Exhibit 10.7
FIFTH AMENDMENT dated as of September 22, 1999 (this "Amendment"), to the
---------
Credit Agreement, dated as of February 3, 1998 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among TRITON PCS,
----------------
INC., a corporation organized under the laws of the State of Delaware (the
"Borrower"), TRITON PCS HOLDINGS, INC., a corporation organized under the laws
---------
of the State of Delaware ("Holdings"), the several banks and other financial
--------
institutions and entities from time to time parties thereto (the "Lenders"), and
-------
THE CHASE MANHATTAN BANK, as administrative agent (the "Administrative Agent")
--------------------
for the Lenders.
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to make
certain loans to the Borrower;
WHEREAS the Borrower has requested the Lenders (i) to make available credit
facilities to finance capital expenditures related to the construction of the
Network, the acquisition of Related Businesses, working capital needs of the
Borrower and subscriber acquisition costs and (ii) to amend and restate the
Credit Agreement as provided herein; and
WHEREAS the Lenders are willing to make the requested credit facilities
available and amend and restate the Credit Agreement on the terms and subject to
the conditions set forth in this Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used and not defined herein shall
--------------
have the meanings given to them in the Credit Agreement, as amended hereby.
2. Amendment to the Credit Agreement. The Credit Agreement is hereby
----------------------------------
amended and restated in its entirety in the form of Exhibit A attached hereto.
3. No Other Amendments, Waivers or Consents; Confirmation. Except as
-------------------------------------------------------
expressly amended, waived,
1
modified and supplemented hereby, the provisions of the Credit Agreement are and
shall remain in full force and effect.
4. Representations and Warranties. Each of Borrower and Holdings hereby
-------------------------------
represents and warrants to the Administrative Agent and the Lenders as of the
date hereof:
(a) After giving pro forma effect to this Amendment, no Default or Event of
Default has occurred and is continuing.
(b) The execution, delivery and performance by each of the Borrower and
Holdings of this Amendment have been duly authorized by all necessary corporate
and other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any person (including any governmental
agency) in order to be effective and enforceable. The Credit Agreement as
amended by this Amendment constitutes the legal, valid and binding obligation of
each of the Borrower and Holdings, enforceable against each in accordance with
its terms, subject only to the operation of the Bankruptcy Code and other
similar statutes for the benefit of debtors generally and to the application of
general equitable principles.
(c) After giving pro forma effect to this Amendment, all representations
and warranties of the Borrower and Holdings contained in the Credit Agreement
(other than representations or warranties expressly made only on and as of an
earlier date) are true and correct in all material respects as of the date
hereof.
5. Effectiveness. This Amendment shall become effective only upon the
--------------
satisfaction in full of the following conditions precedent:
(a) The Administrative Agent (or its counsel) shall have received from the
Required Lenders under the Original Credit Agreement and each Tranche C
Lender either (i) a counterpart of this Amendment signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed
2
signature page of this Amendment) that such party has signed a counterpart
of this Amendment.
(b) The Administrative Agent shall have received such written opinion or
opinions (addressed to the Administrative Agent and the Lenders and dated
the Amendment Effective Date) from counsel for the Borrower as the
Administrative Agent shall reasonably request. The Borrower hereby
requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a certificate of the
Secretary or Assistant Secretary of the Borrower and each Subsidiary Loan
Party dated the Amendment Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws, operating agreement or
partnership agreement of such Loan Party as in effect on the Amendment
Effective Date and at all times since a date prior to the date of the
resolutions described in clause (B) below, (B) that attached thereto is a
true and complete copy of resolutions duly adopted by the board of
directors (or equivalent governing body), members or partners of the
Borrower and each Subsidiary Loan Party authorizing the execution, delivery
and performance of the Loan Documents to which such person is a party and,
in the case of the Borrower, the borrowings hereunder, and that such
resolutions have not been modified, rescinded or amended and are in full
force and effect, and (C) as to the incumbency and specimen signature of
each officer or partner of the Borrower (or its general partner) and any
Subsidiary Loan Party executing any Loan Document on behalf of such Loan
Party; (ii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (i) above; and (iii) such other documents as the
Lenders or Cravath, Swaine & ▇▇▇▇▇, counsel for the Administrative Agent,
may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated the
Amendment Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming
3
compliance with the conditions set forth in paragraphs (a) and (b) of
Section 4.02 of the Credit Agreement.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Amendment Effective Date,
including (i) for the account of each Lender under the Original Credit
Agreement that signs this Amendment, an amendment fee equal to 0.25% of the
aggregate amount of the outstanding Loans and unused Commitments of such
Lender under the Original Credit Agreement and (ii) to the extent invoiced,
reimbursement or payment of all out-of-pocket expenses required to be
reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.
(f) The Administrative Agent shall have received from the Borrower
conformed copies, certified and true and complete, of the Tower Sale Asset
Purchase Agreement and the Tower Sale Asset Purchase Agreement shall have
been duly executed and delivered on behalf of each party thereto, shall
have been duly authorized thereby, and shall constitute a legal, valid and
binding obligation of such party, enforceable against such party in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, and general equitable principles
(whether considered in a proceeding in equity or at law); and the Borrower
shall have delivered to the Lenders a certificate of a Responsible Officer
as to the accuracy of the foregoing.
(g) Each of the parties thereto shall have executed and delivered to the
Administrative Agent consents to assignment ("Consents to Assignment") to
the Administrative Agent for the benefit of the Secured Parties, in form
and substance satisfactory to the Administrative Agent, with respect to the
Tower Sale Asset Purchase Agreement.
(h) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions
shall have
4
been obtained, and all applicable waiting periods and appeal periods shall
have expired.
(i) There shall have been no material adverse change in the business,
assets, results of operations, properties, prospects or financial condition
of the Borrower and the Subsidiaries, taken as a whole, or of Holdings
since December 31, 1998.
(j) Holdings and the Borrower shall be in Pro Forma Compliance.
6. Expenses. The Borrower agrees to reimburse the Administrative Agent
---------
for its reasonable out-of-pocket expenses in connection with this Amendment,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
▇▇▇▇▇, counsel for the Administrative Agent.
7. Governing Law; Counterparts. (a) This Amendment and the rights and
----------------------------
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
(b) This Amendment may be executed by one or more of the parties to this
Amendment on any number of separate counterparts, and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Amendment may be delivered by facsimile transmission of the relevant signature
pages hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
TRITON PCS, INC.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President of
Finance and Treasurer
5
TRITON PCS HOLDINGS, INC.,
by
----------------------
Name:
Title:
TRITON MANAGEMENT COMPANY, INC.,
by
----------------------
Name:
Title:
TRITON PCS HOLDINGS COMPANY L.L.C.,
by TRITON MANAGEMENT COMPANY, INC., its manager,
by
----------------------
Name:
Title:
TRITON PCS INVESTMENT COMPANY L.L.C.,
by TRITON MANAGEMENT COMPANY, INC., its manager,
by
----------------------
Name:
Title:
TRITON PCS OPERATING COMPANY L.L.C,
by TRITON MANAGEMENT COMPANY, INC., its manager,
by
----------------------
Name:
Title:
6
TRITON PCS LICENSE COMPANY L.L.C.,
by TRITON MANAGEMENT COMPANY, INC., its manager,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President of
Finance and Treasurer
TRITON PCS PROPERTY COMPANY L.L.C.,
by TRITON MANAGEMENT COMPANY, INC., its manager,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President of
Finance and Treasurer
TRITON PCS EQUIPMENT COMPANY L.L.C.,
by TRITON MANAGEMENT COMPANY, INC., its manager,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President of
Finance and Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent,
by /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
7
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
TORONTO DOMINION BANK (TEXAS),
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ABN AMRO BANK N.V.,
by /s/ ▇▇▇▇▇▇▇ O'▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ O'▇. ▇▇▇▇▇
Title: Group Vice
President
by /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
BALANCED HIGH-YIELD FUND I LTD.,
by BHF (USA) CAPITAL CORPORATION
acting as Attorney-in-fact,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:Assistant Vice
President
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice
President
BANKBOSTON, N.A.,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
8
BANK OF HAWAII,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice
President
THE BANK OF NOVA SCOTIA,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
BARCLAYS BANK PLC,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇- ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇ ▇▇▇▇ BRANCH,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
by /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Associate Director
BHF (USA) CAPITAL CORPORATION,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice
President
CIBC INC.,
by /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Executive Director,
CIBC World
Markets Corp.
As Agent
THE CIT GROUP/EQUIPMENT FINANCING, INC.,
by /s/ ▇.▇. ▇▇▇▇▇▇
----------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
10
CREDIT LYONNAIS, NEW YORK BRANCH,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
CRESTAR BANK,
by /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
DE NATIONALE INVESTERINGSBANK N.V.,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice
President
by /s/ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇. ▇▇▇▇▇▇
Title: Legal Counsel
FIRST UNION NATIONAL BANK,
by /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LIMITED
New York Branch,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President and
Manager
11
GENERAL ELECTRIC CAPITAL CORPORATION,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager-Operations
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized
Signatory
▇▇▇▇▇▇ BANK PLC,
by /s/ ▇▇▇▇▇▇▇ ▇. Lansown
----------------------
Name: ▇▇▇▇▇▇▇ ▇. Lansown
Title: Senior Vice
President
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice
President
MOUNTAIN CAPITAL CLO I, LTD.,
by /s/ J. ▇▇▇▇▇ ▇▇▇▇▇
----------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
PNC BANK, NATIONAL ASSOCIATION,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
12
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL",
New York Branch,
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
by /s/ Pieter Koddle
----------------------
Name: Pieter Koddle
Title: Senior Vice
President
UNION BANK OF CALIFORNIA, N.A.,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice
President
U.S. BANK NATIONAL ASSOCIATION,
by /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice
President
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
13
▇▇▇ ▇▇▇▇▇▇ CLO II, LIMITED,
By: ▇▇▇ ▇▇▇▇▇▇ Management Inc., as
Collateral Manager
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
ELC (CAYMAN) LTD. 1999-II
by /s/ ▇.▇. ▇▇▇▇▇▇▇▇ III
----------------------
Name: ▇.▇. ▇▇▇▇▇▇▇▇ III
Title: Managing Director
14
Exhibit A
================================================================================
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
February 3, 1998
as amended and restated as of
September 22, 1999
among
TRITON PCS, INC.
TRITON PCS HOLDINGS, INC.
The Lenders Party Hereto
THE CHASE MANHATTAN BANK,
as Administrative Agent,
CHASE SECURITIES INC.,
as Sole Book Manager and Co-Lead Arranger,
TORONTO DOMINION SECURITIES (USA) INC.,
as Co-Lead Arranger and Syndication Agent, and
▇. ▇. ▇▇▇▇▇▇ SECURITIES INC.
as Documentation Agent
___________________________
================================================================================
15
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms............................ 1
SECTION 1.02. Classification of Loans and Borrowings... 42
SECTION 1.03. Terms Generally.......................... 42
SECTION 1.04. Accounting Terms; GAAP................... 42
ARTICLE II
The Credits
------------
SECTION 2.01. Commitments.............................. 43
SECTION 2.02. Loans and Borrowings..................... 44
SECTION 2.03. Requests for Borrowings.................. 45
SECTION 2.04. Funding of Borrowings.................... 46
SECTION 2.05. Interest Elections....................... 47
SECTION 2.06. Termination and Optional Reduction of
Commitments............................. 48
SECTION 2.07. Repayment of Loans; Evidence of Debt..... 49
SECTION 2.08. Automatic Revolving Commitment
Reductions; Amortization of Term Loans.. 50
SECTION 2.09. Prepayment of Loans...................... 52
SECTION 2.10. Fees..................................... 55
SECTION 2.11. Interest................................. 56
SECTION 2.12. Alternate Rate of Interest............... 57
SECTION 2.13. Increased Costs.......................... 58
SECTION 2.14. Break Funding Payments................... 59
SECTION 2.15. Taxes.................................... 60
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Setoffs...................... 62
SECTION 2.17. Mitigation Obligations; Replacement of
Lenders................................. 64
SECTION 2.18. Letters of Credit........................ 65
SECTION 2.19. Incremental Term Loans................... 71
SECTION 2.20. Swingline Loans.......................... 72
17
ARTICLE III
Representations and Warranties
------------------------------
SECTION 3.01. Organization; Powers....................... 73
SECTION 3.02. Authorization; Enforceability.............. 73
SECTION 3.03. Governmental Approvals; No Conflicts....... 73
SECTION 3.04. Financial Condition; No Material
Adverse Change............................ 74
SECTION 3.05. Properties................................. 75
SECTION 3.06. Litigation and Environmental Matters....... 75
SECTION 3.07. Compliance with Laws and Agreements........ 76
SECTION 3.08. Investment and Holding Company Status...... 76
SECTION 3.09. Taxes...................................... 76
SECTION 3.10. ERISA...................................... 77
SECTION 3.11. Disclosure................................. 77
SECTION 3.12. Subsidiaries; Parents...................... 77
SECTION 3.13. Absence of Non-Permitted Obligations....... 78
SECTION 3.14. Licenses................................... 79
SECTION 3.15. No Burdensome Restrictions................. 79
SECTION 3.16. [Intentionally Omitted].................... 79
SECTION 3.17. Flood Insurance............................ 79
SECTION 3.18. Insurance.................................. 79
SECTION 3.19. Labor Matters.............................. 79
SECTION 3.20. Solvency................................... 80
SECTION 3.21. FCC Compliance............................. 80
SECTION 3.22. Security Documents......................... 81
SECTION 3.23. Copyrights, Trademarks, etc................ 82
SECTION 3.24. Federal Regulations........................ 82
SECTION 3.25. Assets and Business of Holdings............ 82
SECTION 3.26. Year 2000.................................. 83
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date............................. 83
SECTION 4.02. Each Credit Event.......................... 90
ARTICLE V
Affirmative Covenants
-----------------------
SECTION 5.01. Financial Statements and Other
Information............................... 91
SECTION 5.02. Notices of Material Events................. 94
SECTION 5.03. Information Regarding Collateral........... 94
SECTION 5.04. Existence; Conduct of Business............. 95
SECTION 5.05. Payment of Obligations..................... 95
18
SECTION 5.06. Maintenance of Properties.................. 96
SECTION 5.07. Insurance.................................. 96
SECTION 5.08. Casualty and Condemnation.................. 96
SECTION 5.09. Books and Records; Inspection and
Audit Rights.............................. 97
SECTION 5.10. Compliance with Laws....................... 97
SECTION 5.11. Use of Proceeds............................ 97
SECTION 5.12. Additional Subsidiaries.................... 97
SECTION 5.13. Further Assurances......................... 98
SECTION 5.14. Interest Rate Protection................... 99
SECTION 5.15. License Drop Down.......................... 100
SECTION 5.16. Business of Holdings; Immediate
Contributions to the Borrower............. 100
SECTION 5.17. Execution of Other Agreements.............. 100
SECTION 5.18. Notification of Acquisition of
Additional Licenses....................... 100
ARTICLE VI
Negative Covenants
------------------
SECTION 6.01. Indebtedness; Certain Equity Securities.... 101
SECTION 6.02. Liens...................................... 103
SECTION 6.03. Sale and Lease-Back Transactions........... 105
SECTION 6.04. Fundamental Changes........................ 105
SECTION 6.05. Investments, Loans, Advances, Guarantees
and Acquisitions.......................... 105
SECTION 6.06. Asset Sales................................ 108
SECTION 6.07. Hedging Agreements......................... 108
SECTION 6.08. Restricted Payments; Certain Payments
of Indebtedness........................... 109
SECTION 6.09. Transactions with Affiliates............... 110
SECTION 6.10. Restrictive Agreements..................... 110
SECTION 6.11. Amendment of Material Documents............ 111
SECTION 6.12. Financial Covenants........................ 111
SECTION 6.13. Liabilities of Special Purpose
Subsidiaries.............................. 115
ARTICLE VII
Events of Default
-----------------
ARTICLE VIII
The Administrative Agent
------------------------
19
ARTICLE IX
Miscellaneous
---------------
SECTION 9.01. Notices.................................. 123
SECTION 9.02. Waivers; Amendments...................... 124
SECTION 9.03. Expenses; Indemnity; Damage Waiver....... 126
SECTION 9.04. Successors and Assigns................... 128
SECTION 9.05. Survival................................. 131
SECTION 9.06. Counterparts; Integration;
Effectiveness........................... 131
SECTION 9.07. Severability............................. 132
SECTION 9.08. Right of Setoff.......................... 132
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process...................... 132
SECTION 9.10. WAIVER OF JURY TRIAL..................... 133
SECTION 9.11. Headings................................. 134
SECTION 9.12. Confidentiality.......................... 134
SCHEDULES:
---------
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Litigation and Environmental Matters
Schedule 3.14 -- Network Area
Schedule 3.22 -- Mortgaged Property
Schedule 5.01(i)-- Revenue and System Build Information
Schedule 6.02 -- Existing Liens
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
--------
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Borrower's Counsel
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Pledge Agreement
Exhibit E -- Form of Security Agreement
Exhibit F -- Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit G -- Form of AW License Exchange and Acquisition
Agreement
20
AMENDED AND RESTATED CREDIT AGREEMENT (this "Agreement")
dated as of February 3, 1998, as amended and restated as of
September 22, 1999 among TRITON PCS, INC., a Delaware corporation
(the "Borrower"), TRITON PCS HOLDINGS, INC. ("Holdings"), the
LENDERS (as defined in Article I) party hereto, and THE CHASE
MANHATTAN BANK, as Administrative Agent.
