
-------------------------------------
shall obtain all attornment and recognition agreements from any landlord or
landlord's mortgagee of Real Estate leased or owned by the Company upon which
any Collateral (with a fair value in excess of [*]) is stored or located, in
form and substance reasonably satisfactory to the Required Secured Creditors.
The Company shall use its best efforts to obtain all attornment and recognition
agree ments from any landlord or landlord's mortgagee of Real Estate leased or
owned by the Company upon which all other Collateral not covered by the
immediately preceding sentence is stored or located, in form and substance
reasonably satisfactory to Required Secured Creditors.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
38
Section 9.11 Allocation Agreement. The Company shall comply with
--------------------
the terms of the Expense Allocation Agreement and not consent to any waiver,
modification or amendment thereto.
Section 9.12 Certified Copies of Insurance Policies. Within 30
--------------------------------------
days after the Closing Date, the Company shall, to the extent not otherwise
delivered on the Closing Date pursuant to clause (t) of Article 4, deliver to
the Holders copies of all insurance policies that shall have been required to
have been delivered to the Purchasers by the Closing Date pursuant to clause (i)
of Article 4, certified by the applicable insurer(s).
Section 9.13 Access Agreements. Grand Parent and the Company shall
-----------------
comply with the provisions of the Access Agreements and shall ensure that the
Access Agreements remain in full force and effect during the term of this
Agreement.
Section 9.14 License Subsidiary. The Company agrees that it shall
------------------
(i) within 30 Business Days after the Closing Date, file all appropriate
applications and other regulatory filings necessary in order to transfer all of
the FCC Licences held by the Company to the License Subsidiary, which License
Subsidiary shall hold no other properties and assets other than such FCC
Licenses for the New York PCS Network and engage in no other business other than
holding such License and sublicensing such License to the Company pursuant to
the Operating Agreement, and (ii) use reasonable best efforts to effectuate such
transfer, by taking all reasonable actions as may be necessary, as promptly as
practical after the Closing Date. Upon creation of such License Subsidiary as
of the Closing Date, the License Subsidiary shall guaranty the Obligations of
the Company pursuant to the Subsidiary Guaranty, the License Subsidiary shall
enter into a security agreement substantially in the form of the Borrower
Security Agreement (except for provisions thereof relating to lockbox accounts),
and the Company shall ▇▇▇▇▇ ▇ ▇▇▇▇ on, and pledge of, all of the Capital Stock
(or membership interests) of the License Subsidiary owned by the Company
(representing 100% of the issued and outstanding Capital Stock or mem bership
interests of the License Subsidiary) to the Collateral Agent for the benefit of
the Secured Creditors, as security for the Obligations of the Company pursuant
to the Borrower Pledge Agreement, and the Company shall, and shall cause such
License Subsidiary to, provide authorizing resolutions, certified organizational
documents and opinions of counsel in connection with the foregoing, in each case
in form and substance reasonably satisfactory to the Required Holders.
39
Section 9.15 Proceeds from Notes. (a) The Company shall maintain
--------------------
the proceeds from the Notes either (i) at OIT or (ii) in the account created
under the Borrower Securities Account Control Agreement, and in either case
shall cause the Collateral Agent for the benefit of the Secured Creditors to
have a first priority perfected security interest in such proceeds, until such
time as such proceeds are used for the purposes specified in clause (b).
(b) The proceeds of the Notes shall be available (and the Company
shall use such proceeds)
(i) with respect to the Tranche A Amounts (together with
Tranche A Loans under the Loan Agreement) only, to repay in full the
Existing Bank Debt on the Closing Date;
(ii) subject to Section 7.5 hereof, to make direct or indirect
(through another Subsidiary of Grand Parent) Distributions to Grand
Parent, so long as such Distributions are immediately invested in the
business of Grand Parent's Subsidiaries; and
(iii) for general corporate purposes of the Borrower and the
License Subsidiary;
provided that all proceeds not applied as specified under clauses (i), (ii) or
(iii) above shall, together with any remaining funded amounts under Tranche B
Loans, be held until used for the purposes described in clauses (ii) and (iii)
above, in a cash account of the Borrower pursuant to the Borrower Securities
Account Control Agreement.
Section 9.16 Book-Entry Form. As of the Closing Date, the Notes
---------------
shall be issued in the form of a single typewritten Note representing a Book-
Entry Note, and the Holders shall not receive a Definitive Note representing the
Holders' interest in such Note, except as provided in Section 9.18. Unless and
until Definitive Notes have been issued to the Holders pursuant to Section 9.18:
(a) the provisions of this Section 9.16 shall be in full force
and effect;
40
(b) the Company may deal with the Clearing Agency for all
purposes (including the payment of principal of and interest on, or any
other amounts with respect to, the Book Entry Note) as the authorized
representative of such Holder;
(c) to the extent that the provisions of this Section 9.16
conflict with any other provisions of this Agreement, the provisions of
this Section 9.16 shall control;
(d) the rights of the Holders of such Note shall be exer cised
only through the Clearing Agency and shall be limited to those estab
lished by law and agreements between such Holders and the Clearing Agency
and/or the Clearing Agency Participants. Pursuant to the DTC Agreement,
unless and until Definitive Notes are issued pursuant to Section 9.18, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments of principal and
interest on, or any other amounts with respect to, the Notes to such
Clearing Agency Participants;
(e) whenever this Agreement requires or permits actions to be
taken based upon instruction or directions of the Required Holders, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Holders and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes has delivered
such instructions to the Company.
Section 9.17 Notices to Clearing Agency. With respect to any Book-
--------------------------
Entry Note, whenever a notice or other communication to the Holders is required
under this Agreement, unless and until Definitive Notes shall have been issued
to Holders pursuant to Section 9.18, the Company shall give all such notices and
communications specified herein to be given to the Holders to the Clearing
Agency and the Paying Agent.
Section 9.18 Definitive Notes. With respect to any Book-Entry Note,
----------------
if (i)(A) the Company advises the Holders in writing that the Clearing Agency is
no longer willing or able to properly discharge its responsibilities under the
related DTC Agreement, and (B) the Company is unable to locate a qualified
successor, or (ii) after the occurrence of an Event of Default, the Required
Holders
41
advise the Company and the Clearing Agency Participants in writing that the
continuation of a book-entry system the Clearing Agency is no longer in the best
interests of the Holders, then the Company shall notify all Holders and the
Paying Agent, through the Clearing Agency, of the occurrence of any such event
and of the availability of Definitive Notes to Holders requesting the same. Upon
surrender to the Company of the single typewritten Note representing the Book-
Entry Notes by the Clearing Agency, accompanied by registration instructions,
the Company shall issue the Definitive Notes in accordance with the instructions
of the Clearing Agency. Upon the issuance of Definitive Notes, the Company shall
recognize the Holders of the Definitive Notes as Holders.
Section 9.19 Registered Issue. In the event Notes are not issued as
----------------
Book-Entry Notes, and all of the Holders subsequently request that the Notes be
converted to Book-Entry Notes, the Company hereby agrees to take all steps neces
sary to so convert such Notes, including executing a Letter of Representation
with the Clearing Agency and paying any and all costs and expenses associated
with converting the Notes to Book-Entry Notes.
10. NEGATIVE COVENANTS.
Each of Grand Parent and the Company covenants and agrees that, so long as
any Note is outstanding or any of the Obligations remain unsatisfied:
Section 10. Restrictions on Indebtedness. Grand Parent and the
----------------------------
Company shall not, and shall not permit any other Omnipoint Entity to, create,
incur, assume, suffer to exist or otherwise become or remain directly or
indirectly liable with respect to, any Indebtedness, other than:
(i) Indebtedness hereunder and under the other Note Documents;
(ii) Indebtedness outstanding on the Closing Date and, with
respect to the Omnipoint Loan Parties, set forth on Schedule 7.1 to the
Loan Agreement (on a pro forma basis, after giving effect to the
refinancing, retirement and payment of amounts outstanding under the
Existing Loan Agreement);
(iii) Indebtedness permitted under Section 10.3;
42
(iv) Additional Loans as permitted pursuant to Section 2.1(b) of
the Loan Agreement;
(v) Indebtedness of Grand Parent that is (i) unsecured or
secured solely by the assets of any one or more Non-Party Subsidiaries,
(ii) not guaranteed or supported by the Company or any Guarantor (other
than limited recourse guaranties by OHI secured by Liens permitted pursuant
to Section 10.2(x), (iii) on terms and conditions at least as favorable as
then prevailing "market terms" and (iv) the proceeds of which are used in
Grand Parent's and its Subsidiaries' telecommunications business.
(vi) Provided that the Holders have received a certificate of
the chief or principal accounting or financial officer of the Company to
the effect that no Default is in existence or would result therefrom,
Indebtedness of the Company (including vendor financing) secured on a pari
passu basis with the Notes (pursuant to an intercreditor arrangement to be
negotiated in good faith and with out unreasonable delay with the Secured
Creditors, providing sharing of the proceeds of collateral on a pro rata
basis similar to the Intercreditor Agreement, which arrangement shall be
satisfactory to the Required Secured Creditors);
(vii) So long as no Default is in existence or would result
therefrom, (A) Indebtedness secured in accordance with Section 10.2(vi),
(vii) and (viii), as applicable, incurred in the acquisition of Real Estate
capital lease obligations and (B) other purchase money financing, in an
aggregate amount (including any refinancing thereof pursuant to clause (x)
below) not to exceed [*];
(viii) Intercompany Indebtedness of the Guarantors on the terms
and conditions set forth herein;
(ix) Indebtedness of any Non-Party Subsidiary, so long as such
Indebtedness is not secured by any of the Collateral, and neither the
Company nor any Guarantor has any Contingent Obligations with respect to
such Indebtedness;
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43
(x) Indebtedness providing for the refinance, refunding, renewal or
replacement of Indebtedness incurred pursuant to clauses (v), (vi) and
(vii) above (so long as such Indebtedness could have been incurred under
such clauses (v), (vi) and (vii); provided that (i) any such Indebtedness
does not exceed the amount so refinanced, refunded, renewed or replaced
plus the amount of any premium, accrued interest, fees and other related
expenses incurred in connection with the consummation of any such
Indebtedness, (ii) the maturity date of such Indebtedness is no earlier
than the maturity date of such original Indebtedness; (iii) no collateral
is used to secure such Indebtedness other than the collateral pledged in
connection with such original Indebtedness; and (iv) if such refinancing,
refunding, renewal or replacement applies to the Company's FCC Indebtedness
and is incurred by a lender other than the FCC, such refinancing,
refunding, renewal or replacement and any Liens in connection therewith
shall not be senior in any respect to the position of the Secured
Creditors.
(xi) Indebtedness under the Loan Agreement; and
(xii) Indebtedness in respect of performance, surety or appeal bonds
provided in the ordinary course of business.
For purposes of determining compliance with this Section 10.1, in the event
that an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the above clauses, the Company, in its sole
discretion, shall classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of such clauses.
Section 10.2 Liens. Grand Parent and the Company shall not, and
-----
shall not permit any other Omnipoint Entity to, create, incur, assume or suffer
to exist, directly or indirectly, any Lien on any of its property now owned or
hereafter acquired, other than the following (each a "Permitted Lien"):
(i) Liens existing on the Closing Date and, with respect to
the Omnipoint Loan Parties, set forth on Schedule 7.2 of the Loan
Agreement;
(ii) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings diligently
44
conducted and with respect to which adequate reserves are being maintained
in accordance with GAAP;
(iii) Statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by Law (other
than any Lien imposed by ERISA or pursuant to any Environmental Law)
created in the ordinary course of business for amounts not yet due or which
are being contested in good faith by appropriate proceedings diligently
conducted and with respect to which adequate reserves are being maintained
in accordance with GAAP;
(iv) Easements, rights-of-way, zoning and similar restrictions
and other similar charges or encumbrances not interfering with the ordinary
conduct of the business of the Omnipoint Entity subject thereto and which
do not detract materially from the value of the property to which they
attach or impair materially the use thereof by the Omnipoint Entity subject
thereto or materially ad versely affect the security interests of the
Collateral Agent for the benefit of the Secured Creditors;
(v) Liens granted to the Collateral Agent for the benefit of
the Secured Creditors pursuant to the Note Docu ments securing the
Obligations and Liens securing Indebtedness permitted under Section
10.1(iv) and (vi);
(vi) Purchase money security interests on any property acquired
or held by any Omnipoint Note Party in the ordinary course of business,
securing Indebtedness incurred or as sumed for the purpose of financing all
or any part of the cost of acquiring such property; provided that (i) any
such Lien attaches to such property concurrently with or within [*] days
after the acquisition thereof or such longer period as may be permitted
under the applicable Uniform Commercial Code, (ii) such Lien attaches
solely to the property so acquired in such transaction and (iii) the
principal amount of the debt secured thereby does not exceed the purchase
price of the asset so financed;
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45
(vii) Liens created pursuant to Capitalized Leases permitted
under this Agreement, provided that such Liens are only in respect of the
--------
property or assets subject to, and secure only, the respective Capitalized
Lease;
(viii) Mortgage (or deed of trust) Liens to secure the payment of
Indebtedness permitted to be incurred under Section 10.1(vii), provided
that the amount secured by any such Lien shall not exceed the sum of the
acquisition cost of the Real Estate acquired and the cost of any
improvements constructed thereon.
(ix) Liens on the Capital Stock of OTI and ODCI, and the
Intellectual Property of Grand Parent used by OTI and not required for the
operation of the business of any of the other Subsidiaries of Grand Parent,
so long as Grand Parent and has exe cuted and complied with the Access
Agreements;
(x) Liens on the notes made payable by Non-Party Subsidiaries
evidencing the Intercompany Indebtedness owed to OHI;
(xi) Liens on the assets of Non-Party Sub sidiaries;
(xii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensa tion, unemployment insurance
and other types of social security;
(xiii) Liens incurred or deposits made to secure the performance
of tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, govern ment contracts, performance
and return of money bonds and other obligations of a similar nature
incurred in the ordinary course of business (exclusive of obligations for
the payment of borrowed money);
(xiv) Liens (including extensions and renew als thereof) upon
real or personal property; provided that such Liens
46
are created solely for the purpose of securing Indebtedness incurred in
accordance with Section 10.1(x) to refinance refund, renew or replace any
such Indebtedness previously so secured; and provided further that such
Liens were in existence prior to such refinancing;
(xv) Liens arising from filing Uniform Commercial Code
financing statements regarding leases permitted hereunder;
(xvi) Liens arising from the rendering of a final judgment or
order against any Omnipoint Entity that do not give rise to an Event of
Default; and
(xvii) Liens in connection with the Loan Agreement.
Section 10.3 Contingent Obligations. Grand Parent and the Company
----------------------
shall not, and shall not permit any other Omnipoint Entity to, create, incur,
assume, suffer to exist or become or be liable with respect to any Contingent
Obliga tion, except:
(i) Contingent Obligations for the benefit of the Secured
Creditors under the Intercreditor Agreement pursuant to the Collateral
Documents securing or supporting the Obligations, including Indebtedness
permitted under Section 10.1(iv), (vi) and (xi);
(ii) Contingent Obligations which are in existence on the
Closing Date and, with respect to the Omnipoint Loan Parties, which are set
forth on Schedule 7.3 to the Loan Agreement;
(iii) Grand Parent may provide unsecured guarantees of
Indebtedness of its Subsidiaries permitted hereunder;
(iv) Contingent Obligations of the Omnipoint Entities
constituting Indebtedness permitted under Section 10.1; and
47
(v) Any commitments provided by Grand Parent in favor of any
of its Subsidiaries to make any Investments in any such Subsidiaries
permitted under Section 10.4.
Section 10.4 Restrictions on Investments. Grand Parent and the
---------------------------
Company shall not, and shall not permit any other Omnipoint Entity to, make or
permit to exist or to remain outstanding any Investment except:
(a) Investments in Rate Hedging Agreements in a notional
principal amount on any date not to exceed the aggregate principal amount
of Indebtedness of the Company accruing interest at a floating rate, and
only so long as the purpose of such Investments shall be to hedge such
floating-rate interest and shall not be to speculate on interest rates;
(b) Investments in commercial paper maturing in 90 days or less
from the date of issuance which, at the time of acquisition thereof, is
accorded a rating of A1 or better by Standard & Poor's Ratings Group or P1
or better by ▇▇▇▇▇'▇ Investors Service, Inc. or an equivalent rating by
another nationally recognized credit-rating agency of similar standing;
(c) Investments in
(i) direct obligations of, or obligations guaranteed by, the
United States of America or any agency that constitutes a full-faith and-
credit obligation of the United States of America, in any case maturing in
12 months or less from the date of acquisition thereof, and
(ii) repurchase agreements fully secured by underlying
securities of the type described in clause (i) and issued by a bank or
trust company meeting the requirements of Section 10.4(d);
(d) Investments in certificates of deposit maturing within six
months from the date of issuance thereof (i) issued by a bank or trust
company organized under the laws of the United States or any state thereof,
having capital, surplus and undivided profits aggregating at least
$500,000,000 and whose long-term certificates of deposit are, at the time
of acquisition thereof, rated AA or better by Standard & Poor's Ratings
Group
48
or AA or better by ▇▇▇▇▇'▇ Investors Service, Inc., or (ii) issued by any
Holder;
(e) Investments in money-market funds (other than single-state
funds) that make investments in accordance with the regulations of the
Securities and Exchange Commission under the Investment Company Act of
1940, as amended;
(f) Loans or advances (other than loans and advances to officers,
directors and employees to be used to exercise options with respect to the
Grand Parent's stock) not to exceed [*] in the aggregate outstanding at any
time in the usual and ordinary course of business to officers, directors
and employees for expenses (including moving expenses related to a
transfer) incidental to carrying on the business of the Omnipoint Entities;
(g) Investments existing on the date hereof and listed on
Schedule 7.4 to the Loan Agreement; and
(h) Investments in the License Subsidiary by the Company
consisting of (x) all FCC Licenses held by the Company, (y) a capital
contribution in an aggregate amount not to exceed [*] (including any
previous contribution in connection therewith) in connection with the
organization thereof and (z) capital contributions to the License
Subsidiary to the extent necessary to service scheduled principal and
amortization of the Indebtedness owed to the FCC;
(i) Provided that no Default is in existence (except with regard
to Post Default Investments) or would result therefrom, Investments by
Grand Parent and any of its directly or indirectly owned Subsidiaries; pro
vided that Investments in indirectly owned Subsidiaries shall be made by
way of a direct Investment in either OHI or Parent, which in turn may make
corresponding Investments in any of OHI's or Parent's respective
Subsidiaries;
(j) Investments by Grand Parent or the Company in OHI (and the
corresponding Investment by OHI) which are earmarked for Investments by
OHI in joint ventures with other Persons in an amount not to exceed
[*] at any one time; provided that such amount shall be
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49
increased by an amount equal to [*] of the cumulative Net Cash Proceeds of
any and all equity capital raised by Grand Parent from and after the
Closing Date through and including any such date of determination, up to a
limit of [*] less any previous Investments in joint ventures
pursuant to this clause (j) which subsequently become Subsidiaries of Grand
Parent and are in substan tially the same line of business as any one or
more Omnipoint Entities; provided further that such [*] limit
shall not apply at any time after which EBITDA for the previous 12
consecutive months exceeds [*];
(k) Transfers of assets of a Non-Party Subsidiary to another
Omnipoint Entity;
(l) Loans or advances to Grand Parent by another Omnipoint Entity
used for the purposes set forth in Section 10.5; and
(m) Seller take-back financing with respect to any dispositions
of assets of any Omnipoint Entity permitted pursuant to Section 10.6
hereof.