WHEREAS the Borrower intends to construct and operate the Network (as
defined in Article I);
WHEREAS the Borrower has requested the Lenders (i) to make available
credit facilities to finance capital expenditures related to the construction of
the Network, the acquisition of Related Businesses, working capital needs of the
Borrower and subscriber acquisition costs and (ii) to amend and restate the
Original Credit Agreement (as defined in Article I) as provided herein; and
WHEREAS the Lenders are willing to make the requested credit
facilities available and amend and restate the Original Credit Agreement on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Agreement, the
--------------
following terms have the meanings specified below:
"ABC" means ABC Wireless, L.L.C., a Delaware limited liability
---
company.
"ABR", when used in reference to any Loan or Borrowing, refers to
---
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
21
"Additional Lender" shall have the meaning assigned thereto in Section
-----------------
2.19.
"Additional Capital Contributions" means (i) the issuance by Holdings
--------------------------------
of $50,000,000 of Common Stock or Series C or D Preferred Stock to Holdings'
existing investors or other investors reasonably acceptable to the
Administrative Agent and (ii) the issuance by Holdings of $25,000,000 of Common
Stock, Series E Preferred Stock or Deeply Subordinated Debt to a Qualified
Vendor or other investors reasonably acceptable to the Administrative Agent, in
each case for cash pursuant to the Additional Capital Contribution Commitments.
"Additional Capital Contribution Commitments" means unconditional,
-------------------------------------------
irrevocable commitments from Holdings' existing investors, a Qualified Vendor or
other investors reasonably acceptable to the Administrative Agent to purchase
additional shares of Common Stock or Series C, D or E Preferred Stock or Deeply
Subordinated Debt for cash in an aggregate amount of $75,000,000, the proceeds
of which will, on receipt by Holdings, be immediately contributed to the
Borrower; provided, however, that the Additional Capital Contribution
-------- -------
Commitments may be terminable upon receipt by the Borrower of $75,000,000 of Net
Proceeds from an initial public offering of equity securities of Holdings.
"Adjusted EBITDA" means for any fiscal period, the sum of (a)
---------------
Consolidated EBITDA for such period plus (b) the aggregate amount deducted in
----
determining Consolidated Net Income for such period in respect of sales,
marketing and advertising expenses and consumer-related equipment subsidy
expenses.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
------------------
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
--------------------
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
----------------------------
in the form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
---------
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified and with
22
respect to any Lender that is a fund that invests in commercial loans, any other
fund that invests in commercial loans and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Aggregate Service Revenue" means for any period, total revenues less
-------------------------
revenues from equipment sales of the Borrower and the Subsidiaries.
"Alternate Base Rate" means, for any day, a rate per annum equal to
-------------------
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Amendment Execution Date" means September 22, 1999, the date of
-------------------------
execution of the amendment (the "Amendment") to the Original Credit Agreement
that amends and restates such agreement.
"Amendment Effective Date" means the date on which the conditions
------------------------
specified in Section 5 of the Amendment are satisfied (or waived).
"Annualized Adjusted EBITDA" means for the period ending on the last
---------------------------
day of any fiscal quarter, the product of (a) Adjusted EBITDA for the two
consecutive fiscal quarters ending on such last day, multiplied by (b) two.
"Annualized EBITDA" means for the period ending on the last day of any
-----------------
fiscal quarter, the product of (a) Consolidated EBITDA for the two consecutive
fiscal quarters ending on such last day, multiplied by (b) two.
"Applicable Margin" means, for any day (a) prior to the Amendment
-----------------
Execution Date, the "Applicable Rate" as defined in the Original Credit
Agreement and (b) on and after the Amendment Execution Date, (i) with respect to
any Tranche B Term Loan, the applicable Tranche B Rate, or (ii) with respect to
a Revolving Loan, a Tranche A Term Loan or a Tranche C Term Loan, 1.50% per
annum, in the case of an ABR Loan, or 2.50% per annum, in the case of a
Eurodollar Loan; provided, that after the earlier of (x) the date that is twelve
--------
months subsequent to the Amendment Effective Date and (y) the date the Borrower
delivers financial statements pursuant to Sections 5.01(a) or (b) of this
Agreement that demonstrate positive Consolidated EBITDA for the fiscal quarter
then most recently ended, the applicable rate per annum for a Revolving Loan, a
Tranche A Term Loan or a
23
Tranche C Term Loan shall be based upon the Leverage Ratio as of the most recent
determination date as set forth below under the caption "ABR Spread" or
"Eurodollar Spread", as the case may be; provided further, that unless
-------- -------
Consolidated EBITDA for the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01 is positive, the
"Applicable Margin" for purposes of clause (b)(ii) shall be the applicable rate
per annum set forth below in Category 1:
ABR EURODOLLAR
--- ----------
LEVERAGE RATIO: Spread Spread
-------------- ------ ------
Category 1
----------
Not Applicable 1.250% 2.250%
--------------------------------------------------------------------------------
Category 2
----------
Greater than or equal to 10.0 to 1.00 1.000% 2.000%
--------------------------------------------------------------------------------
Category 3
----------
Greater than or equal to 9.0 to 1.00 but less
than 10.0 to 1.00 0.875% 1.875%
--------------------------------------------------------------------------------
Category 4
----------
Greater than or equal to 8.0 to 1.00 but less
than 9.0 to 1.00 0.750% 1.750%
--------------------------------------------------------------------------------
Category 5
----------
Greater than or equal to 6.0 to 1.00 but less
than 8.0 to 1.00 0.500% 1.500%
--------------------------------------------------------------------------------
Category 6
----------
Greater than or equal to 5.0 to 1.00 but less
than 6.0 to 1.00 0.250% 1.250%
--------------------------------------------------------------------------------
Category 7
----------
Less than 5.0 to 1.00 ---- 1.000%
--------------------------------------------------------------------------------
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Margin
resulting from a change in the
24
Leverage Ratio shall be effective during the period commencing on and including
the date of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding
the effective date of the next such change; provided that the Leverage Ratio
--------
shall be deemed to be in Category 1 (A) at any time that an Event of Default has
occurred and is continuing or (B) if the Borrower fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.
"Applicable Percentage" means, with respect to any Revolving Lender,
---------------------
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means with respect to the commitment fees payable
---------------
hereunder, (a) for any day prior to the Amendment Execution Date, the
"Applicable Rate" as defined in the Original Credit Agreement and (b) for any
day on or after the Amendment Execution Date, the applicable rate per annum set
forth below based upon the percentage of the total Revolving Commitments,
Tranche A Commitments, and Tranche C Commitments which are used on such date:
Drawn Commitments as a Percentage of the Total
Revolving Commitments, Tranche A
Commitments, and Tranche C Commitments Commitment Fee
--------------------------------------------------------------------------------
Greater than or equal to 50% 0.50%
--------------------------------------------------------------------------------
Less than 50% 0.75%
--------------------------------------------------------------------------------
; provided, that from and after the earlier of (i) the date that is twelve
-------- ----
months subsequent to the Amendment Effective Date and (ii) the date the Borrower
delivers financial statements pursuant to Sections 5.01(a) or (b) of this
Agreement that demonstrate positive Consolidated EBITDA for the fiscal quarter
then most recently ended, the Applicable Rate shall be based upon the Leverage
Ratio as of the most recent determination date; provided further, that unless
-------- -------
Consolidated EBITDA for the most recent fiscal quarter for which financial
statements have been delivered pursuant to
25
Section 5.01 is positive, the Applicable Rate shall be the applicable rate per
annum set forth below in Category 1:
Commitment
Leverage Ratio: Fee Rate
-------------------------------------------------------------------------------
Category 1
----------
Not Applicable 0.50%
-------------------------------------------------------------------------------
Category 2
----------
Greater than or equal to 10.0 to 1 0.50%
-------------------------------------------------------------------------------
Category 3
----------
Less than 10.0 to 1 0.375%
-------------------------------------------------------------------------------
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided
--------
that the Leverage Ratio shall be deemed to be in Category 1 (A) at any time that
an Event of Default has occurred and is continuing or (B) if the Borrower fails
to deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), during the period from the expiration of the
time for delivery thereof until such consolidated financial statements are
delivered.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AW" means AT&T Wireless PCS, Inc.
--
"AW License Exchange and Acquisition Agreement" means the License
---------------------------------------------
Exchange and Acquisition Agreement executed by AW, Holdings and Triton PCS
License Company, L.L.C. dated as of July 13, 1999.
26
"AW Licenses" has the meaning set forth in the definition of Initial
-----------
Equity Contributions.
"AW Pops Swap" means the acquisition by one or more of the Borrower
------------
and the Subsidiaries of 20 MHz of the 30 MHz of PCS licenses owned by AW
covering the Savannah, Georgia, BTA and the Athens, Georgia BTA (collectively,
the "AW Swap Licenses"), in exchange for the 20 MHz of PCS licenses owned by the
Borrower and its Subsidiaries covering the Cumberland, Maryland BTA and the
Hagerstown, Maryland BTA (collectively, the "Exchanged Licenses") and the
issuance to AW of approximately 53,881.64 shares of Series A Preferred Stock and
approximately 42,738.98 shares of Series D Preferred Stock in connection
therewith in accordance with the terms of the AW License Exchange and
Acquisition Agreement and in connection therewith the issuance of approximately
4,748.78 shares of common stock of Holdings to the current holders of common
stock.
"Bidding Entity" means Lafayette Communications Company, L.L.C., a
--------------
Delaware limited liability company.
"Bidding Entity Note" means a promissory note of the Bidding Entity
-------------------
payable to the Borrower or a Wholly Owned Subsidiary in an amount equal to the
funds invested in the Bidding Entity by the Borrower and any Subsidiary dated as
of March 1, 1999.
"Board" means the Board of Governors of the Federal Reserve System of
-----
the United States of America.
"Borrower" means Triton PCS, Inc., a Delaware corporation.
--------
"Borrowing" means (a) Loans of the same Class and Type, made,
---------
converted or continued on the same date and, in the case of Eurodollar Loans as
to which a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing in
-----------------
accordance with Section 2.03.
"BTA" means a Basic Trading Area, as defined in 47 C.F.R. (S)24.202.
---
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
--------
the term "Business Day" shall also exclude any day on which banks are not open
------------
for dealings in dollar deposits in the London interbank market.
27
"Capital Expenditures" means, for any period, without duplication, (a)
--------------------
the capital expenditures of the Borrower and its consolidated Subsidiaries that
are (or would be) set forth in a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP, plus (b) the capital
expenditures of the Borrower and its consolidated Subsidiaries made but not yet
paid for included in accounts payable at the end of such period, minus (c) any
capital expenditures shown on such statement of cash flows of the Borrower for
such period to the extent included in accounts payable at the end of any prior
period, plus (d) Capital Lease Obligations incurred by the Borrower and its
consolidated Subsidiaries during such period (other than Capital Lease
Obligations permitted by Section 6.01(a)(viii)), minus (e) any capital
expenditures made with casualty or other insurance proceeds to repair, restore
or replace lost or damaged property or assets within 270 days of such loss or
damage, minus (f) any capital expenditures that represent the purchase price of
the acquisition of a business or business unit permitted by Section 6.05.
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations or
-------------
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase or subscribe for any of
the foregoing, or any warrants, rights or options to purchase or subscribe for
any such warrants, rights or options.
"Cash Interest Expense" means, for any period, (a) Consolidated
---------------------
Interest Expense for such period, minus (b) the aggregate amount of pay-in-kind,
accreted or other Consolidated Interest Expense for such period not involving
any payment in cash.
"Change in Control" means (a) the sale or other disposition by AW of
-----------------
any shares of the Series C Preferred Stock, Series D Preferred Stock or Common
Stock of Holdings or of any Common Stock of the Borrower prior to February 4,
2001 (provided that the conversion of any such shares, in accordance with their
terms, into other shares of Capital
28
Stock of Holdings shall not constitute a disposition of such shares so long as
AW retains the shares into which such shares are converted); (b) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any Person
or group (within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in effect on the
date hereof) other than Holdings or Persons (or Affiliates thereof) owning
capital stock of Holdings on the Effective Date, of shares representing more
than 30% of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of either the Borrower or Holdings; (c) occupation of
a majority of the seats (other than vacant seats) on the board of directors of
Holdings or the Borrower by Persons who were not (i) nominated by the board of
directors of Holdings (in the case of Holdings' board) or the Borrower (in the
case of the Borrowers' board) (ii) appointed by directors so nominated or (iii)
in the case of Holdings, appointed by shareholders of Holdings who are
shareholders of Holdings on the Effective Date; or (d) the acquisition of direct
or indirect Control of the Borrower or Holdings by any Person or group other
than Holdings or Persons (or Affiliates thereof) owning capital stock of
Holdings on the date hereof; provided, however, that neither (A) the sale by AW
-------- -------
of all or any of its equity interest in Holdings subsequent to February 4, 2001,
nor (B) the sale by Holdings or the Borrower of newly issued Common Stock in a
public offering, shall constitute a Change of Control so long as no event
described in clause (b) above occurs as a result thereof.
"Change in Law" means (a) the adoption of any law, rule or regulation
-------------
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or Issuing Bank
(or, for purposes of Section 2.13(b), by any lending office of such Lender or by
such Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
-----
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Incremental
Term Loans, if any, or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Commitment, Tranche
A Commitment, Tranche B Commitment, Tranche C Commitment or Incremental
Commitment, if any.
29
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
"Collateral" means any and all "Collateral", as defined in any
----------
applicable Security Document and shall also include the Mortgaged Properties.
"Committed Equity" means irrevocable binding commitments (i) to
----------------
purchase stock of Holdings pursuant to the Securities Purchase Agreement or (ii)
to make the Additional Capital Contributions; provided that, the Additional
--------
Capital Contributions shall be considered Committed Equity only to the extent
that final, definitive documentation with respect thereto has been executed on
terms satisfactory to the Administrative Agent.
"Commitment" means a Revolving Commitment, Tranche A Commitment,
----------
Tranche B Commitment, Tranche C Commitment or Incremental Commitment, if any, or
any combination thereof (as the context requires).
"Common Stock" means the Common Stock, par value $.01 per share, of
------------
Holdings.
"Communications Act" means the Communications Act of 1934, and any
------------------
similar or successor federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same may be
in effect from time to time.
"Consents to Assignment" has the meaning set forth in subsection
----------------------
4.01(r).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
-------------------
plus, to the extent deducted in computing such Consolidated Net Income, the sum
of (a) income or franchise tax expense for such period, (b) Consolidated
Interest Expense, (c) depreciation and amortization expense and (d) any non-cash
charges or non-cash losses, minus, to the extent added in computing such
Consolidated Net Income, (i) any non-cash gains or other non-cash items and (ii)
any income tax credits, all as determined on a consolidated basis with respect
to the Borrower and the Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the interest
-----------------------------
expense of Holdings, the Borrower and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including but not
limited to the portion of any payments or accruals with respect to Capital Lease
Obligations that are allocable to interest expense.
30
"Consolidated Net Income" means, for any period, net income or loss of
-----------------------
the Borrower and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
--------
income of any Person in which any other Person (other than the Borrower or any
of the Subsidiaries or any director holding qualifying shares in compliance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions (i) that the Borrower or any of the
Subsidiaries has the power to cause such Person to make to the Borrower or any
Subsidiary during such period and such dividend or other distribution is not
prohibited by the terms of any agreement binding upon such Person or otherwise
or (ii) that, to the extent not already included in Consolidated Net Income for
any period pursuant to clause (i) above, were actually paid to the Borrower or
any of the Subsidiaries by such Person during such period, (b) any after tax
gains or losses attributable to sales of assets out of the ordinary course of
business and (c) (to the extent not included in clauses (a) or (b) above) any
extraordinary gains or extraordinary losses.
"Contractual Obligations" means as to any Person, any provision of any
-----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Contributed Equity" means at any time or for any period, the
------------------
aggregate amount which shall have been received by the Borrower and/or Holdings
prior to such time or during such period as consideration for the issuance of
Capital Stock of Holdings (valued (i) in the case of cash, at the dollar amount
thereof, (ii) in the case of the AW Licenses, at $109,850,200, the agreed value
of the AW Licenses in the Securities Purchase Agreement, (iii) in the case of
the AW Swap Licenses, at approximately $9,662,062, the agreed amount by which
the value of the AW Swap Licenses exceeds the value of the Exchanged Licenses
and (iv) in the case of any other non-cash consideration, at the fair value
thereof as reasonably determined by the Administrative Agent) less (x) any
amounts contributed to any Unrestricted Subsidiary by Holdings and (y) any
amounts paid by Holdings in connection with the Equity Swap.
"Control" means the possession, directly or indirectly, of the power
-------
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
----------- ----------
31
"Covered Pops" means the aggregate number of Pops within each
------------
geographic area for which facilities owned by the Borrower or its Subsidiaries
that provide service to such geographic area have achieved substantial
completion.
"Debt Service" means for any period, the sum of (a) Cash Interest
------------
Expense for such period plus (b) scheduled principal amortization of Total Debt
----
for such period.
"Deeply Subordinated Debt" means subordinated Indebtedness of Holdings
------------------------
which (i) is not mandatorily redeemable or required to be repurchased or
reacquired by Holdings, the Borrower or any Subsidiary prior to the date that is
six months after the Tranche B Maturity Date; provided that upon a public
--------
offering of Capital Stock of Holdings or other Deeply Subordinated Debt in an
aggregate amount of at least $75,000,000, the Net Proceeds received therefrom
may be used to redeem, repurchase or reacquire such Deeply Subordinated Debt,
(ii) does not require a cash interest payment prior to the date that is six
months after the Tranche B Maturity Date, (iii) is not secured by any assets of
Holdings, the Borrower or any Subsidiary, (iv) is not Guaranteed by the Borrower
or any Subsidiary and (v) is otherwise on terms satisfactory to the
Administrative Agent. The Deeply Subordinated Debt shall not be deemed to be
Indebtedness of Holdings for purposes of this Agreement or any Loan Document.
"Default" means any event or condition which constitutes an Event of
-------
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
-----------------
environmental matters disclosed in Schedule 3.06.
"Disqualifying Transaction" has the meaning set forth in the
-------------------------
Stockholders Agreement.
"dollars" or "$" refers to lawful money of the United States of
------- -
America.
"Effective Date" means February 4, 1998.
--------------
"11% Notes" means the 11% Senior Subordinated Discount Notes due 2008
---------
issued by Holdings on May 4, 1998 with an aggregate principal amount at maturity
of $511,989,000 and the subordinated Guarantees thereof as in effect on the date
of issuance thereof.
32
"Environmental Laws" means all laws, rules, regulations, codes,
------------------
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
-----------------------
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equipment Subsidiary" means Triton PCS Equipment Company LLC and/or
--------------------
any Wholly Owned Subsidiary of the Borrower designated by the Borrower as the
Equipment Subsidiary by notice to the Administrative Agent; provided, however,
-------- -------
that (i) such Subsidiary has no obligations or liabilities other than as
permitted by Section 3.13, (ii) the stock of such Subsidiary is pledged to the
Collateral Agent for the benefit of the Lenders in accordance with the terms of
the Pledge Agreement and (iii) the Borrower and such Subsidiary have entered
into a Special Purpose Subsidiary Funding Agreement.
"Equity Swap" means the sale by Holdings of approximately 35,601.68
-----------
shares of Series C Preferred Stock to certain of its existing equity investors
for approximately $3,560,117 and the simultaneous redemption by Holdings of
approximately 35,601.68 shares of Series C Preferred Stock held by its existing
equity investor, ▇.▇. ▇▇▇▇▇▇ and one or more of its Affiliates, for
approximately $3,560,117.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
33
"ERISA Event" means (a) any "reportable event", as defined in Section
-----------
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
----------------
VII.
"Excess Cash Flow" means, for any period, the sum of (without
----------------
duplication):
(a) Consolidated Net Income for such period, adjusted to exclude any
gains or losses attributable to Prepayment Events; plus
----
(b) depreciation, amortization and other non-cash charges or losses
deducted in determining such consolidated net income (or loss) for such
period; plus
----
(c) the sum of (i) the amount, if any, by which Net Working Capital
decreased during such period plus (ii) the amount, if any, by which the
consolidated deferred revenues of the Borrower and its consolidated
Subsidiaries increased during such period plus (iii)
34
the aggregate principal amount of Capital Lease Obligations and other
Indebtedness incurred during such period to finance Capital Expenditures,
to the extent that mandatory principal payments in respect of such
Indebtedness would not be excluded from clause (f) below when made; minus
-----
(d) the sum of (i) any non-cash gains included in determining such
Consolidated Net Income (or loss) for such period plus (ii) the amount, if
any, by which Net Working Capital increased during such period plus (iii)
the amount, if any, by which the consolidated deferred revenues of the
Borrower and its consolidated Subsidiaries decreased during such period;
minus
-----
(e) cash Capital Expenditures for such period; minus
-----
(f) the aggregate principal amount of Indebtedness repaid or prepaid
by the Borrower and its consolidated Subsidiaries during such period,
excluding (i) Indebtedness in respect of Revolving Loans and Letters of
Credit, (ii) Term Loans prepaid pursuant to Section 2.09(b) or (c), (iii)
repayments or prepayments of Indebtedness financed by incurring other
Indebtedness, to the extent that mandatory principal payments in respect of
such other Indebtedness would not be excluded from this clause (f) when
made and (iv) Indebtedness referred to in clauses (ii), (ix), (x), (xi) and
(xiii) of Section 6.01(a); minus
-----
(g) Restricted Payments made pursuant to Section 6.08(a)(iv); plus
----
(h) any cash dividends or any other cash distributions paid or made
by, and received by the Borrower or any Subsidiary from, any Unrestricted
Subsidiary.
"Excluded Assets" means at any time, the collective reference to all
---------------
assets of the Borrower or any Subsidiary then subject to a Lien permitted by
sub-Section 6.02(iii)-(vi).
"Excluded Real Property Assets" means Real Property Assets which
-----------------------------
constitute Excluded Assets.
"Excluded Real Property-Related Equipment" means Real Property-Related
----------------------------------------
Equipment which constitutes Excluded Assets.
35
"Excluded Taxes" means, with respect to the Issuing Bank, the
--------------
Administrative Agent, or any Lender (a) income or franchise Taxes imposed on (or
measured by) its net income or profits by the United States of America, or by
the jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located or any Governmental Authority of or in any
of the foregoing (including, without limitation, minimum Taxes and Taxes
computed under alternative methods, the principal one of which is based on or
measured by net income or profits), (b) any branch profits Taxes imposed by the
United States of America or any similar Tax imposed by any other jurisdiction in
which the Borrower is located or the Issuing Bank, the Administrative Agent or
Lender as applicable, or organized or any Governmental Authority of or in any of
the foregoing, (c) in the case of a Foreign Lender (other than an assignee
pursuant to a request by the Borrower under Section 2.17(b)), any withholding
Tax that is in effect and would apply to a payment to such Foreign Lender at the
time such Foreign Lender becomes a party to this Agreement (or designates a new
lending office), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding Tax pursuant to Section 2.15(a), (d) any Taxes to the extent
imposed by reason of the Issuing Bank, Lender or Administrative Agent, as
applicable, engaging in activities in the jurisdiction imposing the Tax that are
unrelated to the transactions contemplated hereby, and (e) any Tax that would
not have been imposed but for the failure of a Lender or the Administrative
Agent, as applicable, to comply with the certification requirements described in
Section 2.15(e).
"FCC" means the Federal Communications Commission, or any other
---
similar or successor agency of the Federal government administering the
Communications Act.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
36
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges" means (a) Debt Service, (b) Capital Expenditures, (c)
-------------
Taxes and (d) dividends and distributions paid pursuant to Section 6.08(a)(iii).
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
------------------
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the United
----
States of America.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
37
"Guarantee Agreement" means the Guarantee Agreement with respect to
-------------------
the Obligations substantially in the form of Exhibit C, made by the Subsidiary
Loan Parties in favor of the Administrative Agent for the benefit of the Secured
Parties.
"Hazardous Materials" means all explosive or radioactive substances
-------------------
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Holdings" means Triton PCS Holdings, Inc., a Delaware corporation.
--------
"Incremental Commitment" shall have the meaning assigned thereto in
----------------------
Section 2.19.
"Incremental Facility Amendment" means an amendment to this Agreement
------------------------------
which contains the procedures for borrowing Incremental Term Loans, the
administrative information of the Lenders of such Incremental Term Loans and
other matters which have no adverse impact on any Lender, which amendment shall
be in form and substance satisfactory to the Administrative Agent and the
Borrower.
"Incremental Term Loan Lender" means a Person with an outstanding
----------------------------
Incremental Term Loan.
"Incremental Term Loans" shall have the meaning assigned thereto in
----------------------
Section 2.19.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of
38
business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person
of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnity, Subrogation and Contribution Agreement" means the
-------------------------------------------------
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit F, among the Borrower and the Subsidiaries.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Information Memorandum" means (a) the Confidential Information
----------------------
Memorandum dated November 1997 relating to the Borrower and the Transactions and
(b) the Confidential Information Memorandum dated July 1999 relating to the
Borrower and the Transactions.
"Initial Equity Contributions" means (i) AW's contribution to the
----------------------------
Borrower of 20 MHz of A or B Block PCS licenses covering the markets and Pops
set forth in Schedule 3.14 hereto (the "AW Licenses") in exchange for 732,371
shares of Series A Preferred Stock and 366,131 shares of Series D Preferred
Stock and (ii) purchases of 1,400,000 shares of Series C Preferred Stock of
Holdings by other investors for cash consideration and irrevocable commitments
of not less than $140,000,000, the purchase price for which will be paid
directly to the Borrower.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
---------------------
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period
39
applicable to the Borrowing of which such Loan is a part and, in the case of a
Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with the consent of each Lender, nine or twelve months) thereafter, as the
Borrower may elect; provided, that (i) if any Interest Period would end on a day
--------
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall
be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.18(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
----
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than
40
any such Person that ceases to be a party hereto pursuant to an Assignment and
Acceptance. In the event that any Incremental Term Loans shall have been
extended to the Borrower pursuant to Section 2.19 of this Agreement, "Lenders"
shall include the Incremental Term Loan Lenders. Unless the context otherwise
requires, the term "Lenders" includes the Swingline Lender. For purposes of the
definitions of "Obligations" and "Secured Parties" under the Security Agreement,
the term "Lender" shall also include an Affiliate of a Lender that is a
counterparty to a Hedging Agreement with a Loan Party.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"Leverage Ratio" means for any fiscal period, the ratio of (a) Total
--------------
Debt on the last day of such fiscal period to (b) Annualized EBITDA for the
period ending on the last day of such fiscal period.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of Dow ▇▇▇▇▇ Market (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing
---------
for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
"License" means any broadband Personal Communications Services license
-------
or cellular license issued by the FCC in connection with the operation of a
System.
"License Subsidiary" means Triton PCS License Company, L.L.C. and/or
------------------
any other Wholly Owned Subsidiary of the Borrower designated as a License
Subsidiary by notice to the Administrative Agent; provided, however, that (i)
-------- -------
such Subsidiary has no obligations or liabilities other than as permitted by
Section 3.13, (ii) the stock of such
41
Subsidiary is pledged to the Collateral Agent for the benefit of the Lenders in
accordance with the terms of the Pledge Agreement and (iii) the Borrower and
such Subsidiary have entered into a Special Purpose Subsidiary Funding
Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Guarantee Agreement, the
--------------
Pledge Agreement, the Security Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Special Purpose Subsidiary Funding Agreements, the
Consents to Assignment and the other Security Documents.
"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
------------
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Marketing Affiliate" means Affiliate License Co., L.L.C., a Delaware
-------------------
limited liability company owned 1/3 by the Borrower, 1/3 by Telecorp PCS, Inc.
and 1/3 by TriTel PCS, Inc., which engages in no significant activity other than
the registering, holding, maintenance and protection of trademarks and the
licensing thereof to its members.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, results of operations, prospects or financial condition of
Holdings, the Borrower and the Subsidiaries taken as a whole, (b) the ability of
any Loan Party to perform any of its obligations under any Loan Document or (c)
the validity or enforceability of any Loan Document or the rights of or remedies
available to the Administrative Agent or the Lenders under any Loan Document;
provided that, on or after February 4, 2003, neither (x) the nonrenewal of the
--------
Network License Agreement by AW nor (y) the termination of the Network License
Agreement by AW in accordance with its terms as a result of a Disqualifying
Transaction shall be a Material Adverse Effect.
42
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Holdings, the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of Holdings,
the Borrower or any Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
-------
"Mortgage" means a mortgage, deed of trust, assignment of leases and
--------
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
reasonably satisfactory in form and substance to the Administrative Agent.
"Mortgaged Property" means, initially, each interest in real property
------------------
and any improvements thereto owned by a Loan Party and identified on Schedule
3.22, and includes each interest in real property and any improvements thereto
with respect to which a Mortgage is granted pursuant to Section 5.12 or 5.13.
"MSA" means a Metropolitan Statistical Area, as defined in 47 C.F.R.
---
(S) 24.202.
"MTA" means a Major Trading Area, as defined in 47 C.F.R. (S) 24.202.
---
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Myrtle Acquisition" means the acquisition by one or more of Triton
------------------
PCS License Company L.L.C., Triton Myrtle Acquisition, L.L.C. or any other
Subsidiary (the "Myrtle Entities") of substantially all the assets of Vanguard
---------------
Cellular Systems of South Carolina, Inc. ("Vanguard"), including the FCC
--------
cellular licence for the South Carolina 5--Georgetown RSA, Market 629A, for cash
consideration of $160,000,000 (subject to working capital and subscriber
adjustments) in accordance with the terms of the Asset Purchase Agreement (the
"Myrtle Asset Purchase Agreement") dated March 10, 1998, between the Borrower,
--------------------------------
the Myrtle Entities and Vanguard.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
------------
received by Holdings, the Borrower
43
and the Subsidiaries in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by Holdings, the
Borrower and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a sale or other disposition of
an asset (including pursuant to a casualty or condemnation), the amount of all
payments required to be made by the Borrower and the Subsidiaries as a result of
such event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by Holdings,
the Borrower and the Subsidiaries, and the amount of any reserves established by
Holdings, the Borrower and the Subsidiaries to fund contingent liabilities
reasonably estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to such
event (as determined reasonably and in good faith by the chief financial officer
of the Borrower) and (iv) in the case of the sale of an entity in which Persons
other than Holdings, the Borrower and the Subsidiaries hold a minority interest
but the full amount of the proceeds relating to the sale of such entity are
received by Holdings, the Borrower or a Subsidiary, any amounts required to be
paid to such minority interest holder in connection with such sale; provided
--------
such amounts are not in excess of such minority interest holder's pro rata share
of the proceeds from such sale.
"Network" means the Borrower's mobile wireless telecommunications
-------
network that serves the Service Regions.
"Network License Agreement" means the Network Membership License
-------------------------
Agreement, dated the date hereof, between AT&T Corp. and Triton PCS Operating
Company, L.L.C., as the same may be amended, supplemented or otherwise modified
from time to time in accordance with Section 6.11 hereof.
"Net Working Capital" means, at any date, (a) the consolidated current
-------------------
assets of the Borrower and its consolidated Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the consolidated current
liabilities of the Borrower and its consolidated Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less
44
negative and decreases when it becomes less positive or more negative.
"Norfolk Acquisition" means the acquisition by one or more of Triton
-------------------
PCS License Company, L.L.C., the Borrower or any direct or indirect subsidiary
thereof (the "Norfolk Entities") of substantially all the assets of AW that are
----------------
used in or useful to the operation of the PCS system operated in the Norfolk,
Virginia BTA, including 20 MHz of the 30 MHz of PCS licenses owned by AW
covering such market, for cash consideration of $91,518,651 and the issuance of
$13,481,349 of Series D Preferred Stock in accordance with the terms of an Asset
Purchase Agreement dated as of August 20, 1998 between AW and Holdings (the
"Norfolk Asset Purchase Agreement").
---------------------------------
"Obligations" has the meaning assigned to such term in the Guarantee
-----------
Agreement and the Security Documents.
"Original Credit Agreement" means the Credit Agreement dated as of
-------------------------
February 3, 1998, among the Borrower, Holdings, the lenders party thereto and
The Chase Manhattan Bank, as administrative agent, as amended and in effect
immediately prior to the Amendment Execution Date.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"PCS C Block Auction" means the reauction conducted by the FCC for the
-------------------
sale of Licenses in the C block as set forth in parts 1 and 24 of Title 47 of
the Code of Federal Regulations that commenced on March 23, 1999.
"PCS Documents" means the Securities Purchase Agreement and each of
-------------
the documents that is an exhibit thereto (including the Network License
Agreement).
"Perfection Certificate" means a certificate in the form of Annex 2 to
----------------------
the Security Agreement or any other form approved by the Administrative Agent.
"Permitted Encumbrances" means:
----------------------
45
(a) Liens imposed by law for taxes, assessments or other governmental
charges that are not yet due or are being contested in compliance with
Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlords' and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 60 days or are being contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) liens of attachments, judgments or awards in respect of judgments
that do not constitute an Event of Default under clause (k) of Article VII
and in respect of which adequate reserves have been established in
accordance with GAAP;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) restrictions on the transfer of assets contained in any License or
imposed by the Communications Act or comparable state legislation;
(h) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower and its Subsidiaries
taken as a whole and any interest or title of a lessor under any lease not
prohibited by this Agreement;
(i) ground leases in respect of real property on which facilities
owned or leased by the Borrower or its Subsidiaries are located; and
46
(j) the filing of financing statements regarding leases not prohibited
by this Agreement and rights of lessors in property subject to such leases
; provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
----------------
the form of Exhibit D, between the Borrower, the Subsidiary Loan Parties and the
47
Administrative Agent for the benefit of the Secured Parties.
"Pops" means, as of any date, with respect to any BTA, MTA, MSA or
----
RSA, as applicable, the population of such BTA, MTA, MSA or RSA, as applicable,
as such number is most recently published in the "PCS Atlas and Data Book" by
▇▇▇▇ ▇▇▇▇▇ Associates, Inc.
"Preferred Stock Agreement" means the securities purchase agreement or
-------------------------
agreements (or an amendment or amendments to the Securities Purchase Agreement
entered into for such purpose) to be entered into by some or all of the current
equity investors in Holdings, relating to the purchase by some or all of the
current equity investors in Holdings of (a) $25,000,000 of equity securities of
Holdings for the purpose of funding a portion of the buildout of the Network in
the geographic areas covered by the Additional Licenses, (b) $35,000,000 of
equity securities of Holdings for the purpose of funding a portion of the
purchase price of the Myrtle Acquisition and (c) $30,000,000 of equity
securities of Holdings for the purpose of funding a portion of the purchase
price of the Norfolk Acquisition, in each case in form and substance reasonably
satisfactory to the Lenders.