Section 10.5 Distributions. Grand Parent and the Company shall not,
-------------
and shall not permit any other Omnipoint Entity to, make any Distributions,
except that, (a) any Non-Party Subsidiary may make Distributions to any
Omnipoint Entity, and (b) provided that the Holders have received a certificate
of the chief or principal accounting or financial officer of the Company to the
effect that no Default under Section 10.19(e) or otherwise is in existence or
would result therefrom, (x) OIT may make distributions to Grand Parent in
respect of Investments by Grand Parent in OIT and (y) the Company and the
Guarantors may make Distributions to Guarantors, and Guarantors may make
corresponding Distributions to Grand Parent (or to OIT for immediate
distribution to Grand Parent) to (i) repay or prepay principal in respect of
Intercompany Indebtedness owing to Grand Parent or any other Omnipoint Note
Party and to pay current interest as and when due in respect of such
Indebtedness, (ii) pay interest on other Indebtedness of Grand Parent, (iii)
make Investments in Subsidiaries of Grand Parent permitted hereunder or repay or
prepay any Indebtedness of Grand Parent to any of its Subsidiaries, or (iii)
prepay (whether optional or mandatory), repurchase, redeem or make scheduled
payments of principal on, the Cap Re Notes.
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50
Section 10.6 Merger, Consolidation, Disposition of Assets, Etc.
-------------------------------------------------
(a) Grand Parent and the Company shall not, and shall not permit
any other Omnipoint Entity to, be a party to any merger or consolidation,
unless (i) the surviving entity is a United States corporation controlled
directly or indirectly by Grand Parent, (ii) no Default is in existence or
would arise immediately after giving effect to such merger or
consolidation, (iii) with respect to any merger or consolidation of any
Omnipoint Note Party, the surviving entity executes and delivers an
assignment and assumption agreement satisfactory to the Required Secured
Creditors and (iv) immediately after giving effect to such transaction, on
a pro forma basis, the consolidated net worth of the Person formed by or
surviving any such consolidation or merger, or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have been
made, will be at least equal to the consolidated net worth of the Omnipoint
Entity prior to such transaction; provided that any Omnipoint Entity (other
than an Omnipoint Note Party) may consolidate with, merge into, sell,
convey, transfer, lease or otherwise dispose of all or part of its Property
to another Omnipoint Entity (other than an Omnipoint Note Party).
(b) Grand Parent and the Company shall not, and shall not permit
any other Omnipoint Entity to, become a party to or agree to or effect any
disposition of assets, other than (i) Permitted Asset Sales, (ii)
dispositions as permitted in accordance with Section 10.16 hereof, (iii)
Permitted C-Block FCC License Transfers and (iv) permitted Investments in
accordance with Section 10.4(k) hereof; provided that nothing contained
herein shall prohibit the issuance and sale of the Capital Stock of Grand
Parent, OHI or any Non Party Subsidiary.
Section 10.7 Sale and Leaseback. Grand Parent and the Company shall
------------------
not, and shall not permit any other Omnipoint Entity to, enter into any arrange
ment, directly or indirectly, whereby such Omnipoint Entity shall sell or
transfer any Property owned by it in order then or thereafter to lease such
Property or lease other property that it intends to use for substantially the
same purpose as the Property being sold or transferred.
Section 10.8 Compliance with Environmental Laws. Except as set
----------------------------------
forth in the Current Phase I Audit and the Action Letter, Grand Parent and the
Company shall not, and shall not permit any other Omnipoint Entity to,
51
(a) use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of Materials of Environmental
Concern, except in compliance with applicable Environmental Laws;
(b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Materials of
Environmental Concern, except in compliance with applicable Environmental
Laws;
(c) generate any Materials of Environmental Concern on any of the
Real Estate, except in compliance with applicable Environmental Laws;
(d) conduct any activity at any Real Estate or use any Real
Estate in any manner so as to cause a release (i.e., releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping) or threatened release of
Materials of Environmental Concern on, upon or into the Real Estate except
in compliance with applicable Environmental Laws; or
(e) otherwise conduct any activity at any Real Estate, except in
compliance with applicable Environmental Laws, or use any Real Estate in
any manner that would violate any applicable Environmental Law or bring
such Real Estate in violation of any Environmental Law.
Section 10.9 Employee Benefit Plans. Neither Grand Parent, Company
----------------------
nor any ERISA Affiliate shall
(a) engage in any "prohibited transaction" within the meaning of
(S) 406 of ERISA or (S) 4975 of the IRC which could result in a material
liability for the Company;
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in (S) 302 of ERISA, whether
or not such deficiency is or may be waived;
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
52
which, could result in the imposition of a lien or encumbrance on the
assets of the Company pursuant to (S) 302(f) or (S) 4068 of ERISA;
(d) permit or take any action which would result in the aggregate
benefit liabilities (within the meaning of (S) 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities;
(e) fail to make when due any required contributions to a
Multiemployer Plan;
(f) withdraw (completely or partially) from any Multiemployer
Plan where such withdrawal is likely to result in a material liability of
Grand Parent or an ERISA Affiliate;
(g) terminate or institute proceedings to terminate, any
Guaranteed Pension Plan, where such termination is likely to result in a
material liability of Grand Parent or an ERISA Affiliate;
(h) make any amendment to any Guaranteed Pension Plan with
respect to which security is required under (S) 307 of ERISA; or
(i) fail to give any and all notices and make all disclosures and
governmental filings required under ERISA or the IRC where such failure is
likely to result in material liability to Grand Parent or an ERISA
Affiliate.
Section 10.10 Transactions with Affiliates. Grand Parent and the
----------------------------
Company shall not, and shall not permit any other Omnipoint Entity to, enter
into any transaction or series of related transactions, whether or not in the
ordinary course of business, with any Affiliate, other than those (i) in
existence on the date hereof and with respect to the Omnipoint Note Parties set
forth on Schedule 7.10 to the Loan Agreement or (ii) on terms and conditions
substantially as favorable to such Omnipoint Entity as would be obtainable at
the time in a comparable arm's-length transaction with a Person other than an
Affiliate (provided that agreements substan tially similar to those listed on
Schedule 7.10 to the Loan Agreement shall be deemed permitted pursuant to this
Section 10.10) or (iii) on the terms and conditions substan tially as set forth
in forms attached to the Loan
53
Agreement as the Cash Management Agreement, the Operating Agreement and the
Services Agreement (provided that with regard to the Services Agreement, the
amount of compensation shall be subject to the review and approval of the
Required Holders in accordance with clause (i) above, which approval shall not
be unreasonably withheld, delayed or conditioned) or (iv) the payment of
reasonable and customary fees to directors of an Omnipoint Entity who are not
employees of such Omnipoint Entity and any employment agreement entered into by
such Omnipoint Entity in the ordinary course of business.
Section 10.11 Change in Nature of Business.
----------------------------
(a) Grand Parent and the Company shall not, and shall not permit
any other Omnipoint Entity to, make any fundamental change in its business
as carried on and as proposed to be carried on at the date hereof
(b) Grand Parent and the Company shall not, and shall not permit
OHI or Parent to, conduct any business other than holding the Capital Stock
of its Subsidiaries now or hereafter existing and the other activities
currently conducted by it and associated with its status as a holding
company and, with respect to OHI, making loans and Investment in and to its
Subsidiaries.
(c) Grand Parent and the Company shall not permit OII or OIT to
conduct any business other than cash management and related activities.
(d) Grand Parent and the Company shall not permit the License
Subsidiary to conduct any business other than the holding of the FCC
Licenses for the New York PCS Network and the licensing thereof to the
Company.
Section 10.12 Charter Amendments. Grand Parent and the Company shall
------------------
not, and shall not permit any other Omnipoint Entity to, amend its certificate
of incorporation or bylaws in any manner adverse to the Lenders except as may be
necessary to comply with applicable law. Grand Parent and the Company shall
not, and shall not permit any other Omnipoint Entity to, amend its limited
liability company agreement, operating agreement or other organizational
documents in any manner adverse to the Holders except as may be necessary to
comply with applicable law.