"Prepayment Event" means:
----------------
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower or
any Subsidiary, other than (i) dispositions described in clauses (a), (b),
(d), (e) and (f) of Section 6.06 or (ii) other dispositions resulting in
aggregate Net Proceeds not exceeding $1,000,000 during any fiscal year of
the Borrower; provided that, if no Default exists or would result
--------
therefrom, such dispositions shall constitute a Prepayment Event only to
the extent that the Net Proceeds therefrom have not been applied, within
270 days of receipt thereof, to rebuild or replace the property or assets
sold, transferred or disposed, or to fund additional Capital Expenditures,
and such Prepayment Event shall be deemed to have occurred on such 270th
day; or
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of the Borrower or any Subsidiary; provided that, if no Default
--------
exists or would result therefrom, such event shall constitute a Prepayment
Event only to the extent that the Net Proceeds therefrom have not been
applied to repair, restore or replace such
48
property or asset within 270 days after such event, and such Prepayment
Event shall be deemed to have occurred on such 270th day; or
(c) the issuance by Holdings, the Borrower or any Subsidiary of any
equity securities for cash, or the receipt by Holdings, the Borrower or any
Subsidiary of any capital contribution in cash, other than, in the case of
the Borrower or any Subsidiary, any such issuance of equity securities to,
or receipt of any such capital contribution from, the Borrower or a
Subsidiary; provided that no such issuance or receipt shall constitute a
--------
Prepayment Event if (i) such equity is part of the initial $140,000,000
cash contribution and commitment of capital to Holdings pursuant to the
Securities Purchase Agreement or the immediate contribution by Holdings of
such capital to the Borrower, (ii) such equity is part of the $25,000,000
cash contribution to Holdings pursuant to the Preferred Stock Agreement
(without giving effect to any amendments to or waivers of the Preferred
Stock Agreement (other than such amendments or waivers that are not adverse
in a material respect to the interests of the Lenders)) and the AW Pops
Acquisition is consummated substantially contemporaneously with such
issuance or receipt; (iii) such equity is part of the $35,000,000
contribution to Holdings pursuant to the Preferred Stock Agreement (without
giving effect to any amendments to or waivers of the Preferred Stock
Agreement (other than such amendments or waivers that are not adverse in a
material respect to the interests of the Lenders)) and the Myrtle
Acquisition is consummated substantially contemporaneously with such
issuance or receipt; (iv) such equity is part of the $30,000,000
contribution to Holdings pursuant to the Preferred Stock Agreement (without
giving effect to any amendments to or waivers of the Preferred Stock
Agreement (other than such amendments or waivers that are not adverse in a
material respect to the interests of the Lenders)) and the Norfolk
Acquisition is consummated substantially contemporaneously with such
issuance or receipt; (v) such equity is part of cash contributions in an
aggregate amount not to exceed $75,000,000 to be used by Holdings to
capitalize Unrestricted Subsidiaries in accordance with clause (vii) of the
definition of "Unrestricted Subsidiary"; (vi) such equity is the
approximately 53,881.64 shares of Series A Preferred Stock and
approximately 42,738.98 shares of Series D Preferred Stock of Holdings
issued to AW or the approximately 4,748.78 shares of Common Stock issued to
the current holders of Common Stock in connection with the consummation of
the AW Pops Swap; (vii) such equity is part of the
49
issuance in an initial public offering of Common Stock; (viii) such equity
is part of the Additional Capital Contributions; (ix) such equity is part
of the $340,000 contribution in connection with the issuance of shares of
Series C Preferred Stock to certain directors and/or officers of Holdings
pursuant to the terms of those several Series C Preferred Stock Purchase
Agreements dated as of August 12, 1999 between Holdings and such
individuals; (x) after giving effect to any such issuance or receipt, (A)
Senior Leverage would be less than 5:1 and (B) the Borrower would be in Pro
Forma Compliance; or (xi) such issuance shall be to, or such receipt shall
be from, Holdings or Persons (or Affiliates thereof) owning capital stock
of Holdings on the Effective Date and no Default shall have occurred and be
continuing at the time of, or immediately after giving effect to, such
issuance or receipt.
(d) the incurrence by Holdings, the Borrower or any Subsidiary of any
Indebtedness, other than Indebtedness permitted by Section 6.01; provided
--------
that (i) no such issuance or receipt shall constitute a Prepayment Event
if, after giving effect to such issuance or receipt (x) (I) Senior Leverage
would be less than 5:1 and (II) the Borrower would be in Pro Forma
Compliance or (y) the Borrower shall have incurred in the aggregate less
than $150,000,000 of Indebtedness and (ii) the foregoing shall not relieve
the Borrower from any requirement hereunder to obtain the consent of the
Lenders for the incurrence of any Indebtedness.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Forma Compliance" shall exist if (a) Holdings and the Borrower
--------------------
shall be in pro forma compliance with the covenants set forth in Section 6.12
--- -----
recomputed, with respect to income statement items, as of the last day of the
most recently ended fiscal quarter for which financial statements have been
delivered in accordance with Section 5.01 as if the events with respect to which
Pro Forma Compliance is being measured had occurred on the first day of each
relevant period with respect to which Pro Forma Compliance is being measured and
as if Restricted Payments under Section 6.08(a)(iii) were deductions to
Consolidated EBITDA and (b) no Default or Event of Default shall exist either
immediately prior to the events with
50
respect to which Pro Forma Compliance is being determined or after giving effect
to such events.
"Qualified Vendor" means Ericsson Inc. or an affiliate thereof or
----------------
Lucent Technologies Inc. or an affiliate thereof.
"Qualified Vendor Agreement" shall have the meaning assigned thereto
--------------------------
in Section 6.01(a)(vii).
"Real Property Assets" means all interests (including leasehold
--------------------
interests) of the Borrower and its Subsidiaries in real property.
"Real Property-Related Equipment" means all equipment (as defined in
-------------------------------
the UCC) of the Borrower or any Subsidiary that constitutes a fixture (as
defined in the UCC) on Real Property Assets.
"Real Property Subsidiary" means Triton PCS Property Company, L.L.C.
------------------------
and/or any Wholly Owned Subsidiary of the Borrower designated by the Borrower as
a Real Property Subsidiary by notice to the Administrative Agent; provided,
--------
however, that (i) such Subsidiary has no obligations or liabilities other than
-------
as permitted by Section 3.13, (ii) the stock of such Subsidiary is pledged to
the Collateral Agent for the benefit of the Lenders in accordance with the terms
of the Pledge Agreement and (iii) the Borrower and such Subsidiary have entered
into a Special Purpose Subsidiary Funding Agreement.
"Register" has the meaning set forth in Section 9.04(c).
--------
"Related Business" means any business of the type conducted by the
----------------
Borrower and its Subsidiaries on the Effective Date or any business contemplated
to be conducted by the Borrower and its Subsidiaries in the business plan
delivered to the Lenders prior to the Amendment Effective Date and any business
directly related thereto(including the business contemplated to be conducted by
the Borrower by (S) 7.11(b) of the Stockholders Agreement, subject to the
conditions therein).
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
----------------
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the
51
total Revolving Exposures, outstanding Term Loans and unused Commitments at such
time.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws, the partnership agreement or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination, judgment, writ, injunction, decree or order of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer" means any of the president, chief executive
-------------------
officer, chief financial officer, treasurer or controller of the Borrower.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any such shares of capital stock of the Borrower
or any Subsidiary or any option, warrant or other right to acquire any such
shares of capital stock of the Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Revolving Commitment, as applicable. The
initial aggregate amount of the Lenders' Revolving Commitments is $100,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
------------------
the sum of (i) the outstanding principal amount of such Lender's Revolving
Loans, (ii) its LC Exposure at such time and (iii) in the case of the Swingline
Lender, its Swingline Exposure.
52
"Revolving Lender" means a Lender with a Revolving Commitment or, if
----------------
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (d) of Section
--------------
2.01.
"Revolving Maturity Date" means August 4, 2006.
-----------------------
"RSA" means a Rural Service Area, as defined in 47 C.F.R. (S) 24.202.
---
"S&P" means Standard & Poor's.
---
"Secured Parties" has the meaning assigned to such term in the
---------------
Security Agreement.
"Secured Real Property Assets" means all Real Property Assets
----------------------------
(including Mortgaged Properties) in which the Administrative Agent, for the
benefit of the Secured Parties, has a first priority perfected Mortgage or other
first priority perfected security interest pursuant to the Security Documents.
"Secured Real Property-Related Equipment" means Real Property Related
---------------------------------------
Equipment in which the Administrative Agent, for the benefit of the Secured
Parties, has a first priority perfected security interest pursuant to the
Security Documents.
"Securities Purchase Agreement" means the Securities Purchase
-----------------------------
Agreement by and among AW, Holdings, and the other parties thereto dated as of
October 8, 1997, including the schedules thereto.
"Security Agreement" means the Security Agreement among the Borrower,
------------------
the Subsidiary Loan Parties and the Administrative Agent, substantially in the
form of Exhibit E.
"Security Documents" means the Security Agreement, the Pledge
------------------
Agreement, the Mortgages and the Consents to Assignment and each other security
agreement or other instrument or document executed and delivered pursuant to any
of the foregoing or Section 5.12 or 5.13 to secure any of the Obligations.
"Senior Debt" shall mean all Indebtedness of Holdings, the Borrower
-----------
and the Subsidiaries on a consolidated basis other than the Subordinated Debt.
53
"Senior Leverage" means, on any date, the ratio of (a) Senior Debt on
---------------
such date to (b) Annualized EBITDA for the most recently ended fiscal quarter
for which financial statements have been delivered in accordance with Section
5.01.
"Series A Preferred Stock" means the Series A Preferred Stock, par
------------------------
value $.01 per share, of Holdings.
"Series C Preferred Stock" means the Series C Preferred Stock, par
------------------------
value $.01 per share, of Holdings.
"Series D Preferred Stock" means the Series D Preferred Stock, par
------------------------
value $.01 per share, of Holdings.
"Service Regions" means (i) the BTAs, MSAs and RSAs listed on Schedule
---------------
3.14 (excluding any areas in which the Borrower and its Subsidiaries have ceased
to provide service with the consent of the Required Lenders or as a result of a
transfer of assets pursuant to Section 6.06(c)) and (ii) any other areas with
respect to which the Borrower or its Subsidiaries acquire Licenses after the
Amendment Effective Date in accordance with the terms of this Agreement.
"Special Purpose Subsidiary" means any License Subsidiary and any Real
--------------------------
Property Subsidiary.
"Special Purpose Subsidiary Funding Agreement" means an agreement
--------------------------------------------
between the Borrower and/or Triton PCS Operating Company, L.L.C. and each
Special Purpose Subsidiary whereby (a) such Special Purpose Subsidiary agrees to
provide to the Borrower the benefit of the use of such Special Purpose
Subsidiary's assets, (b) the Borrower agrees to pay to such Special Purpose
Subsidiary an amount equal to all liabilities of such Special Purpose Subsidiary
less any amounts contributed by the Borrower to the equity of such Special
Purpose Subsidiary to fund such liabilities, (c) the Borrower agrees to cause
all Contractual Obligations of such Special Purpose Subsidiary to be performed
and all Requirements of Law of such Special Purpose Subsidiary to be complied
with and (d) the Borrower and such Special Purpose Subsidiary agree, for the
benefit of the Administrative Agent and the Secured Parties, to the assignment
by each of its rights thereunder to the Administrative Agent for the benefit of
the Secured Parties.
54
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to
constitute eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under such Regulation D or any
comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Stockholders Agreement" means the Stockholders' Agreement among AW,
----------------------
the Borrower and the other parties thereto dated as of February 4, 1998.
"Subordinated Debt" means high yield subordinated debt issued by the
-----------------
Borrower or Holdings on terms not less favorable to the Lenders than the terms
governing the 11% Notes and maturing on a date that is not earlier than November
4, 2007 and subordinated Guarantees thereof by the Subsidiaries (provided such
Guarantees are on terms not less favorable to the Lenders than the existing
subordinated Guarantees of the 11% Notes) and refinancings of such Indebtedness;
provided that (i) any such refinancing Indebtedness (a) shall not have a greater
outstanding principal amount, an earlier maturity date, or a decreased weighted
average life than the Subordinated Debt refinanced and (b) shall be subordinated
to the Indebtedness created under the Loan Documents to at least the extent of,
and shall otherwise be issued on terms no less favorable to the Lenders than,
the Subordinated Debt refinanced and (ii) the proceeds of such refinancing
Indebtedness shall be used solely to repay the Subordinated Debt refinanced
thereby and fees and expenses in connection therewith.
"Subordinated Debt Documents" means the indenture or indentures under
---------------------------
which any Subordinated Debt is issued and all other instruments, agreements and
other documents
55
evidencing or governing such Subordinated Debt, if any, or providing for any
Guarantee or other right in respect thereof.
"Subscribers" means as of any date, all customers then receiving
-----------
Wireless Services from the Borrower or any of its Subsidiaries none of the
subscriber payments (other than those disputed in good faith by such customer)
of which are, as of such date, past due more than 60 days (or past due for more
than such shorter period of time as the Borrower may have established for
accounting or credit policy purposes for treating a customer as not being in
good standing).
"subsidiary" means, with respect to any Person (such Person, the
----------
"parent") at any date, any corporation, limited liability company, partnership,
-------
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower. The parties hereto
----------
acknowledge that the Bidding Entity is not a Subsidiary.
"Subsidiary Loan Party" means any Subsidiary that is not a Foreign
---------------------
Subsidiary.
"Swingline Exposure" means, at any time, the aggregate principal
------------------
amount of all Swingline Loans outstanding at such time.
"Swingline Lender" means a Lender to be selected by the Borrower (with
----------------
the consent of the Administrative Agent, such consent not to be unreasonably
withheld), in its capacity as lender of Swingline Loans hereunder or any
56
successor Swingline Lender appointed pursuant to Section 2.20(c).
"Swingline Loan" means a Loan made pursuant to Section 2.20.
--------------
"System" means, as to any Person, assets constituting a radio
------
communications system authorized under the rules for wireless communications
services (including any license and the network, marketing, distribution, sales,
customer interface and operations functions relating thereto) owned and operated
by such Person.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means Tranche A Term Loans, Tranche B Term Loans, Tranche
----------
C Term Loans and Incremental Term Loans.
"Total Capital" means, at any date, the sum of (a) Total Debt
-------------
outstanding on such date plus (b) Contributed Equity on such date plus (c)
----
Committed Equity on such date.
"Total Debt" shall mean, at any time, all Indebtedness of Holdings
----------
(other than Indebtedness of any Unrestricted Subsidiary), the Borrower and the
Subsidiaries as determined on a consolidated basis in accordance with GAAP.
"Tower Sale" means the sale of up to $75,000,000 of assets to American
----------
Tower, L.P. and the leaseback of such assets pursuant to the Asset Purchase
Agreement (the "Tower Sale Asset Purchase Agreement") dated July 13, 1999, among
-----------------------------------
Triton PCS Operating Company L.L.C., Triton PCS Property Company L.L.C. and
American Tower, L.P.; provided that the value of the assets sold in connection
--------
with the Tower Sale shall not exceed $75,000,000 in the aggregate.
"Tranche A Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of February 4, 2001 and the date
of termination of the Tranche A Commitments.
57
"Tranche A Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche A Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
A Term Loans to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Tranche A Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche A Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche A Commitments is $175,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
----------------
outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means August 4, 2006.
-----------------------
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
-------------------
Section 2.01.
"Tranche B Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the date that is six months
from the Effective Date and the date of termination of the Tranche B
Commitments.
"Tranche B Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche B Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
B Term Loans to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Tranche B Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche B Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche B Commitments is $150,000,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment or an
----------------
outstanding Tranche B Term Loan.
58
"Tranche B Maturity Date" means May 4, 2007.
-----------------------
"Tranche B Rate" means, with respect to any Tranche B Term Loan (a)
--------------
2.00% per annum, in the case of an ABR Loan, and (b) 3.00% per annum, in the
case of a Eurodollar Loan.
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of
-------------------
Section 2.01.
"Tranche C Availability Period" means the period from and including
-----------------------------
the earlier of (i) the date that final definitive documentation with respect to
the Additional Capital Contributions has been executed on terms reasonably
satisfactory to the Administrative Agent and (ii) the date that Holdings
receives Net Proceeds of at least $75,000,000 from an initial public offering of
its equity securities to but excluding the earlier of February 4, 2001 and the
date of termination of the Tranche C Commitments.
"Tranche C Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche C Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
C Term Loans to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Tranche C Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche C Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche C Commitments is $175,000,000.
"Tranche C Lender" means a Lender with a Tranche C Commitment or an
----------------
outstanding Tranche C Term Loan.
"Tranche C Maturity Date" means August 4, 2006.
-----------------------
"Tranche C Term Loan" means a Loan made pursuant to clause (c) of
-------------------
Section 2.01.
"Transactions" means (a) the execution, delivery and performance by
------------
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of
59
Credit hereunder, (b) the execution, delivery and performance by each Loan
Party of the Subordinated Debt Documents relating to the 11% Notes to which it
is to be a party, the issuance of such Subordinated Debt, if any, and the use of
the proceeds thereof, (c) the Tower Sale and (d) the Initial Equity
Contributions and the Additional Capital Contributions.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" mean the Uniform Commercial Code of the State of New York.
---
"Unrestricted Subsidiary" means any subsidiary of Holdings or any
-----------------------
other direct or indirect investment by Holdings in the Capital Stock of any
other Person (other than the Borrower or any Subsidiary) so long as at the time
such subsidiary is acquired or created or such investment is made (i) no Default
or Event of Default shall have occurred and be continuing or would result
therefrom, (ii) Holdings shall have notified the Administrative Agent of its
acquisition or creation of such subsidiary or its making of such investment and
its ownership interest therein and its designation thereof as an Unrestricted
Subsidiary concurrently with such acquisition, creation or investment and the
intended purposes of such subsidiary or investment, (iii) all transactions
related thereto shall be consummated in accordance with applicable laws, (iv)
Holdings and the Borrower shall be in Pro Forma Compliance, (v) none of
Holdings, the Borrower or any Subsidiary shall have any contingent liability in
respect thereof (other than any contingent tax liabilities in respect of which
there shall exist a tax sharing agreement with the other owners of such
Unrestricted Subsidiary providing for an allocation of tax liabilities and
benefits customary in similar circumstances), (vi) any management or service
provided by Holdings, the Borrower or any Subsidiary to such subsidiary or
investment shall be provided in consideration of cash remuneration in an amount
not less than could have been obtained from a third party on an arms' length
basis and (vii) such subsidiary or investment shall be capitalized solely from
(A) contributions to the capital of Holdings in an aggregate amount not to
exceed
60
$75,000,000 to be contributed substantially contemporaneously by Holdings
to such Unrestricted Subsidiary, (B) investments by Persons other than Holdings,
the Borrower or any Subsidiary and (C) the proceeds of Indebtedness of Persons
other than Holdings, the Borrower or any Subsidiary.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
-----------------------
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the equity or 100% of the
ordinary voting power or 100% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held by such Person
or one or more wholly owned subsidiaries of such Person or by such Person and
one or more wholly owned subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Wireless Services" means broadband personal communications services
-----------------
or cellular services provided in one or more Systems (including cellular
services provided on the 850 MHz band to the extent such services constitute a
Related Business).
SECTION 1.02. Classification of Loans and Borrowings. For purposes
---------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
-----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
----
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
----------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the
61
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights
and (f) the words "on the date hereof," "as of the date hereof" or "the date of
this Agreement" shall be construed to refer to February 3, 1998, the Agreement
Date.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
-----------------------
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(b) All computations required to be made hereunder with respect to
the Borrower to demonstrate compliance with any of the financial covenants
contained in Section 6.12 and any computation based on "Consolidated EBITDA"
(except for the computation of "Excess Cash Flow")
62
shall be computed to give effect on a pro forma basis to any acquisition,
disposition or similar event permitted by this Agreement and consummated prior
to the computation as if such acquisition, disposition or other event had
occurred on the first day of the relevant period. All pro forma computations
required to be made hereunder giving effect to any such acquisition, disposition
or similar event shall reflect on a pro forma basis such event and, to the
extent applicable, the historical earnings, cash flows and expenses associated
with the assets acquired or disposed of and any related incurrence or reduction
of Indebtedness, but shall not take into account any projected synergies or
similar benefits expected to be realized as a result of such event.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
------------
forth herein, each Lender agrees (a) to make Tranche A Term Loans to the
Borrower during the Tranche A Availability Period in an aggregate principal
amount not exceeding its Tranche A Commitment, (b) to make Tranche B Term Loans
to the Borrower during the Tranche B Availability Period in a principal amount
not exceeding its Tranche B Commitment, (c) to make Tranche C Term Loans to the
Borrower during the Tranche C Availability Period in an aggregate principal
amount not exceeding its Tranche C Commitment, and (d) to make Revolving Loans
to the Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount that will not result in such Lender's Revolving
Exposure exceeding such Lender's Revolving Commitment. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts repaid or prepaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
---------------------
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations
63
hereunder; provided that the Commitments of the Lenders are several and no
--------
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.12, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
--------
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $2,000,000; provided
--------
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.18(e)(ii). Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a total of
--------
10 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, Tranche A Maturity Date, Tranche B Maturity
Date or Tranche C Maturity Date, as applicable.
64
SECTION 2.03. Requests for Borrowings. To request a Revolving
------------------------
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and
shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Borrowing
Request shall specify the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing,
Tranche A Term Borrowing, Tranche B Term Borrowing or Tranche C Term
Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the
65
details thereof and of the amount of such Lender's Loan to be made as part of
the requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make
----------------------
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
--------
provided in Section 2.20. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided, that ABR Revolving Loans made to finance the reimbursement of
--------
an LC Disbursement as provided in Section 2.18(e)(ii) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing and
-------------------
Term Borrowing initially shall be
66
of the Type specified in the applicable Borrowing Request and, in the case of a
Eurodollar Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in
this Section. The Borrower may elect different options with respect to different
portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans comprising such Borrowing,
and the Loans comprising each such portion shall be considered a separate
Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
67
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued as
a Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such scheduled repayment date plus
the aggregate principal amount of outstanding ABR Borrowings of such Class would
be less than the aggregate principal amount of Loans of such Class required to
be repaid on such scheduled repayment date.
SECTION 2.06. Termination and Optional Reduction of Commitments. (a)
--------------------------------------------------
Unless previously terminated, (i) the
68
Tranche A Commitments shall terminate at 5:00 p.m., New York City time, on the
last day of the Tranche A Availability Period, (ii) the Tranche B Commitments
shall terminate at 5:00 p.m., New York City time, on the last day of the Tranche
B Availability Period, (iii) the Tranche C Commitments shall terminate at 5:00
p.m., New York City time, on the last day of the Tranche C Availability Period
and (iv) the Revolving Commitments shall terminate on the Revolving Maturity
Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the
--------
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $2,000,000, (ii) the Borrower shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving Loans in accordance with Section 2.09, the sum of
the Revolving Exposures would exceed the total Revolving Commitments and (iii)
the Borrower may not reduce or terminate the Tranche B Commitments if any
portion of the Revolving Commitments or Tranche A Commitments is outstanding.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
--------
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
-------------------------------------
Borrower hereby unconditionally promises to
69
pay (i) to the Administrative Agent for the account of each Lender the then
unpaid principal amount of each Revolving Loan of such Lender on the Revolving
Maturity Date, (ii) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Term Loan of such Lender as provided in
Section 2.08 and (iii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of (i) the Revolving Maturity Date and
(ii) the first Business Day after the Swingline Lender demands repayment of such
Swingline Loan (or such other date as may be fixed by agreement between the
Borrower and the Swingline Lender).
(b) In the event and on such occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Agent pursuant to Section 2.18(j)) in an
aggregate amount equal to such excess.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(d) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to paragraph
(c) or (d) of this Section shall, to the extent permitted by law, be prima facie
----- -----
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
--------
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
70
(f) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent and the Borrower. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable to the order of the payee
named therein (or, if such promissory note is a registered note, to such payee
and its registered assigns).
SECTION 2.08. Automatic Revolving Commitment Reductions; Amortization
-------------------------------------------------------
of Term Loans. (a) The aggregate amount of the Lenders' Revolving Commitments
--------------
shall automatically and permanently reduce in eight consecutive quarterly
reductions occurring on August 4, 2004, and on each successive date thereafter
which is three months after the preceding reduction date, in the aggregate
amount set forth below for each reduction:
Reduction Amount
--------- ------
1-2 $ 5,000,000
---
3-6 $10,000,000
---
7-8 $25,000,000
---
71
(b) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay each of the Tranche A Term Loans and the Tranche C
Term Loans in 18 consecutive quarterly installments, payable on February 4,
2002, and on each successive date thereafter which is three months after the
preceding installment date, in the aggregate amount set forth below for each
installment:
Tranche A Tranche C
Installment Amount Amount
----------- --------- ---------
1-4 $ 4,375,000 $ 4,375,000
5-8 $ 6,562,500 $ 6,562,500
9-12 $ 8,750,000 $ 8,750,000
13-16 $10,937,500 $10,937,500
17-18 $26,250,000 $26,250,000
(c) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay each of the Tranche B Term Loans in 21 consecutive
quarterly installments, payable on February 4, 2002, and on each successive date
thereafter which is three months after the preceding installment date, in the
aggregate amount set forth below for each installment:
Tranche B
Installment Amount
----------- ---------
1-4 $ 375,000
5-8 $ 375,000
9-12 $ 375,000
13-16 $ 375,000
17-20 $ 7,500,000
21 $114,000,000
(d) To the extent not previously paid, (i) all Tranche A Term Loans
shall be due and payable on the Tranche A Maturity Date, (ii) all Tranche B Term
Loans shall be due and payable on the Tranche B Maturity Date and (iii) all
Tranche C Term Loans shall be due and payable on the Tranche C Maturity Date.
(e) If the initial aggregate amount of the Lenders' Term Commitments
of any Class exceeds the aggregate principal amount of Term Loans of such Class
that are made during the Tranche A Availability Period, the
▇▇
▇▇▇▇▇▇▇ ▇ Availability Period or the Tranche C Availability Period, as the case
may be, then the scheduled repayments of Term Borrowings of such Class to be
made pursuant to this Section shall be reduced ratably by an aggregate amount
equal to such excess. Any prepayment of a Term Borrowing of any Class shall be
applied to reduce the subsequent scheduled repayments of the Term Borrowings of
such Class to be made pursuant to this Section ratably.
(f) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment; provided that each repayment of Term Borrowings of any Class shall be
--------
applied to repay any outstanding ABR Term Borrowings of such Class before any
other Borrowings of such Class. Each repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
--------------------
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to the requirements of this Section.
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, immediately after such Net Proceeds are received, the Borrower
shall prepay Term Borrowings and the Revolving Commitments shall be
automatically and permanently reduced in an aggregate amount (to be applied
ratably among the Tranche A Term Loans, the Tranche B Term Loans, the Tranche C
Term Loans, the Incremental Term Loans, if any, and the Revolving Commitments
based on their then respective amounts) equal to (i) in the case of an event
described in clause (c) of the definition of "Prepayment Event", 50% of such Net
Proceeds and (ii) in the case of an event described in any other clause of the
definition of "Prepayment Event", 100% of such Net Proceeds.
(c) Following the end of the fiscal year of the Borrower ending
December 31, 2001 and following the end of
73
each subsequent fiscal year, the Borrower shall prepay Term Borrowings and the
Revolving Commitments shall be automatically and permanently reduced in an
aggregate amount (to be applied ratably among the Tranche A Term Loans, the
Tranche B Term Loans, the Tranche C Term Loans, the Incremental Term Loans, if
any, and the Revolving Commitments based on their then respective amounts) equal
to 50% of Excess Cash Flow for such fiscal year. Each prepayment pursuant to
this paragraph shall be made on or before the date on which financial statements
are delivered pursuant to Section 5.01 with respect to the fiscal year for which
Excess Cash Flow is being calculated (and in any event within 105 days after the
end of such fiscal year).
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section; provided that each prepayment of Borrowings of
--------
any Class shall be applied to prepay ABR Borrowings of such Class before any
other Borrowings of such Class. In the event of any optional or mandatory
prepayment of Term Borrowings made at a time when Term Borrowings of more than
one Class remain outstanding, the Borrower shall select Term Borrowings to be
prepaid so that the aggregate amount of such prepayment is allocated among the
Tranche A Term Borrowings, Tranche B Term Borrowings, Tranche C Term Borrowings
and Incremental Term Borrowings, if any, pro rata based on the aggregate
principal amount of outstanding Borrowings of each such Class; provided that any
--------
Tranche B Lender may elect, by notice to the Administrative Agent by telephone
(confirmed by telecopy) at least one Business Day prior to the prepayment date,
to decline all or any portion of any prepayment of its Tranche B Term Loans
pursuant to this Section (other than an optional prepayment pursuant to
paragraph (a) of this Section, which may not be declined), in which case the Net
Proceeds or Excess Cash Flow that would have been applied to prepay Tranche B
Term Loans but were so declined shall be applied to prepay Tranche A Term Loans,
Tranche C Term Loans and Incremental Term Loans, if any, and to reduce the
Revolving Commitments on a pro rata basis based on their then respective
amounts.
(e) The amount of any optional or mandatory prepayments allocated to
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans and Incremental
Term Loans, if any, shall be applied pro rata to reduce the
74
principal amount of the then remaining amortization installments applicable to
such Loans set forth in Section 2.08. The amount of any optional or mandatory
commitment reductions allocated to the Revolving Loans shall be applied pro rata
to reduce the principal amount of the then remaining reductions applicable to
such Commitments set forth in Section 2.08. Any reduction of the Revolving
Commitments shall be accompanied by prepayment of Revolving Loans to the extent
the aggregate amount of such loans outstanding exceeds the total amount of the
Revolving Commitments as so reduced.
(f) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing for which the Tranche B Lenders
may make the election described in the proviso to the second sentence of Section
2.09(d), not later than 11:00 a.m., New York City time, on the Business Day
before the date of prepayment and, for all other ABR Borrowings, not later than
11:00 a.m., New York City time, on the date of prepayment, and (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment, or such other time as may be agreed by the
Borrower and the Swingline Lender. Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment; provided that,
--------
if a notice of optional prepayment is given in connection with a conditional
notice of termination of the Revolving Commitments as contemplated by Section
2.06, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.06. Promptly following
receipt of any such notice (other than a notice relating solely to Swingline
Loans), the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount
of a mandatory prepayment. Each prepayment
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of a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
-----
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily unused amount of each
Commitment of such Lender for each day during the period (i) with respect to any
Revolving Commitment, Tranche A Commitment, or Tranche B Commitment, from and
including the date hereof to but excluding the date on which such Commitment
terminates and (ii) with respect to any Tranche C Commitment, from and including
the Amendment Execution Date to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which any
Commitments of such Lender shall expire or terminate, commencing on the first
such date to occur after the date hereof. All commitment fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender, but the Swingline
Exposure shall not be deemed to be a use of the Swingline Lender's Commitment.
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing Bank
in the case of fees payable to it) for distribution, in the case of commitment
fees and participation fees, to the Lenders entitled thereto. Fees paid shall
not be refundable under any circumstances.
(d) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Revolving
76
Lender a participation fee with respect to its participations in Letters of
Credit, which shall accrue at the same Applicable Margin as interest on
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Amendment Effective Date
to but excluding the later of the date on which such Lender's Revolving
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at the
rate or rates separately agreed upon between the Borrower and the Issuing Bank
on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Amendment Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or any
processing of drawings thereunder. Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Amendment Effective Date;
provided that all such fees shall be payable on the date on which the Revolving
--------
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
---------
shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
77
(c) The Loans comprising each Swingline Borrowing shall bear interest
at the rate agreed by the Borrower and the Swingline Lender in accordance with
Section 2.20(b).
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
--------
pursuant to paragraph (c) of this Section shall be payable on demand, (ii) in
the event of any repayment or prepayment of any Loan (other than a prepayment of
an ABR Revolving Loan prior to the end of the Revolving Availability Period),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
78
SECTION 2.12. Alternate Rate of Interest. If prior to the
---------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist (provided that the
Administrative Agent shall use commercially reasonable efforts to determine
whether or not the circumstances which have caused the notice, continue to
exist), (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
----------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition (other than a condition relating to a Tax)
affecting this Agreement or Eurodollar Loans made by such Lender (or any
Letter of Credit or participation therein);
79
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or Issuing Bank or such Lender's or Issuing Bank's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's or Issuing Bank's policies and the policies of such
Lender's or Issuing Bank's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or Issuing Bank or such Lender's or Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing Bank the amount
shown as due on any such certificate within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or
80
Issuing Bank's right to demand such compensation; provided that the Borrower
--------
shall not be required to compensate a Lender or Issuing Bank pursuant to this
Section for any increased costs or reductions incurred more than 270 days prior
to the date that such Lender or Issuing Bank, as the case may be, notifies the
Borrower of the Change in Law giving rise to such increased costs or reductions
and of such Lender's or Issuing Bank's intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased
----------------
costs or reductions is retroactive, then the 270-day period referred to above
shall be extended to include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
-----------------------
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.09(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount reasonably determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or
81
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 10 days after receipt thereof.
SECTION 2.15. Taxes. (a) Any and all payments by or on account of
------
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
--------
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender, and the Issuing Bank within 30 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender, or the Issuing Bank, on or with respect to
any payment by or on account of any obligation of the Borrower hereunder or
under any other Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, the Issuing Bank or by the Administrative Agent on its own
behalf or on behalf of a Lender, or the Issuing Bank, shall be conclusive absent
manifest error.
82
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall,
upon request, deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, including, without limitation, if
such Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code and intends to claim exemption from the U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Foreign Lender delivers a Form W-8, a certificate representing
that such Foreign Lender is not a bank for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Foreign Lender claiming
complete exemption from, or a reduced rate of, U.S. Federal withholding tax on
payments of interest by the Borrower under this Agreement and the other Loan
Documents.
(f) If the Administrative Agent or a Lender receives a refund in
respect of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall within 30 days from
the date of such receipt pay over to the Borrower (a) such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.15 with respect to the
83
Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-
pocket expenses of the Administrative Agent or such Lender and (b) interest paid
by the relevant Governmental Authority with respect to such refund); provided,
--------
however, that the Borrower, upon the request of the Administrative Agent or such
-------
Lender shall repay the amount paid over to the Borrower (plus penalties,
interest or other charges) to the Administrative Agent or such Lender in the
event the Administrative Agent or such Lender is required to repay such refund
to such Governmental Authority.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
--------------------------------------------------
Setoffs. (a) The Borrower shall make each payment required to be made by it
--------
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.13,
2.14 or 2.15, or otherwise) prior to 12:00 noon, New York City time, on the date
when due, in immediately available funds, without setoff or counterclaim. Any
amounts received after 2:00 p.m. on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the Persons
entitled thereto and payments pursuant to other Loan Documents shall be made to
the Persons specified therein. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment under
any Loan Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the
period of such extension. All payments under each Loan Document shall be made
in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such
84
funds shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set off or
counterclaim or otherwise, obtain payment in respect of any Loan or
participation in LC Disbursements as a result of which the unpaid principal
portion of its Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans,
Incremental Term Loans (if any), Revolving Loans or participations in LC
Disbursements shall be proportionately less than the unpaid principal portion of
the Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans,
Incremental Term Loans (if any), Revolving Loans or participations in LC
Disbursements of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans, Incremental Term Loans (if
any), Revolving Loans or participations in LC Disbursements, as the case may be,
of such other Lender, so that the aggregate unpaid principal amount of the
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Incremental
Term Loans (if any), Revolving Loans and participations in LC Disbursements and
participations in Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans, Incremental Term Loans (if any), Revolving Loans or participations in LC
Disbursements held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans, Incremental Term Loans (if any), Revolving Loans or
participations in LC Disbursements then outstanding as the principal amount of
its Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans,
Incremental Term Loans (if any), Revolving Loans or participations in LC
85
Disbursements outstanding prior to such exercise of any right of setoff or
counterclaim or other event was to the principal amount of all Tranche A Term
Loans, Tranche B Term Loans, Tranche C Term Loans, Incremental Term Loans (if
any), Revolving Loans or participations in LC Disbursements outstanding prior to
such exercise of any right of setoff or counterclaim or other event; provided
--------
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by the Borrower pursuant to and in
accordance with the express terms of this Agreement or any payment obtained by a
Lender as consideration for the assignment of or sale of a participation in any
of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of setoff and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or the Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(b), 2.16(d), 2.18(d) or (e) or 9.03(c), then the
Administrative
86
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender's obligations under such Sections
until all such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a)
-----------------------------------------------
If any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
--------
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
87
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
SECTION 2.18. Letters of Credit. (a) General. Subject to the terms
------------------ --------
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
-----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any
88
request for a Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if (and upon issuance, amendment, renewal or extension
of each Letter of Credit the Borrower shall be deemed to represent and warrant
that), after giving effect to such issuance, amendment, renewal or extension (i)
the LC Exposure shall not exceed $25,000,000 and (ii) the total Revolving
Exposures shall not exceed the total Revolving Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
----------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
---------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement.