54
Section 10.13 Accounting Changes. Grand Parent and the Company shall
------------------
not, and shall not permit any other Omnipoint Entity to, make or permit any
change in accounting policies or reporting practices, except as required by
GAAP, or any change in its fiscal year.
Section 10.14 Prepayments, Etc., of Indebtedness. Grand Parent and
----------------------------------
the Company shall not, and shall not permit any other Omnipoint Note Party
(other than Grand Parent) to, prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Indebtedness owing by
such Omnipoint Note Party (except that Grand Parent may prepay (whether optional
or mandatory) any Indebtedness, owing by it or any of its Non-Party
Subsidiaries, so long as (in the case of a voluntary prepayment) no payment
default exists at the Company under this Agreement or the Loan Agreement), other
than the prepayment of the Notes in accordance with the terms of this Agreement,
the Intercreditor Agreement or as the Required Secured Creditors may otherwise
agree; provided that the foregoing shall not apply to (i) Indebtedness owing to
the FCC; (ii) prepayment of Intercompany Indebtedness to the extent the proceeds
of Distributions may be used in compliance with Section 10.5 and prepayments of
Intercompany Indebtedness existing as of the Closing Date; and (iii)
notwithstanding anything contained in this Section 7.14, Grand Parent may
refinance the Senior Notes provided that such refinancing (x) is unsecured and
is not guaranteed or supported by the Company or any Guarantor, (y) does not
have a maturity date prior to the maturity date of the Senior Notes or any
mandatory amortization provisions more favorable to the lenders thereunder than
those con tained in the Senior Notes and (z) is on terms no more restrictive in
any material respect to Grand Parent or any Affiliate of Grand Parent than the
terms of this Agreement are to Grand Parent or the applicable Affiliate.
Section 10.15 Amendment, Etc., of Material Contracts. Grand Parent
--------------------------------------
and the Company shall not, and shall not permit any other Omnipoint Entity to,
cancel or terminate any Material Contract or consent to or accept any
cancellation or termination thereof, amend or otherwise modify any Material
Contract or give any consent, waiver or approval thereunder, waive any default
under or breach of any Material Contract, agree in any manner to any other
amendment, modification or change of any term or condition of any Material
Contract, or take any other action in connection with any Material Contract
that, in any such case,
55
could, at the time thereof, reasonably be expected to have a Material Adverse
Effect on any Omnipoint Note Party.
Section 10.16 Asset Swaps. Grand Parent and the Company shall not,
-----------
and shall not permit any other Omnipoint Entity to, enter into any agreement for
or effect the exchange of its telecommunication assets for the telecommunication
assets of another Person, unless (i) such Omnipoint Entity receives like
telecommunication assets of a fair market value at least equal to the
telecommunication assets it disposes of, as appraised by an independent third
party appraiser acceptable to the Required Holders, and (ii) no Default is in
existence or would result therefrom; provided that no such swap may be made of
any material License of any Omnipoint Note Party.
Section 10.17 Certain Restrictions. Grand Parent and the Company
--------------------
shall not, and shall not permit any other (i) Omnipoint Note Party to, enter
into any agreement (other than the Note Documents and the other agreements set
forth on Schedule 7.17 to the Loan Agreement) which restricts the ability of
such Omnipoint Note Party to enter into amendments, modifications or waivers of
the Note Documents or (ii) any Non-Party Subsidiary to, enter into any agreement
(other than the Note Documents and the other agreements set forth on Schedule
7.17 to the Loan Agreement) which contains (a) covenants exclusively with
respect to the Company which are more restrictive than the Senior Notes or (b)
any other provisions which prohibit or restrict the Company from making any
payment or prepayment under this Agreement or the Loan Agreement.
Section 10.18 No Additional Subsidiaries. The Company shall not form
--------------------------
or acquire any new Subsidiaries, other than the License Subsidiary.
Section 10.19 Financial Covenants.
-------------------
(a) Minimum Subscribers. The Company shall not have fewer
-------------------
Subscribers as of each of the dates indicated below than the number
indicated below opposite each such date:
Date Number of Subscribers
-------------------- ---------------------
[*] [*]
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56
[*] [*]
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57
(b) Minimum Revenues. The Company shall not permit its Revenues
----------------
for each of the periods indicated below (tested as of the end of the
relevant fiscal period) to be less than the amount indicated below opposite
each such period:
Period Revenues
------ ------------
[*] [*]
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58
Period Revenues
------ ------------
[*] [*]
(c) Leverage Ratio. (i) The Company shall not permit the ratio
---------------
of Total Covenant Indebtedness to Adjusted Annualized EBITDA to exceed at
any time, during any of the periods indicated below, the ratio set forth
below opposite such period:
Date Ratio
---- -----
[*] [*]
(ii) The Company shall not permit the ratio of Total Covenant Indebtedness to
EBITDA for the previous consecu tive twelve months to exceed at any time, during
any of the periods indicated below, the ratio set forth below opposite such
date:
Period Ratio
------ -----
[*] [*]
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59
Period Ratio
------ -----
[*] [*]
(d) Fixed Charge Ratio. The Company shall not permit the ratio
------------------
of EBITDA for the previous consecutive twelve months to Fixed Charges at
any time during any of the periods set forth below to be less than the
ratio set forth below with respect to such period.
Period Ratio
------ -----
[*] [*]
(e) Total Covenant Indebtedness to Book Capitalization. [*]
--------------------------------------------------
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11. EVENTS OF DEFAULT.
Section 11. Events of Default and Acceleration. Upon the occur
----------------------------------
rence and during the continuance of any of the following events (each an "Event
of Default"),
(a) the Company shall fail to pay (i) any principal of the Notes
when due or (ii) any fee payable pursuant to Section 15.1 or any interest
on the Notes or any other sum hereunder or under any of the other Note
Documents to which it is a party, in each such case, with respect to this
clause (ii), within three days after the date on which the same shall
become due and payable; or
(b) Grand Parent or the Company shall fail to comply with any of
the covenants contained in Section 7.1(h), 9.14 or Article 10; or
(c) any Omnipoint Note Party shall fail to perform any term,
covenant or agreement contained herein or in any of the other Note
Documents (other than those specified elsewhere in this Section 11.1) and
such failure shall continue for a period of 30 consecutive days after the
earlier of (i) written notice thereof from the Required Secured Parties or
(ii) actual knowledge thereof by such Omnipoint Note Party; or
(d) any representation or warranty of any Omnipoint Entity under
this Agreement or any of the other Note Documents or in any other document
or instrument delivered pursuant to or in connection with this Agreement or
any Note Document shall not be correct in any material respect upon the
date when made or deemed to have been made or repeated; or
(e) (i) any Significant Entity shall
(A) make an assignment for the benefit of creditors, or
(B) generally not pay its debts as such debts become due or
admit in writing its inability to
61
generally pay or generally fail to pay its debts as they mature or
become due, or
(C) petition or apply for the appoint ment of a trustee or
other custodian, liquidator or receiver for itself or for any
substantial part of its assets, or
(D) shall commence any case or other proceeding under any
bankruptcy, reorganization, ar rangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction
providing for the relief of debtors, now or hereafter in effect
(ii) any petition or application described in (i)(C) or (D) above
shall be filed or any such case or other proceeding shall be commenced
against any Significant Entity and (x) any Signif icant Entity shall
indicate its approval thereof, consent thereto or acquiescence therein, or
(y) such petition, application or proceeding is not dismissed within 45
days thereof, or (z) any of the actions sought in such petition,
application or proceeding (including the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or
(iii) any Significant Entity shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) any Significant Entity shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of any Indebt
edness that is outstanding in a principal amount of at least $10 million in
the aggregate (but excluding Indebtedness outstanding hereunder and
Indebted ness owed to the FCC), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Indebtedness of any
Significant Entity, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or otherwise to cause, or to permit the holder thereof to
cause, such Indebtedness
62
to mature; or any such Indebted ness of any Significant Entity shall be
declared to be due and payable or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased
or defeased, or an offer to prepay, redeem, purchase or defease such
Indebtedness shall be required to be made, other than (i) the redemption or
repurchase of not more than [*] of Senior Notes as permitted in the last
sentence of the definition of "Change of Control" in and (ii) from the Net
Cash Proceeds of asset sales, or equity or debt issuances, in each case
prior to the stated maturity thereof; or
(g) any final judgment or order for the payment of money in an
amount of [*] or more (excluding any portion thereof that an insurance
company of recognized standing and creditworthiness reasonably satisfactory
to the Required Holders has agreed to pay) shall be rendered against one or
more Significant Entities and shall not be paid, discharged or bonded and
either
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or
(ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) any of the Note Documents shall be cancelled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or
with the express prior written agreement, consent or approval of the
Holders, or any action at law, suit or in equity or other legal proceeding
to cancel, revoke or rescind any of the Note Documents shall be commenced
by or on behalf of any Omnipoint Entity, or any Guarantor shall assert that
its respective guaranty of the Obligations of the Company is invalid, or
any court or any other governmental or regulatory authority or agency of
competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of
the Note Documents is illegal, invalid or unenforceable in any material
respect in accordance with the terms thereof; or
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63