--------------
89
(i) If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit and such LC Disbursement is less than $2,000,000, the
Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is
made, if the Borrower shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or, if such notice
has not been received by the Borrower prior to such time on such date, then
not later than 12:00 noon, New York City time, on (A) the Business Day that
the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (B) the Business
Day immediately following the day that the Borrower receives such notice,
if such notice is not received prior to such time on the day of receipt.
The Administrative Agent shall notify each Revolving Lender of any LC
Disbursement that is required to be reimbursed under the preceding sentence
and that is not so reimbursed. Such notice shall include the payment then
due from the Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the Borrower, in the same manner as
provided in Section 2.04 with respect to Loans made by such Lender (and
Section 2.04 shall apply, mutatis mutandis, to the payment obligations of
------- --------
the Revolving Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Revolving Lenders.
Promptly following receipt by the Administrative Agent of any payment from
the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to
reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as
their interests may appear. Any payment made by a Revolving Lender
pursuant to this paragraph to reimburse the Issuing Bank for any LC
Disbursement shall not constitute a Loan and shall not relieve the Borrower
of its obligation to reimburse such LC Disbursement.
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(ii) If the Issuing Bank shall make any LC Disbursement in respect of
any Letter of Credit and such LC Disbursement is greater than or equal to
$2,000,000, the Borrower shall be deemed to have made an ABR Revolving
Borrowing in the equivalent amount on the date of such LC Disbursement.
The Administrative Agent shall notify each Revolving Lender of any ABR
Revolving Borrowing that is deemed to have been made pursuant to this
paragraph. Such notice shall include the principal amount in respect
thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Revolving Lender shall pay to the
Administrative Agent its Applicable Percentage of the ABR Revolving
Borrowing that is deemed to have been made, in the manner provided in
Section 2.04, and the Administrative Agent shall promptly pay to the
Issuing Bank the amounts so received by it from the Revolving Lenders.
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(f) Obligations Absolute. The Borrower's obligation to reimburse LC
---------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the
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generality thereof, the parties agree that, with respect to documents presented
which appear on their face to be in substantial compliance with the terms of a
Letter of Credit, the Issuing Bank may, in its sole discretion, either accept
and make payment upon such documents without responsibility for further
investigation, regardless of any notice or information to the contrary, or
refuse to accept and make payment upon such documents if such documents are not
in strict compliance with the terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
------------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
-----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
--------
pursuant to paragraph (e) of this Section, then Section 2.11(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
--------------------------------
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.10(d). From and after the effective date of
any such
93
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
-----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Borrower shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
--------
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Borrower described in clause (h) or (i) of Article VII. The Borrower also shall
deposit cash collateral pursuant to this paragraph as and to the extent required
by Section 2.07(b). Each such deposit shall be held by the Administrative Agent
as collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and
94
expense, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account shall
be applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Revolving Lenders with LC
Exposure representing greater than 50% of the total LC Exposure), be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived. If the Borrower is required to
provide an amount of cash collateral hereunder pursuant to Section 2.07(b), such
amount (to the extent not applied as aforesaid) shall be returned to the
Borrower as and to the extent that, after giving effect to such return, the
Borrower would remain in compliance with Section 2.07(b) and no Default shall
have occurred and be continuing.
SECTION 2.19. Incremental Term Loans. On or prior to February 2,
-----------------------
2001, the Borrower may, by notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders), request the addition of a new
tranche of term loans (the "Incremental Term Loans"); provided, however, that
---------------------- -------
both at the time of any such request and after giving effect to any such
Incremental Term Loans, no Default shall exist and the Borrower shall be in Pro
Forma Compliance with each financial covenant. The Incremental Term Loans shall
(i) be in an aggregate principal amount not in excess of $150,000,000 less the
aggregate principal amount of any outstanding Subordinated Debt permitted by
Section 6.01(a)(iii), (ii) rank pari passu in right of payment and of security
---- -----
with the other Loans, (iii) not be available unless the Tranche C Term Loans are
fully drawn, (iv) mature not earlier than the date that is six months subsequent
to the Tranche B Maturity Date, (v) have a longer average weighted life than the
Tranche B Term Loans, (vi) be drawn on or prior to February 2, 2001, (vii) have
such pricing as may be agreed by the Borrower and the Persons providing such
Incremental
95
Term Loans and (viii) otherwise be treated hereunder no more favorably than the
Tranche B Term Loans. Such notice shall set forth the requested amount of
Incremental Term Loans, and shall offer each Lender the opportunity to offer a
commitment (the "Incremental Commitment") to provide Incremental Term Loans by
----------------------
giving written notice of such offered commitment to the Administrative Agent and
the Borrower within a time period (the "Offer Period") to be specified in the
Borrower's notice; provided, however, that no existing Lender will be obligated
-------- -------
to subscribe for any portion of such commitments. In the event that, at the
expiration of the Offer Period, Lenders shall have provided commitments in an
aggregate amount less than the total amount of the Incremental Term Loans
requested by the Borrower, the Borrower shall have the right to arrange for one
or more banks or other financial institutions (any such bank or other financial
institution being called an "Additional Lender") to extend commitments to
------------------
provide Incremental Term Loans in an aggregate amount equal to the unsubscribed
amount; provided that each Additional Lender shall be subject to the approval of
--------
the Administrative Agent (which approval shall not be unreasonably withheld);
and provided further that the Additional Lenders shall be offered the
-------- -------
opportunity to provide the Incremental Term Loans only on terms previously
offered to the existing Lenders pursuant to the immediately preceding sentence.
Commitments in respect of Incremental Term Loans shall become Commitments under
this Agreement pursuant to an Incremental Facility Amendment executed by each of
the Borrower, each Lender agreeing to provide such Commitment, if any, each
Additional Lender, if any, and the Administrative Agent. The effectiveness of
any Incremental Facility Amendment shall be subject to the satisfaction on the
date thereof and, if different, on the date on which the Incremental Term Loans
are made, of each of the conditions set forth in Section 4.02.
SECTION 2.20. Swingline Loans. (a) Subject to the terms and
----------------
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$5,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein,
96
the Borrower may borrow, prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent and the Swingline Lender of such request by telephone
(confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day), the amount of
the requested Swingline Loan, the proposed interest rate (or basis of
determining the interest rate) with respect to such Swingline Loan (which may
not exceed the interest rate then applicable to Revolving ABR Loans), and
whether such Swingline Loan is to be repayable on demand of the Swingline Lender
or on an agreed date (in which case the Borrower shall specify a proposed date
of repayment). The Swingline Lender shall, after confirming with the
Administrative Agent that there are sufficient unused Revolving Commitments to
permit such Swingline Loan, make such Swingline Loan available to the Borrower
by means of a credit to the general deposit account of the Borrower with the
Swingline Lender by 2:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c) The Borrower may, with the consent of the Administrative Agent
(which consent shall not be unreasonably withheld) and the acting Swingline
Lender, replace the acting Swingline Lender with a successor Swingline Lender;
provided, that (i) the successor Swingline Lender shall be a Lender hereunder,
--------
(ii) the successor Swingline Lender shall be engaged as the primary cash
management bank for the Borrower and (iii) prior to the effectiveness of the
appointment of the successor Swingline Lender, all Swingline Loans payable to
the retiring Swingline Lender shall be repaid.
ARTICLE III
Representations and Warranties
------------------------------
Holdings and the Borrower represent and warrant to the Lenders that:
97
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower
---------------------
and its Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and to own and operate
its Systems in the Service Regions, and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
SECTION 3.02. Authorization; Enforceability. The Transactions
------------------------------
entered into or to be entered into by each Loan Party are within such Loan
Party's corporate or other organizational powers and have been duly authorized
by all necessary action. This Agreement has been duly executed and delivered by
the Borrower and constitutes, and each other Loan Document to which any Loan
Party is to be a party, when executed and delivered by such Loan Party,
constituted or will constitute, a legal, valid and binding obligation of the
Borrower or such Loan Party (as the case may be), enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
-------------------------------------
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings with the
Securities and Exchange Commission in connection with the 11% Notes, filings
required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and the
rules thereunder in connection with the Tower Sale, and filings necessary to
perfect Liens created under the Loan Documents, (b) have not and will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Loan Party or any order of any Governmental
Authority, (c) have not and will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Loan Party or any of
their assets, or give rise to a right thereunder to require any payment to be
made by any Loan Party and (d)
98
have not and will not result in the creation or imposition of any Lien on any
asset of any Loan Party, except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
------------------------------------------------
(a) Holdings and the Borrower have heretofore furnished to the
Lenders projected consolidated balance sheets as of December 31, 1999, prepared
giving effect to the Transactions as if the Transactions had occurred on such
date. Such pro forma consolidated balance sheets (i) have been prepared in good
faith based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are
believed by the Borrower to be reasonable), (ii) are based on the best
information available to the Borrower after due inquiry, (iii) accurately
reflect all adjustments necessary to give effect to the Transactions and (iv)
present fairly, in all material respects, the pro forma financial position of
the Borrower and its consolidated Subsidiaries as of such date as if the
Transactions had occurred on such date.
(b) Except as disclosed in the financial statements referred to above
or the notes thereto, in the Borrower's quarterly report filed with the
Securities and Exchange Commission on Form 10-Q for the quarter ended June 30,
1999, or in the Information Memorandum and except for the Disclosed Matters,
after giving effect to the Transactions, none of Holdings, the Borrower or its
Subsidiaries has, as of the Amendment Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.
(c) Since December 31, 1998, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
-----------
Subsidiaries has, or with respect to assets to be purchased from a Qualified
Vendor will have upon execution of the Qualified Vendor Agreement and delivery
of the assets contemplated thereby, good title to, or valid leasehold interests
in, all real and personal property material to its business (including its
Mortgaged
99
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, trade names, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property that
is owned or leased by the Borrower or any of its Subsidiaries as of the
Effective Date after giving effect to the Transactions (other than the Tower
Sale and the Additional Capital Contributions).
(d) As of the Effective Date, neither the Borrower nor any of its
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There are
-------------------------------------
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting Holdings, the Borrower or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result
100
in a Material Adverse Effect, none of Holdings, the Borrower or any Subsidiary
(i) has failed to comply with any Environmental Law or to obtain, maintain or
comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each Loan Party
------------------------------------
is in compliance with (a) all laws, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to so
comply would not have a Material Adverse Effect and (b) the terms of the PCS
Documents and all other indentures, agreements and instruments binding upon it
or its property, except, in the case of agreements, indentures and instruments
other than the PCS Documents, where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. No Loan Party
--------------------------------------
is (a) an "investment company" as defined in, or subject to regulation under,
the Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each Loan Party has filed or caused to be filed
------
all Tax returns which, to the knowledge of the Borrower are required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books reserves in accordance with GAAP or (b)
to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
101
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
------
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $1,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $1,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
-----------
all agreements, instruments and corporate or other restrictions to which any
Loan Party is subject, and all other matters known to any of them, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the
other reports, financial statements, certificates or other information furnished
by or on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contained any material misstatement of fact or omitted
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading as of the
date thereof; provided that, with respect to projected financial information,
--------
the Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries; Parents. (a) Schedule 3.12 sets forth
----------------------
the name of, and the ownership interest of the Borrower in, each Subsidiary of
the Borrower and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Effective Date. Each of the License Subsidiary and the Real
Property
102
Subsidiary is a Wholly Owned Subsidiary, and all the Capital Stock of each such
Person is directly or indirectly owned by the Borrower free and clear of any
Lien (other than Liens created by the Security Documents).
(b) As of the Effective Date, the Capital Stock of Holdings will be
owned as set forth on Schedule 3.12. As of the date hereof, to the best of the
Borrower's knowledge, AW is a Wholly Owned Subsidiary of AT&T Corp.
(c) As of the date hereof, there is not, and as of the Effective
Date, there will not be, any issued or outstanding Capital Stock or other
interest of or in Holdings, the Borrower or any of its Subsidiaries other than
as described in subsections 3.12(a) and (b). Except to the extent resulting
from a transaction after the Amendment Effective Date in compliance with the
terms hereof, all outstanding Capital Stock of each Subsidiary of the Borrower
is owned, directly or indirectly, by the Borrower or another Subsidiary, and all
outstanding Capital Stock of the Borrower, is owned by Holdings, in each case
free and clear of all Liens whatsoever (other than Liens created by the Security
Documents).
(d) All Licenses which are directly or indirectly held by the
Borrower or any of its Subsidiaries are owned, beneficially and of record by the
License Subsidiary, free and clear of all Liens (other than Liens under the
Security Documents or imposed by the Communications Act).
(e) All Real Property Assets and Real Property-Related Equipment
(other than Excluded Real Property Assets, Excluded Real Property-Related
Equipment, Secured Real Property Assets and Secured Real Property-Related
Equipment) which are directly or indirectly owned by the Borrower or any other
Loan Party are owned, beneficially and of record by the Real Property
Subsidiary, free and clear of all Liens (other than Liens under the Security
Documents or Permitted Encumbrances). At least 90% of the value of (A) the Real
Property Assets and (B) the Real Property-Related Equipment of the Borrower and
its Subsidiaries (excluding Secured Real Property Assets and Secured Real
Property-Related Equipment) are owned, beneficially and of record, free and
clear of all Liens (other than the Liens under the Security Documents) by the
Real Property Subsidiary.
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SECTION 3.13. Absence of Non-Permitted Obligations. None of the
-------------------------------------
Special Purpose Subsidiaries has any obligations or liabilities other than (a)
under the Guarantee Agreement and the Security Agreement, (b) in the case of the
Real Property Subsidiary, under any lease of real property or equipment which it
has entered into in the ordinary course of business and for taxes incurred in
the ordinary course of business which are incident to being the owner or lessee
of real property and equipment, (c) under the Special Purpose Subsidiary Funding
Agreements, (d) franchise and corporate taxes incurred in the ordinary course in
order for it to continue to maintain its existence and (e) Guarantees of the 11%
Notes and of the Subordinated Debt permitted by Section 6.01 (a)(ii) and (iii)
hereof.
SECTION 3.14. Licenses. (i) The Borrower and its Subsidiaries have
---------
the full use and benefit of all Licenses necessary to operate a System in the
Service Regions and each other area in which the Borrower or any Subsidiary
conducts a broadband personal communications services or cellular services
business, (ii) such Licenses have been duly issued by the FCC, are held by the
License Subsidiary or, in the case of Licenses acquired in the PCS C Block
Auction, the Bidding Entity and are in full force and effect and (iii) the
Borrower and its Subsidiaries are in compliance in all material respects with
all of the provisions of each such License.
SECTION 3.15. No Burdensome Restrictions. No Requirement of Law or
---------------------------
Contractual Obligation (other than, in the case of clause (b) below, any
restriction under subsection 6.08(a)) applicable to Holdings, the Borrower or
any Subsidiary could reasonably be expected to (a) have a Material Adverse
Effect or (b) limit the ability of any Subsidiary to pay dividends or to make
distributions or advances to the Borrower or any other Subsidiary.
SECTION 3.16. [Intentionally Omitted].
SECTION 3.17. Flood Insurance. To the extent reasonably available,
----------------
the Borrower has obtained for all Mortgaged Properties which are located in a
"flood hazard area", as designated in any Flood Insurance Rate Map published by
the Federal Emergency Management Agency, such
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flood insurance in such total amount as the Administrative Agent has from time
to time reasonably required.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a description of
----------
all insurance maintained by or on behalf of the Borrower and its Subsidiaries as
of the Effective Date. As of the Effective Date, all premiums in respect of
such insurance have been paid.
SECTION 3.19. Labor Matters. As of the Effective Date, there are no
--------------
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened. With such exceptions as could
not reasonably be expected to result in a Material Adverse Effect, (i) the hours
worked by and payments made to employees of the Borrower and the Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters and
(ii) all payments due from the Borrower or any Subsidiary, or for which any
claim may be made against the Borrower or any Subsidiary, on account of wages
and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or such Subsidiary.
SECTION 3.20. Solvency. Immediately after the consummation of the
---------
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
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SECTION 3.21. FCC Compliance. (a) The Borrower and each Subsidiary
---------------
are in compliance in all material respects with the Communications Act.
(b) The Borrower has no knowledge of any investigation, notice of
apparent liability, violation, forfeiture or other order or complaint issued by
or before the FCC, or of any other proceedings (other than proceedings relating
to the wireless communications industries generally) of or before the FCC, which
could reasonably be expected to have a Material Adverse Effect.
(c) No event has occurred which (i) results in, or after notice or
lapse of time or both would result in, revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of, or order
of forfeiture with respect to, any License in any respect which could reasonably
be expected to have a Material Adverse Effect or (ii) affects or could
reasonably be expected in the future to affect any of the rights of the Borrower
or the License Subsidiary under any License held by the Borrower or the License
Subsidiary in any respect which could reasonably be expected to have a Material
Adverse Effect.
(d) The Borrower and the License Subsidiary have duly filed in a
timely manner all material filings, reports, applications, documents,
instruments and information required to be filed by it under the Communications
Act, and all such filings were when made true, correct and complete in all
material respects.
(e) The Borrower has no reason to believe that each License of the
Borrower or any Subsidiary will not be renewed in the ordinary course.
SECTION 3.22. Security Documents. (a) The Pledge Agreement is
-------------------
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable security interest
in the Collateral (as defined in the Pledge Agreement) and, when the Collateral
is delivered to the Administrative Agent, the Pledge Agreement shall create a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgors thereunder in such Collateral, in each case
prior and superior in right to any other Person.
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(b) The Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to the Perfection Certificate, as updated
by the Borrower from time to time in accordance with Section 5.03, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property, as defined in the Security Agreement), in
each case prior and superior in right to any other Person, other than with
respect to Liens expressly permitted by Section 6.02. Following an Event of
Default, the Borrower's rights under the PCS Documents (other than the
Stockholders Agreement) will be enforceable by the Lenders; provided, however,
-------- -------
that the Administrative Agent shall not assign the Network Licensing Agreement
to a third party without first obtaining AW's consent.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, and, with respect
to Collateral in which a security interest cannot be perfected by such filings,
upon the filing of the financing statements referred to in paragraph (b) above,
the Security Agreement and such financing statements shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other Person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the grantors after the date hereof).
(d) The Mortgages are effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all of the Borrower's right, title and interest in
and to the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.22, the Mortgages
shall constitute
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a fully perfected Lien on, and security interest in, all right, title and
interest of the Borrower in such Mortgaged Property and the proceeds thereof, in
each case prior and superior in right to any other Person, other than with
respect to the rights of Persons pursuant to Liens expressly permitted by
Section 6.02.
SECTION 3.23. Copyrights, Trademarks, etc. The Borrower and the
----------------------------
Subsidiaries own, or are licensed to use, all copyrights, trademarks, trade
names, patents, technology, know-how and processes, service marks and rights
with respect to the foregoing that are (a) used in or necessary for the conduct
of their respective businesses as currently conducted and (b) material to the
business, assets, operations, properties, prospects or condition (financial or
otherwise) of the Borrower and the Subsidiaries taken as a whole. The use of
such copyrights, trademarks, trade names, patents, technology, know-how and
processes, service marks and rights with respect to the foregoing by the
Borrower and the Subsidiaries does not infringe in any material respect on the
rights of any Person.
SECTION 3.24. Federal Regulations. No part of the proceeds of any
--------------------
Loans will be used in any manner which would result in a violation of Regulation
U or X of the Board as now and from time to time hereafter in effect or to buy
or carry "margin stock" (as defined thereunder) or to refinance any Indebtedness
incurred for such purpose.
SECTION 3.25. Assets and Business of Holdings.
--------------------------------
(a) As of the date hereof Holdings has, and as of the Effective Date
Holdings will have, no assets other than (i) the Capital Stock of the Borrower,
(ii) contract rights under the Securities Purchase Agreement and (iii) rights
under the Stockholders Agreement.
(b) Holdings is engaged in no business other than the holding of such
assets and, to the extent permitted hereunder, Capital Stock of Unrestricted
Subsidiaries and the incurrence of debt permitted under Section 6.01(a).
SECTION 3.26. Year 2000. The Borrower is implementing a plan
----------
pursuant to which it will complete any systems certifications and related
upgrades or replacements
108
("Systems Certifications") required to permit the proper functioning, in and
----------------------
following the year 2000, of the Borrower's and its Subsidiaries' computer
systems and equipment containing embedded microchips (including systems and
equipment supplied by others or with which the Borrower's and its Subsidiaries'
systems interface) and the testing of all such systems and equipment, as so
certified, upgraded and replaced, on or prior to October 31, 1999. The Borrower
believes that the cost to the Borrower and the Subsidiaries of such Systems
Certifications and testing and of the reasonably foreseeable consequences of
year 2000 to the Borrower and the Subsidiaries (including, without limitation,
errors in Systems Certifications and the failure of others' systems or
equipment) will not result in a Default or a Material Adverse Effect. The
Borrower believes that except for such of the Systems Certifications referred to
in the preceding sentence as may be necessary, the computer and management
information systems of the Borrower and the Subsidiaries are and, with ordinary
course upgrading and maintenance, will continue for the term of this Agreement
to be, sufficient to permit the Borrower and the Subsidiaries to conduct their
business without Material Adverse Effect.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
---------------
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion or opinions (addressed to the Administrative Agent and the Lenders
and dated the
109
Effective Date) of (i) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
counsel for the Borrower, which when taken together will be substantially
in the form of Exhibit B-1 and (ii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special counsel to
the Borrower with respect to FCC matters, substantially in the form of
Exhibit B-2 and, in the case of each such opinion required by this
paragraph, covering such other matters relating to the Loan Parties, the
Loan Documents or the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received (i) a certificate of
the Secretary or Assistant Secretary of the Borrower and each Subsidiary
Loan Party dated the Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws, operating agreement or
partnership agreement of such Loan Party as in effect on the Effective Date
and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors (or
equivalent governing body), members or partners of the Borrower and each
Subsidiary Loan Party authorizing the execution, delivery and performance
of the Loan Documents to which such Person is a party and, in the case of
the Borrower, the borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, and
(C) as to the incumbency and specimen signature of each officer or partner
of the Borrower (or its general partner) and any Subsidiary Loan Party
executing any Loan Document on behalf of such Loan Party; (ii) a
certificate of another officer as to the incumbency and specimen signature
of the Secretary or Assistant Secretary executing the certificate pursuant
to (i) above; and (iii) such other documents as the Lenders or Cravath,
Swaine & ▇▇▇▇▇, counsel for the Administrative Agent, may reasonably
request.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
110
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by any Loan Party hereunder or under any
other Loan Document.
(f) Special Purpose Subsidiaries. The Borrower shall have
-----------------------------
transferred to a Real Property Subsidiary all Real Property Assets and Real
Property-Related Equipment other than (A) Real Property Assets constituting
rights under leases that as of the date hereof prohibit such transfer
(without regard to any such prohibition which contains exceptions if the
obligations under the applicable lease were to be assumed by the Borrower
or its Subsidiaries or if the Borrower or its Subsidiaries were to take
other actions which are reasonably within their power to take ("Restricted
Real Property Assets")) and (B) equipment which constitutes a fixture to
any Restricted Real Property Asset ("Restricted Real Property-Related
Equipment") but in any event the Borrower shall have so transferred assets
constituting at least 90% of the value of all Real Property Assets and Real
Property-Related Equipment of the Borrower and its Subsidiaries (excluding
Secured Real Property Assets and Secured Real Property-Related Equipment)
as of the date hereof and provided evidence reasonably satisfactory to the
Administrative Agent of the transfers described above and each of the Real
Property Subsidiary and the License Subsidiary shall have entered into
Special Purpose Subsidiary Funding Agreements with the Borrower.
(g) The Pledge Agreement shall have been duly executed by the parties
thereto, shall have been delivered to the Administrative Agent and shall be
in full force and effect, and all the outstanding (i) intercompany
Indebtedness owed to any Loan Party by the Borrower or any Subsidiary and
(ii) equity interests that are owned by the Borrower or any Subsidiary Loan
Party (in each case as of the Effective Date after giving effect to the
111
Transactions) (A) shall have been duly and validly pledged thereunder to
the Administrative Agent for the ratable benefit of the Secured Parties,
and (B) certificates representing such equity interests (except that such
certificates representing equity interests in a Foreign Subsidiary may be
limited to 65% of the outstanding shares of such partnership interests or
equity interests in such Foreign Subsidiary) and promissory notes
evidencing such intercompany Indebtedness shall be in the actual possession
of the Administrative Agent, accompanied by stock powers or other
instruments of transfer, endorsed in blank, with respect to such
certificates and such promissory notes.
(h) The Security Agreement shall have been duly executed by the
parties thereto, shall have been delivered to the Administrative Agent and
shall be in full force and effect, and all documents and instruments,
including Uniform Commercial Code financing statements, required by law or
reasonably requested by the Administrative Agent to be filed, registered or
recorded to create or perfect the Liens intended to be created under the
Security Agreement shall have been delivered to the Administrative Agent.
(i) The Administrative Agent shall have received a completed
Perfection Certificate (giving effect to the Transactions) dated the
Effective Date and signed by an executive officer or Financial Officer of
the Borrower, together with all attachments contemplated thereby, including
the results of a search of the Uniform Commercial Code (or equivalent)
filings made with respect to the Borrower and the Subsidiary Loan Parties
in the jurisdictions contemplated by the Perfection Certificate and copies
of the financing statements (or similar documents) disclosed by such search
and evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents) are
permitted by Section 6.02 or have been released.
(j) The Guarantee Agreement shall have been duly executed by the
Subsidiary Loan Parties and the Administrative Agent, shall have been
delivered to the Administrative Agent and shall be in full force and
effect.
112
(k) The Indemnity, Subrogation and Contribution Agreement shall have
been duly executed by the parties thereto, shall have been delivered to the
Administrative Agent and shall be in full force and effect.
(l) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect.
(m) The Administrative Agent shall have received from the Borrower a
photocopy, certified to be true and complete, of its Licenses for the BTAs
listed in Schedule 3.14 and such Licenses shall be owned by the Borrower
free and clear of all Liens other than liens imposed by the Communications
Act.
(n) The Administrative Agent shall have received from the Borrower
conformed copies, certified and true and complete, of (i) the Securities
Purchase Agreement, (ii) the Network License Agreement, (iii) the
Stockholders Agreement, (iv) the Roaming Agreement, (v) the Resale
Agreement (unexecuted) and (vi) the Special Purpose Subsidiary Funding
Agreements. Each of the agreements referred to in the previous sentence
(other than the Resale Agreement) shall have been duly executed and
delivered on behalf of each party thereto, shall have been duly authorized
thereby, and shall constitute a legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms, subject
to the effects of bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity
or at law); and the Borrower shall have delivered to the Lenders a
certificate of a Responsible Officer as to the accuracy of the foregoing.
(o) To the extent not expressly contemplated in the final form of
Securities Purchase Agreement or the final form of Restated Certificate of
Incorporation delivered to the Administrative Agent prior to October 8,
1997, the Administrative Agent shall be satisfied with (i) the corporate
and capital structure of the
113
Borrower and its subsidiaries, (ii) the contributions to the Borrower's
equity and (iii) all legal, tax and accounting matters related to the
formation, capitalization and operations of the Borrower.
(p) The Borrower shall have entered into or, with respect to the
Qualified Vendor Agreement, will enter into by April 15, 1998, (i) supply
contracts with vendors for the build out of the Network and the acquisition
of related equipment, and, to the extent material, such contracts shall be
reasonably satisfactory to the Lenders and (ii) such other agreements with
third parties as may be reasonably necessary to the conduct of its proposed
operations in accordance with its business plan.
(q) The Borrower shall have received all scheduled cash capital
contributions set forth on Schedule I to the Securities Purchase Agreement,
including contributions of $45,000,000 in cash on or prior to the Effective
Date as set forth therein.
(r) Each of Holdings, the Borrower, AW and the other parties thereto
shall have executed and delivered to the Administrative Agent consents to
assignment ("Consents to Assignment") to the Administrative Agent for the
benefit of the Secured Parties, in form and substance satisfactory to the
Administrative Agent, with respect to the Securities Purchase Agreement,
the Network License Agreement and such of the other PCS Documents as are
requested by the Administrative Agent; provided, however, that the Consent
-------- -------
to Assignment with respect to AW shall be set forth in the Network License
Agreement and, with respect to the Network License Agreement, such Consent
to Assignment will not permit the Administrative Agent to assign the
Network License Agreement to any Person other than the Lenders without
first obtaining AW's consent.
(s) The terms and conditions of any Subordinated Debt, if any, and
the provisions of the Subordinated Debt Documents, if any, shall be
satisfactory to the Lenders and the Administrative Agent shall have
received copies of any Subordinated Debt Documents, if any, certified by a
Responsible Officer as complete and correct.
114
(t) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions
shall have been obtained, and all applicable waiting periods and appeal
periods shall have expired or, with respect to the consent of the FCC to
the License Transfer (as defined in the Securities Purchase Agreement) a
Final Order (as defined in the Securities Purchase Agreement) shall have
been obtained, in each case without the imposition of any burdensome
conditions and there shall be no governmental or judicial action, actual or
threatened, that could reasonably be expected to restrain, prevent or
impose burdensome conditions on the Transactions. To the extent
contemplated by the terms of this Agreement and the Securities Purchase
Agreement, the Transactions shall have been, or substantially
simultaneously with the initial funding of Loans on the Effective Date
shall be, consummated in accordance with the PCS Documents and applicable
law, without any amendment to or waiver of any material terms or conditions
of the PCS Documents not approved by the Required Lenders. The
Administrative Agent shall have received copies of the PCS Documents and
all certificates, opinions and other documents delivered thereunder,
certified by a Responsible Officer as complete and correct and the PCS
Documents shall contain no material changes adverse to the interests of the
Lenders compared to the final form of such documents delivered to the
Administrative Agent prior to October 8, 1997.
(u) The Lenders shall have received pro forma consolidated balance
sheets of the Borrower and Holdings as of October 31, 1997, reflecting all
pro forma adjustments as if the Transactions had been consummated on such
date, and such pro forma consolidated balance sheets shall be consistent in
all material respects with the projections and other information previously
provided to the Lenders. After giving effect to the Transactions, neither
Holdings, the Borrower nor any of their Subsidiaries shall have outstanding
any shares of preferred stock or any Indebtedness, other than (i)
Indebtedness incurred under the Loan Documents, (ii) the Subordinated Debt
and (iii) preferred stock issued to AW and the other equity investors
listed on Schedules I and II to the
115
Securities Purchase Agreement pursuant to the terms of the Securities
Purchase Agreement.
(v) The Administrative Agent shall have received from the Borrower
(i) the financial statements referred to in Section 3.04 and (ii) a
certificate dated the Effective Date and duly executed by a Responsible
Officer of the Borrower certifying that attached thereto is the annual
budget of the Borrower for the fiscal year ending December 31, 1998 as well
as a 10-year business plan of the Borrower satisfactory to the
Administrative Agent with quarterly projections for at least the two-year
period following the Effective Date.
(w) There shall have been no material adverse change in the business,
assets, results of operations, properties, prospects or financial condition
of the Borrower and the Subsidiaries, taken as a whole, or of Holdings
since October 31, 1997.
(x) Holdings and the Borrower shall be in Pro Forma Compliance.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on the
date hereof (and, in the event such conditions are not so satisfied or waived,
the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
------------------
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
116
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects on
and as of the date of such Borrowing or the date of issuance, extension or
renewal of such Letter of Credit, as applicable, except with respect to
representations and warranties expressly made only as of the Effective Date
or any other specified date which shall be true in all material respects as
of such date.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, extension or renewal of a Letter of Credit, as
applicable, no Default shall have occurred and be continuing and the
Borrower shall be in Pro Forma Compliance.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. Each of
-------------------------------------------
Holdings and the Borrower will furnish to the Administrative Agent and each
Lender:
(a) within 90 days after the end of each fiscal year its audited
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by PriceWaterhouseCoopers L.L.P. or other
independent public accountants of recognized national standing (without a
"going concern" or like qualification or
117
exception and without any qualification or exception as to the scope of
such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of the end
of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet,
as of the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether, to his knowledge after due inquiry,
a Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with respect
thereto, (ii) setting forth reasonably detailed calculations demonstrating
compliance with Sections 6.08 and 6.12 and (iii) stating whether any change
in GAAP or in the application thereof has occurred since the date of the
Borrower's audited financial statements referred to in Section 3.04 and, if
any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such
118
financial statements of any Default (which certificate may be limited to
the extent required by accounting rules or guidelines);
(e) no more than 45 days after the commencement of each fiscal year, a
detailed consolidated budget for such fiscal year, broken down by fiscal
quarters (including (i) a projected summary statement of operations, (ii) a
projected statement of capital expenditures and (iii) a projected statement
of Indebtedness, as of the end and for each such fiscal quarter) and,
promptly when available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Holdings, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, as
the case may be;
(g) on an annual basis, a copy of the projections as to the
performance of Holdings (excluding any Unrestricted Subsidiaries) and the
Borrower, presented in a manner consistent with the projections in the
Information Memorandum for the period from the date of the most recent
balance sheet included in the financial statements delivered pursuant to
(a) above through the last day of the fiscal year in which the Tranche B
Maturity Date occurs, such projections to be accompanied by a certificate
of a Responsible Officer of the Borrower to the effect that such
projections have been prepared using assumptions believed in good faith by
the management of the Borrower to be reasonable as of the date of such
certificate (which shall be subsequent to the date of the most recent
balance sheet included in such financial statements);
(h) within 30 days after the end of each calendar month ending on or
prior to December 31, 2000, a certificate of a Responsible Officer setting
forth (A) the aggregate number of Subscribers at the end of the calendar
month preceding such calendar month and (B) the aggregate number of
Subscribers at the end of such calendar month;
119
(i) within 30 days after the end of each fiscal quarter, a certificate
of a Responsible Officer setting forth (A) the aggregate number of
Subscribers whose service terminated during such fiscal quarter, (B) the
aggregate number of Subscribers added during such fiscal quarter and (C)
the revenue and system build information listed on Schedule 5.01(i);
(j) within ten Business Days after the same are sent, a copy of any
financial statement, report or notice which Holdings, the Borrower or any
Subsidiary sends to any Person under or pursuant to or in connection with
the Securities Purchase Agreement, the Network License Agreement, the
Stockholders Agreement, the Roaming Agreement, the Resale Agreement, or any
other PCS Document, the Tower Sale Asset Purchase Agreement or the
commitment letters or definitive documentation for the Additional Capital
Contributions, in each case if such statement, report or notice relates to
an event that has resulted or could reasonably be expected to result in an
Event of Default or a Material Adverse Effect; and, within five Business
Days after the same are received by Holdings, the Borrower or any
Subsidiary, copies of all notices sent to any such Person under or pursuant
to or in connection with any such agreement or instrument which notice
relates to an event that has resulted or could reasonably be expected to
result in an Event of Default or a Material Adverse Effect;
(k) concurrently with any delivery of financial statements under
clause (a) or (b) above, a balance sheet and related statements of
operations, stockholders' equity and cash flows for each Unrestricted
Subsidiary for the applicable period (each of which may be unaudited); and
(l) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, or such consolidating financial statements, or such
financial statements showing the results of operations of any Unrestricted
Subsidiary, as the Administrative Agent or any Lender may reasonably
request.