(i) with respect to any Guaranteed Pension Plan: an ERISA Event
shall have occurred and the Required Secured Creditors shall have
determined in their reasonable discretion that such event reasonably could
be expected to result in liability of Grand Parent or any of its
Subsidiaries to the PBGC or such Guaranteed Pension Plan in an aggregate
amount of $10,000,000 or more; or a trustee shall have been appointed by
the United States District Court to administer such Guaranteed Pension
Plan; or the PBGC shall have instituted proceedings to terminate such
Guaranteed Pension Plan or appointed a trustee to administer or liquidate
any plan; or
(j) any Environmental Claim shall have been asserted against any
Omnipoint Entity or any Environmental Affiliate thereof which, if
determined adversely, could reasonably be expected to have a Material
Adverse Effect, (ii) any release, emission, discharge or disposal of any
Material of Environmental Concern shall have occurred, and such event could
form the basis of an Environmental Claim against any Omnipoint Entity or
any Environmental Affiliate thereof which, if determined adversely, could
have a Material Adverse Effect, or (iii) any Omnipoint Entity or its
Environmental Affiliate shall have failed to obtain any Environmental
Permit necessary for the management, use, control, ownership, or operation
of its business, property or assets or any such Environmental Permit shall
be revoked, terminated, or otherwise cease to be in full force and effect,
in each case, if the existence of such condition could have a Material
Adverse Effect;
(k) the FCC or any other Governmental Body shall cancel, revoke
or suspend (i) any of the Company's Licenses for the New York PCS Network,
or any License held by the License Subsidiary, or fail to renew any such
License or (ii) any other License or group of Licenses held by Grand Parent
or any of its Significant Subsidiaries (other than "C" Block Licenses) the
loss of which could reasonably be expected to have a Material Adverse
Effect on Grand Parent and its Significant Subsidiaries, taken as a whole;
or
(l) the FCC or any other Governmental Body shall commence any
proceeding to cancel, revoke or suspend any of the Company's or the License
Subsidiary's Licenses for the New York PCS Network which proceeding for the
cancellation, revocation or suspension (i)
64
could reasonably be expected to have a Material Adverse Effect and (ii) has
not been stayed or enjoined by the Company or the License Subsidiary within
five business days after the commencement of any such proceeding; or
(m) the Company or the License Subsidiary shall fail to pay when
due amounts owing the FCC unless (i) such failure to pay can reasonably be
expected, in the sole reasonable judgment of the Required Secured
Creditors, not to result in any cancellation, revocation or suspension of
any of the Company's or the License Subsidiary's Licenses for the New York
PCS Network or (ii) the Company or the License Subsidiary has obtained a
stay or injunction against any action by the FCC to cancel, revoke or
suspend such License notwithstanding such failure to pay; or
(n) the Collateral Agent shall cease to have a valid and
perfected first-priority Lien on any Collateral (subject only to Permitted
Liens) securing the Obligations of the Company (or in the case of
Collateral pledged by Parent, License Subsidiary, OHI or OIT, each such
Person's respective guaranty of the Obligations of the Company) or the
Company, Parent, License Subsidiary, OHI or OIT shall so assert; or
(o) a Change of Control shall occur.
12. REMEDIES ON DEFAULT, ETC.
Section 12.1 Acceleration.
------------
(a) If an Event of Default with respect to the Company described
in paragraph (e) of Section 11 has occurred, all the Notes then outstanding
shall automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing,
the Required Secured Creditors may at any time at its or their option, by
notice or notices to the Company, declare all the Notes then outstanding to
be immediately due and payable.
(c) If any Event of Default described in paragraph (a) or (b) of
Section 11 has occurred and is continuing, any Holder at the time
outstanding affected by such Event of Default may at any time, at its or
65
their option, by notice or notices to the Company, declare all the Notes
held by it or them to be immediately due and payable.
(d) Upon any Notes becoming due and payable under this Section
12.1, whether automatically or by declaration, such Notes will forthwith
mature and the entire unpaid principal amount of such Notes, plus (x) all
-
accrued and unpaid interest thereon and (y) the Prepayment Premium
-
determined in respect of such principal amount (to the full extent
permitted by applicable law), shall all be immediately due and payable, in
each and every case without presentment, demand, protest or further notice,
all of which are hereby waived. The Company acknowledges, and the parties
hereto agree, that each holder of a Note has the right to maintain its
investment in the Notes free from repayment by the Company (except as
herein specifically provided for) and that the provision for payment of a
Prepayment Premium by the Company in the event that the Notes are prepaid
or are accelerated as a result of an Event of Default, is intended to
provide compensation for the deprivation of such right under such
circumstances.
Section 12.2 Other Remedies.
--------------
If any Default has occurred and is continuing, and irrespective of
whether any Notes have become or have been declared immediately due and payable
under Section 12.1, any Holder at the time outstanding may proceed to protect
and enforce the rights of such holder by an action at law, suit in equity or
other appropriate proceeding, whether for the specific performance of any
agreement contained herein or in any Note, or for an injunction against a
violation of any of the terms hereof or thereof, or in aid of the exercise of
any power granted hereby or thereby or by law or otherwise.
Section 12.3 Rescission.
----------
At any time after any Notes have been declared due and payable
pursuant to clause (b) or (c) of Section 12.1, the Required Secured Creditors,
by written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the Notes,
-
all principal of and Prepayment Premium, if any, on any Notes that are due and
payable and are unpaid other than by reason of such declaration, and all
interest on such overdue principal and Prepayment Premium, if any, and (to the
extent permitted by applicable law) any overdue interest in respect of the
Notes, at the
66
Default Rate, (b) all Defaults, other than non-payment of amounts that have
-
become due solely by reason of such declaration, have been cured or have been
waived pursuant to Section 17.1, and (c) no judgment or decree has been entered
-
for the payment of any monies due pursuant hereto or to the Notes. No rescission
and annulment under this Section 12.3 will extend to or affect any subsequent
Default or impair any right consequent thereon.
Section 12.4 No Waivers or Election of Remedies, Expenses, etc.
--------------------------------------------------
No course of dealing and no delay on the part of any Holder in
exercising any right, power or remedy shall operate as a waiver thereof or
otherwise prejudice such Holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon any holder thereof
shall be exclusive of any other right, power or remedy referred to herein or
therein or now or hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company under Section 15.1,
the Company will pay to the Holder on demand such further amount as shall be
sufficient to cover all costs and expenses of such Holder incurred in any
enforcement or collection under this Section 12, including, without limitation,
reasonable attorneys' fees, expenses and disbursements.
13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES; PAYING AGENT.
Section 13.1 Registration of Notes.
----------------------
The Paying Agent shall keep at its principal executive office a
register (the "Register") for the registration and registration of transfers of
Notes. The name and address of each holder of one or more Notes, each transfer
thereof and the name and address of each transferee of one or more Notes shall
be registered in such Register. Prior to due presentment for registration of
transfer, the Person in whose name any Note shall be registered shall be deemed
and treated as the owner and holder thereof for all purposes hereof, and the
Paying Agent shall not be affected by any notice or knowledge to the contrary.
The Paying Agent shall give to any holder of a Note that is an Institutional
Investor promptly upon request therefor, a complete and correct copy of the
names and addresses of all registered holders of Notes.
67
In the event that the Notes are in the form of Book-Entry Notes, a
Book-Entry Note may not be transferred as a whole except by the Clearing Agency
to a nominee of the Clearing Agency, by a nominee of the Clearing Agency to the
Clearing Agency or to another nominee of the Clearing Agency, or by the Clearing
Agency or any such nominee to a successor Clearing Agency or a nominee of such
successor Clearing Agency. A Book-Entry Note will be exchanged by the Company
for Definitive Notes only in accordance with Section 9.18.
Section 13.2 Transfer and Exchange of Notes.
------------------------------
Upon surrender of any Note at the principal executive office of the
Paying Agent for registration of transfer or exchange (and in the case of a
surrender for registration of transfer, duly endorsed or accompanied by a
written instrument of transfer duly executed by the registered holder of such
Note or his attorney duly authorized in writing and accompanied by the address
for notices of each transferee of such Note or part thereof), the Company shall
execute and deliver, at the Company's expense (except as provided below), one or
more new Notes (as requested by the holder thereof) in exchange therefor, in an
aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such
holder may request and shall be substantially in the form of Exhibit 1. Each
such new Note shall be dated and bear interest from the date to which interest
shall have been paid on the surrendered Note or dated the date of the
surrendered Note if no interest shall have been paid thereon. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes. Notes shall not be
transferred in denominations of less than $1,000,000, provided that if necessary
--------
to enable the registration of transfer by a holder of its entire holding of
Notes, one Note may be in a denomination of less than $1,000,000, provided
--------
further that any Note issued on the Closing Date in a denomination of less than
-------
$1,000,000 may be transferred. Any transferee, by its acceptance of a Note
registered in its name (or the name of its nominee), or by acceptance of a
beneficial interest therein, shall be deemed to have made the representations
set forth in Article 6 and to have agreed to be bound by the provisions of the
Intercreditor Agreement and the other Note Documents. Any transferor of a Note
or a beneficial interest therein shall notify any prospective purchaser that
such transferor may be relying on the exemption from Section 5 of the Securities
Act provided by Rule 144A. The Paying Agent shall forward to the Company any
Notes surrendered to it for transfer, exchange or payment.
68
Section 13.3 Replacement of Notes.
--------------------
Upon receipt by the Company of evidence reasonably satisfactory to it
of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from
such Institutional Investor of such ownership and such loss, theft, destruction
or mutilation), and
(i) in the case of loss, theft or destruction, of indemnity
reasonably satisfactory to it (provided that if the holder of such Note is,
--------
or is a nominee for, an original Purchaser or another holder of a Note with
a minimum net worth of at least $50,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory), or
(ii) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
Section 13.4 Exchange of Notes for Loans. Each Holder shall have the
---------------------------
right to exchange its Note for a Loan by following the procedures set forth in
this Section. Such Holder (an "Exchanging Holder") shall provide the Company,
the Paying Agent and the Administrative Agent not less than ten Business Days'
written notice of its intention to exchange its Note and the date of such
exchange (the "Exchange Date") and shall deliver therewith an executed Joinder
Agreement. On or prior to the Exchange Date, the Company and the Administrative
Agent shall each execute their respective counterparts to the Joinder Agreement
for delivery to the respective parties thereto. On the Exchange Date, the
Exchanging Holder shall surrender its Note at the principal executive office of
the Company (or in the event the Notes shall be Book-Entry Notes, provide the
Administrative Agent and the Company written evidence confirming delivery of
same to an agent designated by the Company through the Clearing Agency),
whereupon the Company shall provide notice of such exchange to the
Administrative Agent and the Paying Agent (together with a certified copy of the
cancelled Note if applicable). Upon such surrender, such Exchanging Holder
shall cease to be deemed a
69
"Holder" under this Agreement and, pursuant to the Joinder Agreement, shall (i)
be deemed to be a Lender under the Loan Agreement, (ii) have all the benefits
and obligations of a Lender under the Loan Agreement and (iii) be deemed to have
made a Loan to the Company (such Loan, an "Exchange Loan") in an aggregate
principal amount equal to the unpaid Obligations of the surrendered Note to such
Exchanging Holder. Each such Exchange Loan shall (i) accrue interest from the
date to which interest shall have been paid on the surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid thereon at the
rate provided for in the Loan Agreement and (ii) include a proportion of Tranche
A Loans and Tranche B Loans equal to the proportion of Tranche A Amounts and
Tranche B Amounts, respectively, of the surrendered Note. The Company may
require payment of a sum sufficient to cover any stamp tax or governmental
charge imposed in respect of any such transfer of Notes for Exchange Loans.
Section 13.5 Paying Agent.
------------
The Company shall appoint and at all times maintain a Paying Agent for
the Notes, which Paying Agent shall be reasonably acceptable to the Holders. The
Company hereby initially appoints IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company ("IBJ") as
Paying Agent, and IBJ hereby initially agrees so to act. IBJ (and its
successors and assigns) shall maintain an office or agency where Notes may be
presented for payment. The term "Paying Agent" includes any additional Paying
Agent.
The Company shall enter into an appropriate written agency agreement
with any Person not a party to this Agreement, which agreement shall implement
the provisions of this Agreement that relate to such Person. The Company shall
promptly notify the Paying Agent in writing of the name and address of any such
Person.
The Company shall appoint The Depository Trust Company ("DTC") to act
as depository with respect to the Book-Entry Notes.
The Company initially appoints the Paying Agent to act as securities
custodian with respect to the Book-Entry Notes.
The record date for interest payments shall be the 15/th/ day of the
month in which the payment is due.
70
Section 13.6 Paying Agent to Hold Assets in Trust.
------------------------------------
The Company shall require each Paying Agent to agree in writing that
such Paying Agent shall hold in trust for the benefit of Holders all assets held
by such Paying Agent for the payment of principal of, premium, if any, or
interest on, the Notes (whether such assets have been distributed to it by the
Company or any other obligor on the Notes), and shall notify the Holders in
writing of any Default in making any such payment. The Company at any time may
require the Paying Agent to distribute all assets held by it to the Holders and
account for any assets disbursed and the Holders may at any time during the
continuance of any payment Default, upon written request to the Paying Agent,
require the Paying Agent to distribute all assets held by it to the Holders and
to account for any assets distributed. Upon distribution to the Holders of all
assets that shall have been delivered by the Company to the Paying Agent, the
Paying Agent shall have no further liability for such assets.
Section 13.7 Determination of the Base Rate, LIBO Rate and the
-------------------------------------------------
Interest Rate. (a) Subject to clause (b), the Paying Agent shall, as soon as
-------------
practicable, but in no event later than 1:00 p.m., Eastern time, [*] Business
Days before the effectiveness of each LIBO Rate, cause to be determined such
LIBO Rate, the resulting Interest Rate based on such LIBO Rate, and notify each
Holder and the Company thereof by facsimile or other method acceptable to the
Paying Agent; provided that on the Closing Date the Paying Agent shall determine
-------------
the LIBO Rate for the initial interest period, based on the rate in effect two
Business Days before the Closing Date and inform the Company and each Holder of
such LIBO Rate for such interest period on the Closing Date. Each determination
of the LIBO Rate and the resulting Interest Rate shall be conclusive and binding
on the Company and each Holder in the absence of manifest error. In calculating
the Interest Rate, the Paying Agent may assume that the Applicable Margin is (i)
with respect to Base Rate, [*] per annum or (ii) with respect to LIBO Rate, [*]
per annum until otherwise notified in writing by the Company. In the event of
any conflict between the instructions given to the Paying Agent by the Required
Holders and the Company pursuant to Section 13.7, the Paying Agent shall be
entitled to follow the instructions of the Company.
(b) In the event that (i) the LIBOR Rate cannot be determined by the
Paying Agent or (ii) the Paying Agent receives written notice that any Holder is
unable lawfully for any reason whatsoever to hold its Note accruing interest at
the LIBO Rate plus the Applicable Margin, the Paying Agent shall determine the
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71
Interest Rate based on the sum of the Base Rate and the Applicable Margin and
shall promptly notify each Holder and the Company thereof provided in the case
of clause (ii), the foregoing shall only apply with respect to that portion of
the Indebtedness outstanding under the Notes held by the affected Holder.
Section 13.8 Nature of Duties. The Paying Agent shall have no
----------------
duties or responsibilities except those expressly set forth herein and in the
Note Documents. Neither the Paying Agent nor any of its officers, directors,
employees or agents shall be liable for any action taken or omitted by it as
such under the Note Documents or hereunder or in connection herewith or
therewith, unless caused by its or their gross negligence or willful misconduct.
The duties of the Paying Agent shall be mechanical and administrative in nature;
the Paying Agent shall not have by reason of the Note Documents a fiduciary
relationship in respect of any Holder or any Omnipoint Entity; and nothing in
the Note Documents, expressed or implied, is intended to or shall be so
construed as to impose upon the Paying Agent any obligations in respect of the
Note Documents except as expressly set forth herein or therein.
Section 13.9 Reliance. The Paying Agent shall be entitled to rely,
--------
and shall be fully protected in relying, upon any note, writing, resolution,
notice, statement, certificate, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
the proper Person or entity, and, with respect to all legal matters pertaining
to the Note Documents and its duties thereunder and hereunder, upon advice of
counsel selected by it.
Section 13.10 Compensation and Indemnification. (a) The Company
--------------------------------
covenants and agrees from time to time to pay, and the Paying Agent shall be
entitled to, compensation as agreed in writing between the Company and the
Paying Agent and the Company covenants and agrees to pay or reimburse the Paying
Agent upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Agreement except to the extent any such expense, disbursement or advance
may arise from the Paying Agent's own gross negligence or bad faith.
(b) To the extent the Paying Agent is not reimbursed and indemnified
by the Company in accordance with Section 15.1(c), the Holders will reimburse
and indemnify the Paying Agent, in proportion to their respective principal
amounts of Obligations, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
72
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Paying Agent in performing its duties hereunder or
under the Note Documents, or in any way relating to or arising out of the Note
Documents except for those resulting solely from the Collateral Agent's own
gross negligence or willful misconduct. The indemnities set forth in this
Section 13.10 shall survive the repayment of all Obligations.
Section 13.11 Duties and Responsibilities of Paying Agent. The
-------------------------------------------
Paying Agent undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Paying Agent.
Section 13.12 Resignation by the Paying Agent. The Paying Agent
-------------------------------
may resign from the performance of all its functions and duties hereunder and
under the Note Documents at any time by giving 30 Business Days' prior written
notice to the Company and the Holders. Such resignation shall take effect upon
the appointment of a successor Paying Agent by the Company pursuant to Section
13.5. If the Paying Agent consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to another corporation,
the successor corporation without any further act shall become the Paying Agent
hereunder. If a successor Paying Agent is not appointed within such 30 Business
Days after the giving of such notice, the Paying Agent may apply to a court of
competent jurisdiction for the appointment of a successor Paying Agent.
Section 13.13 Certain Other Matters Relating to the Paying Agent.
--------------------------------------------------
The Paying Agent shall be required to make payments only out of immediately
available funds supplied to it by the Company on a timely basis. The Paying
Agent shall not have any liability for interest on any moneys received by it
pursuant to this Agreement, and the Paying Agent shall not be obligated to
invest any funds held by it. The Paying Agent shall not be liable for any
action it takes or omits to take in good faith that it believes to be authorized
or within the rights or powers conferred upon it by this Agreement or the Notes.
The Paying Agent shall not be deemed to have notice or knowledge of any matter
unless a Responsible officer assigned to and working in the Paying Agent's
Corporate Trust Administration has actual knowledge thereof or unless written
notice thereof is received by the Paying Agent, Attention: Corporate Trust
Administration, and such notice references the Notes generally, the Company or
this Agreement. As used herein the term "Responsible Officer" means any officer
within the Corporate Trust Administration of the Paying Agent (or any successor
group of the Paying Agent)
73
or any other officer of the Paying Agent customarily performing functions
similar to those performed by any of the above designated officers. The Paying
Agent shall be entitled to consult with counsel satisfactory to it (including
counsel to the Company) and the advice or opinion of such counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance with the
advice or opinion of such counsel. Notwithstanding Section 17.1, no amendment to
this Agreement or the Notes affecting the rights or obligations of the Paying
Agent shall be effective as to the Paying Agent without the written consent of
the Paying Agent.
14. PAYMENTS ON NOTES.
Section 14.1 Deposit of Payment Amounts.
--------------------------
On or prior to the date of payment hereunder or pursuant to Article 8,
the Company shall deposit with the Paying Agent cash sufficient to pay the
repayment price of, including accrued and unpaid interest on, all Notes to be
repaid or prepaid on such date. The Paying Agent shall promptly return to the
Company any cash so deposited which is not required for that purpose upon the
written request of the Company. An installment of principal of or interest on
the Notes shall be considered paid on the date it is due if the Paying Agent
holds for the benefit of the Holders, on or before 11:00 a.m. New York City time
on that date, cash deposited and designated for and sufficient to pay the
installment.
Section 14.2 Home Office Payment.
-------------------
So long as any Purchaser or its nominee shall be the holder of any
Note (other than a Book-Entry Note), and notwithstanding anything contained in
Section 14.1 or in such Note to the contrary, the Company will pay or cause the
Paying Agent to pay all sums becoming due on such Note for principal, Prepayment
Premium, if any, and interest by the method and at the address specified for
such purpose below such Purchaser's name in Schedule A, or by such other method
or at such other address as such Purchaser shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Note or the making of any notation thereon, except that
upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, such Purchaser shall
surrender such Note for cancellation, reasonably promptly after any such
request, to the
74
Company at its principal executive office or at the place of payment most
recently designated by the Company pursuant to Section 14.1. Prior to any sale
or other disposition of any Note (other than a Book-Entry Note) held by any
Purchaser or its nominee such Purchaser will, at its election, either endorse
thereon the amount of principal paid thereon and the last date to which interest
has been paid thereon or surrender such Note to the Company in exchange for a
new Note or Notes pursuant to Section 13.2. The Company will afford the benefits
of this Section 14.2 to any Institutional Investor that is the direct or
indirect transferee of any Note purchased by any Purchaser under this Agreement
and that has made the same agreement relating to such Note as such Purchaser has
made in this Section 14.2. Notwithstanding the foregoing, the Company may
deliver any interest payment to the Paying Agent.
15. EXPENSES, ETC.
Section 15.1 Expenses.
--------
(a) The Company will pay on demand
(i) all costs and expenses of the Holders and the Paying Agent
incurred in connection with the administration, modification and
amendment of the Note Documents and any consents or waivers in
connection therewith (including (A) all search, filing and recording
fees and expenses and (B) the reasonable fees and expenses of counsel
for the Holders and the Paying Agent with respect to the Note
Documents, with respect to advising the Holders and the Paying Agent
as to their rights and responsibilities, or the perfection, protection
or preservation of rights or interests, under the Note Documents and
with respect to negotiations with the Omnipoint Note Parties or with
other creditors of the Omnipoint Note Parties in connection with the
Note Documents, or arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to
presenting claims in or otherwise participating in or monitoring any
bankruptcy, insolvency or other similar proceeding or negotiation
involving creditors' rights generally and any proceeding ancillary
thereto); provided, however, it is understood that the Company shall
not be liable for the costs and expenses incurred by
75
counsel to any of the Holders in connection with the preparation,
execution and delivery of the Note Documents, and
(ii) all costs and expenses of the Holders and the Paying Agent
in connection with the enforcement of the Note Documents, including in
any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including the reasonable fees and expenses of counsel for each Holder
and the Paying Agent with respect thereto).
(b) If the Company fails to pay when due any costs, expenses or other
amounts payable by it under any Note Document, including fees and expenses
of counsel and indemnities, such amount may be paid on behalf of the
Company by any Holder and the Paying Agent, in its sole discretion.
(c) The Company will indemnify each Holder and the Paying Agent and
the Paying Agent and its respective Affiliates and their officers,
directors, partners, employees, agents and advisors (each an "Indemnified
-----------
Party") and hold each Indemnified Party harmless from and against any and
-----
all claims, damages, losses, liabilities and expenses (including reasonable
fees and expenses of counsel including, with respect to each other Holder
and the Paying Agent, reasonable allocated costs and expenses of in-house
counsel and legal staff) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection
with
(i) the Notes, this Agreement and other Note Documents and the
enforcement thereof, any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of the Notes, or
(ii) the actual or alleged presence of Materials of Environmental
Concern on any property of the Company or any environmental proceeding
relating in any way to the Company,
except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of any investigation,
litigation or other proceeding
76
to which the indemnity in this Section 15.1(d) applies, the indemnity shall
be effective whether or not such investigation, litigation or proceeding is
brought by the Company, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise
a party thereto and whether or not the transactions contemplated hereby are
consummated. The Company also agrees not to assert any claim against any
other Holder, the Paying Agent, any of their Affiliates, or any of their
respective directors, officers, employees, attorneys and agents, on any
theory of liability, for special, indirect, consequential or punitive
damages arising out of or otherwise relating to the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use
of the proceeds of the Notes.
(d) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company contained
in this Section 15.1 shall survive the payment in full of principal and
interest hereunder and under the Notes and the termination of this
Agreement.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by the Purchasers of any Note or portion thereof or interest therein and the
payment of any Note, and may be relied upon by any subsequent holder of a Note,
regardless of any investigation made at any time by or on behalf of any
Purchaser or any other holder of a Note. All statements contained in any
certificate or other instrument delivered by or on behalf of the Company
pursuant to this Agreement shall be deemed representations and warranties of
the Company under this Agreement. Subject to the preceding sentence, this
Agreement and the Notes embody the entire agreement and understanding between
the Purchasers, the Paying Agent and the Company and supersede all prior
agreements and understandings relating to the subject matter hereof.
77
17. AMENDMENT AND WAIVER.
Section 17. Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement or the Notes, nor consent to any departure by the Company
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Secured Creditors (and the terms of effectiveness set
forth in such amendment, waiver or consent shall be satisfied), and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that no amendment, waiver or consent
--------
shall, unless in writing and signed by all the Holders and the Paying Agent, do
any of the following at any time:
(i) waive any of the conditions specified in Article 4;
(ii) change the definition of Required Secured Creditors (or,
without the vote of the Required Holders only, change the definition
of Required Holders)
(iii) release any Collateral, other than as contemplated by the
Note Documents or release any Guarantor from its Guaranty;
(iv) amend this Section 17.1;
(v) subject the Holders to any additional obligations;
(vi) amend or waive any mandatory prepayment provisions;
(vii) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder; or
(viii) postpone any date fixed for any payment of principal of,
or interest on, the Notes or any fees or other amounts payable
hereunder; and
Section 17.2 Notes held by Company, etc.
---------------------------
Solely for the purpose of determining whether the holders of the
requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this
Agreement or the Notes, or have directed the taking of any action provided
herein
78
or in the Notes to be taken upon the direction of the holders of a specified
percentage of the aggregate principal amount of Notes then outstanding, Notes
directly or indirectly owned by any Omnipoint Entity or any of its Affiliates
shall be deemed not to be outstanding.
18 NOTICES.
All notices and other communications provided for hereunder shall be in
writing (including telegraphic, telecopy or cable communication) and mailed,
telegraphed, telecopied, cabled or delivered,
(a) if to the Company, at:
Omnipoint Communications Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[*]
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Washington, DC 20036
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
[*]
(b) if to Grand Parent, at:
Omnipoint Corporation
Three Bethesda Metro Center
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[*]
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
79
with a copy to Piper & ▇▇▇▇▇▇▇, L.L.P. as set forth under clause
(a) above;
(c) if to OHI, OIT or the License Subsidiary, in care of
Omnipoint Corporation
Three Bethesda Metro Center
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[*]
(d) if to any Holder, as indicated in the Register; and
(e) if to IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company as Paying Agent
IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company
Corporate Trust Administration
11/th/ Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[*]
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telegraphed, telecopied or cabled, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or delivered to the cable company, respectively.
19 REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
-
executed, (b) documents received by any Purchaser at the Closing (except the
-
Notes themselves), and (c) financial statements, certificates and other
-
information previously or hereafter furnished to any Purchaser, may be
reproduced by such Purchaser by any photographic, photostatic, microfilm,
microcard, miniature
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
80
photographic or other similar process and such Purchaser may destroy any
original document so reproduced. The Company agrees and stipulates that, to the
extent permitted by applicable law, any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding
(whether or not the original is in existence and whether or not such
reproduction was made by the Purchaser in the regular course of business) and
any enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence. This Section 19 shall not prohibit the
Company or any other holder of Notes from contesting any such reproduction to
the same extent that it could contest the original, or from introducing evidence
to demonstrate the inaccuracy of any such reproduction.
20 CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means
information delivered to any Purchaser by or on behalf of the Company or any
Subsidiary in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by such
Purchaser as being confidential information of the Company or such Subsidiary,
provided that such term does not include information that (a) was publicly known
-------- -
or otherwise known to such Purchaser prior to the time of such disclosure, (b)
-
subsequently becomes publicly known through no act or omission by such Purchaser
or any person acting on such Purchaser's behalf, (c) otherwise becomes known to
-
such Purchaser other than through disclosure by the Company or any Subsidiary or
(d) constitutes financial statements delivered to such Purchaser under Section
-
7.1 that are otherwise publicly available. Each Purchaser will maintain the
confidentiality of such Confidential Information in accordance with procedures
adopted by such Purchaser in good faith to protect confidential information of
third parties delivered to such Purchaser; provided that any Purchaser may
--------
deliver or disclose Confidential Information to (i) its directors, officers,
-
employees, agents, attorneys and affiliates, (to the extent such disclosure
reasonably relates to the administration of the investment represented by its
Notes), (ii) its financial advisors and other professional advisors who agree to
--
hold confidential the Confidential Information substantially in accordance with
the terms of this Section 20, (iii) any other holder of any Note, (iv) any
--- --
Institutional Investor to which such Purchaser may sell or offer to sell such
Note or any part thereof or any participation therein (if such Person has agreed
in writing prior to its receipt of such Confidential Information to be bound by
the provisions of this Section 20), (v) any Person from
-
81
which such Purchaser may offer to purchase any security of the Company (if
such Person has agreed in writing prior to its receipt of such Confidential
Information to be bound by the provisions of this Section 20), (vi) any federal
--
or state regulatory authority having jurisdiction over any Purchaser, (vii) the
---
National Association of Insurance Commissioners or any similar organization, or
any nationally recognized rating agency that requires access to information
about such Purchaser's investment portfolio, or (viii) any other Person to which
----
such delivery or disclosure may be necessary or appropriate (w) to effect
-
compliance with any law, rule, regulation or order applicable to any Purchaser,
(x) in response to any subpoena or other legal process, (y) in connection with
- -
any litigation to which any Purchaser is a party or (z) if an Event of Default
-
has occurred and is continuing, to the extent any Purchaser may reasonably
determine such delivery and disclosure to be necessary or appropriate in the
enforcement or for the protection of the rights and remedies under its Notes and
this Agreement. Each holder of a Note, by its acceptance of a Note, will be
deemed to have agreed to be bound by and to be entitled to the benefits of this
Section 20 as though it were a party to this Agreement. On reasonable request by
the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or
requested by such holder (other than a holder that is a party to this Agreement
or its nominee), such holder will enter into an agreement with the Company
embodying the provisions of this Section 20.
21 SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its
Affiliates as the purchaser of the Notes that such Purchaser has agreed to
purchase hereunder, by written notice to the Company, which notice shall be
signed by both such Purchaser and such Affiliate, shall contain such Affiliate's
agreement to be bound by this Agreement and shall contain a confirmation by such
Affiliate of the accuracy with respect to it of the representations set forth in
Section 6. Upon receipt of such notice, wherever the word "Purchaser" is used
in this Agreement (other than in this Section 21), such word shall be deemed to
refer to such Affiliate in lieu of such Purchaser. In the event that such
Affiliate is so substituted as a Purchaser hereunder and such Affiliate
thereafter transfers to such Purchaser all of the Notes then held by such
Affiliate, upon receipt by the Company of notice of such transfer, wherever the
word "Purchaser" is used in this Agreement (other than in this Section 21), such
word shall no longer be deemed to refer to such Affiliate, but shall refer to
such Purchaser, and such Purchaser shall have all the rights of an original
holder of the Notes under this Agreement.
82
22 MISCELLANEOUS.
Section 22.1 Successors and Assigns. All covenants and other
----------------------
agreements contained in this Agreement by or on behalf of any of the parties
hereto bind and inure to the benefit of their respective successors and assigns
(including, without limitation, any subsequent holder of a Note) whether so
expressed or not.
Section 22.2 Payments Due on Non-Business Days. Anything in this
---------------------------------
Agreement or the Notes to the contrary notwithstanding, any payment of principal
of or Prepayment Premium or interest on any Note that is due on a date other
than a Business Day shall be made on the next succeeding Business Day without
including the additional days elapsed in the computation of the interest payable
on such next succeeding Business Day.
Section 22.3 Severability. Any provision of this Agreement that
------------
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render unenforceable such provision
in any other jurisdiction.
Section 22.4 Construction. Each covenant contained herein shall
------------
be construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
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.
Section 22.5 Counterparts. This Agreement may be executed in any
------------
number of counterparts, each of which shall be an original but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.
83
Section 22.6 Governing Law. This Agreement shall be construed and
-------------
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
Section 22.7 Grand Parent Not a Guarantor. The parties hereto
----------------------------
acknowledge and agree that Grand Parent shall be a party hereto solely for the
purposes of providing the covenants and representations expressly specified
herein, and shall not be a guarantor of the Obligations of any Loan Party under
the Loan Documents.
Section 22.8 Appointment of Collateral Agent. Each Holder hereby
-------------------------------
appoints and authorizes the Collateral Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Intercreditor
Agreement and the Collateral Documents as are delegated to the Collateral Agent
by the terms thereof, together with such powers and discretion as are reasonably
incidental thereto.
84
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
OMNIPOINT COMMUNICATIONS
INC., as Company
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President Finance
S-1
OMNIPOINT CORPORATION, as a party for the
purposes set forth in Section 22(g) of this
Agreement
By /s/
------------------------------------
Title:
S-2
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY, as Paying
Agent
By /s/
------------------------------------
Title: Vice President
S-3
DREYFUS PREMIER LIMITED
TERM HIGH INCOME FUND
By /s/
-------------------------------
Title:
S-4
KZH HOLDING CORPORATION III
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Authorized Agent
S-5
SUNAMERICA HIGH INCOME FUND
By /s/
----------------------------
Title: VP - Portfolio Mgr.
S-6
POLARIS SERIES TRUST HY
PORTFOLIO
By /s/
---------------------------------
Title: VP - Portfolio Mgr.
S-7
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By /s/
---------------------------------
Title:
S-8
CAPITAL RESEARCH AND MANAGEMENT COMPANY
on behalf of AMERICAN VARIABLE INSURANCE
SERIES HIGH YIELD BOND FUND
By /s/
Title:
S-9
CAPITAL RESEARCH AND MANAGEMENT COMPANY
on behalf of THE INCOME FUND OF AMERICA,
INC.
By /s/
------------------------------------
Title: Secretary
S-10
CAPITAL RESEARCH AND MANAGEMENT COMPANY
on behalf of THE BOND FUND OF AMERICA,
INC.
By
-----------------------------
Title: Secretary
S-11
ANCHOR PATHWAY FUND HIGH-YIELD BOND
SERIES
By /s/
---------------------------------
Title:
S-12
CAPITAL RESEARCH AND MANAGEMENT COMPANY
on behalf of AMERICAN HIGH-INCOME TRUST
By /s/
----------------------------------
Title: Secretary
S-13
▇▇▇▇▇▇ VARIABLE TRUST on behalf of
▇▇▇▇▇▇ VT HIGH YIELD FUND
By /s/
----------------------------------
Title: Vice President
S-14
▇▇▇▇▇▇ HIGH YIELD TRUST II
By /s/
-------------------------------
Title: Vice President
S-15
▇▇▇▇▇▇ HIGH YIELD TRUST
By /s/
-------------------------------
Title: Vice President
S-16
▇▇▇▇▇▇ HIGH YIELD ADVANTAGE FUND
By /s/
------------------------------------
Title: Vice President
S-17
▇▇▇▇▇▇ DIVERSIFIED INCOME TRUST
By /s/
----------------------------------
Title: Vice President
S-18
▇▇▇▇▇▇ MASTER INCOME TRUST
By /s/
-------------------------------------
Title: Vice President
S-19
▇▇▇▇▇▇ MASTER INTERMEDIATE INCOME TRUST
By /s/
----------------------------------
Title: Vice President
S-20
▇▇▇▇▇▇ PREMIER INCOME TRUST
By /s/
------------------------------------
Title: Vice President
S-21
IDS
By /s/
---------------------------------
Title:
S-22
SEABOARD PARTNERS, LP
By /s/
---------------------------------
Title: Managing Partner
S-23
SEABOARD FUND LIMITED
By /s/
----------------------------------
Title: Managing Partner
S-24
SEABOARD CAPITAL PARTNERS, LP
By /s/
-----------------------------------
Title: Managing Partner
S-25
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES
CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇ ▇▇▇▇▇▇▇
Managing Director
S-26
HIGH YIELD PORTFOLIO
By: /s/
------------------------------------
Title: Vice President
IDS BOND FUND, INC.
By: /s/
------------------------------------
Title: Vice President
IDS LIFE INCOME ADVANTAGE FUND
By: /s/
------------------------------------
Title: Vice President
Note Purchase Agreement