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SECTION 5.02. Notices of Material Events. Upon a Responsible Officer
---------------------------
having knowledge of the following, the Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting
Holdings, the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower
---------------------------------
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's legal name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or legal structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. The Borrower agrees not to
effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative Agent to
121
continue at all times following such change to have a valid, legal and perfected
security interest in all the Collateral.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer of the Borrower (i) setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming that there has
been no change in such information since the date of the Perfection Certificate
delivered on the Effective Date or the date of the most recent certificate
delivered pursuant to this Section and (ii) certifying that all Uniform
Commercial Code financing statements (including fixture filings, as applicable)
or other appropriate filings, recordings or registrations, including all
refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above
to the extent necessary to protect and perfect the security interests under the
Security Agreement for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Holdings and the
-------------------------------
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
--------
consolidation, liquidation or dissolution permitted under Section 6.04.
SECTION 5.05. Payment of Obligations. Holdings and the Borrower
-----------------------
will, and will cause each of its Subsidiaries to, pay its material Indebtedness
and other obligations, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books reserves with respect
122
thereto in accordance with GAAP, (c) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing
such obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Holdings and the Borrower
--------------------------
will, and will cause each of its Subsidiaries to, maintain (i) all property
necessary to the conduct of its business in good working order and condition
with such exceptions as would not have a Material Adverse Effect and (ii) its
accounting, software and billing systems and controls at a level consistent with
the standards of other reputable wireless services providers and reasonably
required in connection with the Borrower's business.
SECTION 5.07. Insurance. Holdings and the Borrower will, and will
----------
cause each of its Subsidiaries to, maintain, with financially sound and
reputable insurance companies insurance on all its property in at least such
amounts and against at least such risks as are usually insured against by
companies engaged in the same or a similar business in the same or similar
locations, and furnish to the Administrative Agent, upon written request, full
information as to the insurance carried.
SECTION 5.08. Casualty and Condemnation. (a) Holdings and the
--------------------------
Borrower will furnish to the Administrative Agent and the Lenders prompt written
notice of any casualty or other insured damage to any material portion of any
Collateral or the commencement of any action or proceeding for the taking of any
material portion of the Collateral under power of eminent domain or by
condemnation or similar proceeding.
(b) If any event described in paragraph (a) of this Section results
in Net Proceeds (whether in the form of insurance proceeds, condemnation award
or otherwise), the Administrative Agent is authorized to collect such Net
Proceeds and, if received by Holdings, the Borrower or any Subsidiary, such Net
Proceeds shall be paid over to the Administrative Agent; provided that (i) if
--------
the aggregate Net Proceeds in respect of such event (other than proceeds of
business income insurance) are less than $3,000,000, such Net Proceeds shall be
paid over to the Borrower unless a Default has occurred and is continuing, and
(ii) all
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proceeds of business income insurance shall be paid over to the Borrower unless
a Default has occurred and is continuing. All such Net Proceeds retained by or
paid over to the Administrative Agent shall be held by the Administrative Agent
and released from time to time to pay the costs of repairing, restoring or
replacing the affected property in accordance with the terms of the applicable
Security Document, subject to the provisions of the applicable Security Document
regarding application of such Net Proceeds during a Default.
(c) If any Net Proceeds retained by or paid over to the
Administrative Agent as provided above continue to be held by the Administrative
Agent on the date that is 270 days after the occurrence of the event resulting
in such Net Proceeds, then such Net Proceeds shall be applied to prepay
Borrowings as provided in Section 2.09(b).
SECTION 5.09. Books and Records; Inspection and Audit Rights.
-----------------------------------------------
Holdings and the Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which entries which are accurate and
complete in all material respects are made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each
of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as reasonably
requested.
SECTION 5.10. Compliance with Laws. Holdings and the Borrower will,
---------------------
and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect and to
comply in all material respects with all of its material Contractual Obligations
(including obligations under any License).
SECTION 5.11. Use of Proceeds. The proceeds of the Loans, together
----------------
with the proceeds of the Initial Equity Contributions and the Subordinated Debt,
if any, will be
124
used only to fund capital expenditures related to the construction of the
Network, the acquisition of Related Businesses (including acquisitions permitted
by Section 6.05(m)), working capital needs of the Borrower, the investment in
the Bidding Entity permitted by Section 6.05(i) and subscriber acquisition
costs. No part of the proceeds of any Loan will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations
of the Board, including Regulations U and X.
SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary
------------------------
is formed or acquired after the Effective Date, the Borrower will notify the
Administrative Agent and the Lenders thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to the Pledge Agreement (if such Subsidiary owns capital stock or intercompany
Indebtedness), the Security Agreement, the Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement as contemplated under each
agreement, within three Business Days after such Subsidiary is formed or
acquired and promptly take such actions to create and perfect Liens on such
Subsidiary's assets to secure the Obligations as the Administrative Agent or the
Required Lenders shall reasonably request and (b) if any shares of capital stock
or Indebtedness of such Subsidiary are owned by or on behalf of any Loan Party,
the Borrower will cause such shares and promissory notes evidencing such
Indebtedness to be pledged pursuant to the Pledge Agreement within three
Business Days after such Subsidiary is formed or acquired (except that, if such
Subsidiary is a Foreign Subsidiary, shares of common stock of such Subsidiary to
be pledged pursuant to the Pledge Agreement may be limited to 65% of the
outstanding shares of common stock of such Subsidiary).
SECTION 5.13. Further Assurances. (a) Holdings and the Borrower
-------------------
will, and will cause each Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to effectuate the transactions contemplated by
the Loan Documents or to
125
grant, preserve, protect or perfect the Liens created or intended to be created
by the Security Documents or the validity or priority of any such Lien, all at
the expense of the Loan Parties. The Borrower also agrees to provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority of
the Liens created or intended to be created by the Security Documents (including
opinions of local counsel in the jurisdictions in which assets of any Loan Party
are located).
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Loan Party (other than assets held by Holdings in or through an Unrestricted
Subsidiary) after the Effective Date (other than assets constituting Collateral
under the Security Documents that become subject to the Lien of the Security
Documents upon acquisition thereof), the Borrower will notify the Administrative
Agent and the Lenders thereof, and, if requested by the Administrative Agent or
the Required Lenders, the Borrower will cause such assets to be subjected to a
Lien securing the Obligations and will take, and cause the Loan Parties to take,
such actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Borrower. In addition, if (i)
any License is acquired by the Borrower or any Subsidiary (other than the
License Subsidiary) the Borrower will promptly transfer or cause the transfer to
the License Subsidiary of such License, (ii) any Real Property Assets (other
than Restricted Real Property Assets, Secured Real Property Assets and Excluded
Real Property Assets) or any Real Property-Related Equipment (other than
Restricted Real Property-Related Equipment, Secured Real Property-Related
Equipment and Excluded Real Property Equipment) is acquired by the Borrower or
any Subsidiary or with respect to the leasehold in ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, Triton Management Company Inc. ("Triton Management")
-----------------
(other than the Real Property Subsidiary) the Borrower will promptly transfer or
cause the transfer of such assets to the Real Property Subsidiary and (iii) any
fee interests in real property having at the time of acquisition thereof a
purchase price or fair market value greater than $1,000,000 (a "Mortgaged
---------
Property") are acquired by the Borrower or
--------
126
any Subsidiary after the date hereof (including Mortgaged Properties of any
Person that becomes a Subsidiary or is merged with or into or consolidated with
the Borrower or any Subsidiary) the Borrower will promptly create or cause to be
created a first priority perfected Mortgage in favor of the Administrative Agent
for the benefit of the Secured Parties on, and pay all recording taxes, title
insurance costs, survey costs and other costs in connection with such Mortgage.
SECTION 5.14. Interest Rate Protection. As promptly as practicable,
-------------------------
and in any event within 90 days after the Effective Date, the Borrower will
enter into, and thereafter until the final maturity of all the Loans, will
maintain in effect, one or more interest rate protection agreements with one or
more Lenders on such terms as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest
cost to the Borrower with respect to at least 50% of the outstanding
Indebtedness (other than Deeply Subordinated Debt) of the Borrower at a maximum
rate reasonably acceptable to the Administrative Agent (it being understood that
outstanding Indebtedness of the Borrower that bears interest at a fixed rate,
including the 11% Notes and any Subordinated Debt issued pursuant to Section
6.01(a)(iii) hereof but excluding any Deeply Subordinated Debt shall be
considered Indebtedness fixed at a maximum rate reasonably acceptable to the
Administrative Agent.
SECTION 5.15. License Drop Down. As promptly as practicable, and in
------------------
any event within 90 days after the Effective Date, the Borrower shall contribute
to the License Subsidiary all Licenses owned by the Borrower (including the
Licenses for the BTAs listed in Schedule 3.14) and the License Subsidiary shall
own such Licenses free and clear of all Liens (other than Liens imposed by the
Communications Act).
SECTION 5.16. Business of Holdings; Immediate Contributions to the
----------------------------------------------------
Borrower. (a) Holdings shall not engage in any business other than holding the
---------
Capital Stock of the Borrower and any Unrestricted Subsidiary and issuing
Indebtedness permitted by Section 6.01.
(b) Holdings shall cause the management, business and affairs of each
of Holdings, the Subsidiaries and the Unrestricted Subsidiaries to be conducted
in such a
127
manner so that each of Holdings and the Unrestricted Subsidiaries will be
perceived as a legal entity separate and distinct from one another and the
Subsidiaries.
(c) Holdings shall immediately contribute to the Borrower upon receipt
(i) any cash capital contributions (other than those permitted to be contributed
to an Unrestricted Subsidiary pursuant to clause (vii) of the definition of
"Unrestricted Subsidiary" and those received in connection with the Equity
Swap), (ii) any cash dividends or any other cash distributions paid or made by,
and received from, any Unrestricted Subsidiary and (iii) the net proceeds of the
issuance of any Indebtedness.
SECTION 5.17. Execution of Other Agreements. By April 15, 1998, the
------------------------------
Borrower (or a wholly owned Subsidiary) and the other parties thereto will enter
into the Qualified Vendor Agreement and deliver copies thereof to the
Administrative Agent.
SECTION 5.18. Notification of Acquisition of Additional Licenses. As
---------------------------------------------------
promptly as practicable, and in any event within 5 days after acquisition of any
License, the Borrower shall notify the Administrative Agent of the acquisition
of such License.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Holdings and the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) Holdings
----------------------------------------
and the Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the 11% Notes;
128
(iii) Subordinated Debt (other than Subordinated Debt permitted by
clause (ii) or (iv) hereof) in an aggregate principal amount not to exceed
$150,000,000 less the aggregate principal amount of any Incremental Term
Loans outstanding; provided that the proceeds of such Subordinated Debt
shall be used by the Borrower solely to fund the build-out of the Network;
(iv) Deeply Subordinated Debt issued pursuant to the Additional
Capital Contribution Commitments in an aggregate principal amount not to
exceed $25,000,000;
(v) Indebtedness of the Borrower to any Subsidiary (other than any
Special Purpose Subsidiary) and of any Subsidiary (other than any Special
Purpose Subsidiary) to the Borrower or any other Subsidiary (other than any
Special Purpose Subsidiary); provided that Indebtedness of any Subsidiary
--------
that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall
be subject to Section 6.05;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary
(other than any Special Purpose Subsidiary) and by any Subsidiary (other
than any Special Purpose Subsidiary) of Indebtedness of the Borrower or any
other Subsidiary (other than any Special Purpose Subsidiary); provided that
--------
Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of
any Subsidiary that is not a Loan Party shall be subject to Section 6.05;
(vii) Indebtedness of the Borrower or any Subsidiary (other than a
Special Purpose Subsidiary) incurred to finance the acquisition from a
Qualified Vendor or other equipment vendor reasonably acceptable to the
Administrative Agent of cellular equipment and ancillary services required
for the buildout of the Network pursuant to a purchase agreement between
Triton PCS Equipment Company, L.L.C. and such Qualified Vendor to be
entered into by April 15, 1998 (the "Qualified Vendor Agreement") or a
--------------------------
purchase agreement with such other equipment vendor; provided that the
--------
aggregate principal amount of such Indebtedness shall not exceed $65
million at any time outstanding;
129
(viii) Capital Lease Obligations of the Borrower or any Subsidiary
(other than any Special Purpose Subsidiary) incurred (i) in connection with
the Tower Sale pursuant to the Tower Sale Asset Purchase Agreement or (ii)
pursuant to the Build-to-Suit Agreement (as defined in the Tower Sale Asset
Purchase Agreement);
(ix) Indebtedness (other than Indebtedness described in (vii) or
(viii) above) of the Borrower or any Subsidiary (other than any Special
Purpose Subsidiary) incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier maturity date or decreased weighted average life
thereof; provided that such Indebtedness is incurred prior to or within 90
--------
days after such acquisition or the completion of such construction or
improvement and shall not exceed $20,000,000 in aggregate principal amount
at any time outstanding;
(x) Indebtedness incurred to refinance any senior secured
Indebtedness; provided that (x) such refinancing Indebtedness (a) shall not
--------
have a greater outstanding principal amount, an earlier maturity date or a
decreased weighted average life than the Indebtedness refinanced (b) shall
be subordinated to the Indebtedness created under the Loan Documents to at
least the extent of, and shall otherwise be issued on terms no less
favorable to the Lenders than, the Subordinated Debt and (y) the proceeds
of such Indebtedness shall be used solely to repay the senior secured
Indebtedness refinanced thereby and fees and expenses in connection
therewith;
(xi) to the extent that the accrual of dividends with respect to the
Series A Preferred Stock would be considered Indebtedness, the accrual of
dividends with respect to such Series A Preferred Stock; provided that no
--------
dividends may be paid in respect thereof under
130
any circumstances prior to the date that is six months after the Tranche B
Maturity Date;
(xii) the lease by Triton Management of the property located at ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇; and
(xiii) other unsecured Indebtedness of the Borrower and the
Subsidiaries (other than any Special Purpose Subsidiary); provided that the
--------
aggregate principal amount of such Indebtedness shall not exceed $5,000,000
at any time outstanding.
(b) Holdings and the Borrower will not, and will not permit any
Subsidiary to, issue any preferred stock (other than (i) preferred stock of
Holdings issued pursuant to the terms of the Securities Purchase Agreement and
the Preferred Stock Agreement and (ii) preferred stock issued to Holdings or
Persons (or Affiliates thereof) owning capital stock of Holdings on the
Effective Date) or be or become liable in respect of any obligation (contingent
or otherwise) to purchase, redeem, retire, acquire or make any other payment in
respect of any shares of capital stock of Holdings, the Borrower or any
Subsidiary or any option, warrant or other right to acquire any such shares of
capital stock, except for the obligation of Holdings to repurchase unvested
rights to Common Stock in an amount not to exceed $2,000 in the aggregate. No
preferred stock issued by Holdings, the Borrower or any Subsidiary shall be
mandatorily redeemable or subject to mandatory purchase by the Borrower or any
Subsidiary, and no dividends may be paid (it being understood that dividends may
accrue) in respect thereof, under any circumstances prior to November 4, 2007.
SECTION 6.02. Liens. Holdings and the Borrower will not, and will
------
not permit any Subsidiary to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
131
(iii) any Lien on any property or asset of the Borrower or any
Subsidiary (other than the License Subsidiary or the Real Property
Subsidiary) existing on the date hereof and set forth in Schedule 6.02;
provided that (A) such Lien shall not apply to any other property or asset
--------
of the Borrower or any Subsidiary and (B) such Lien shall secure only those
obligations which it secures on the date hereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
--------
(A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (B)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be;
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (A) such security
--------
interests secure Indebtedness permitted by clause (ix) of Section 6.01(a),
(B) such security interests and the Indebtedness secured thereby are
incurred prior to or within 180 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring, constructing
or improving such fixed or capital assets and (D) such security interests
shall not apply to any other property or assets of the Borrower or any
Subsidiary;
(vi) Liens on assets leased to the Borrower or any Subsidiary pursuant
to the Tower Sale Asset Purchase Agreement; provided, that such security
interests shall not apply to any other property or assets of the Borrower
or any Subsidiary;
(vii) Liens on assets acquired from a Qualified Vendor or other
equipment vendor reasonably acceptable to the Administrative Agent securing
Indebtedness
132
permitted by clause (vii) of Section 6.01(a) incurred to finance the
acquisition of such assets; provided, however, that (i) such Qualified
-------- -------
Vendor or other equipment vendor reasonably acceptable to the
Administrative Agent and the Collateral Agent, on behalf of the Secured
Parties, enter into an intercreditor agreement or joint security agreement
providing for the sharing of the security interest in such assets on terms
satisfactory to the Administrative Agent and (ii) the Borrower or a wholly
owned Subsidiary has title to such assets; and
(viii) Liens on the Capital Stock of Unrestricted Subsidiaries.
SECTION 6.03. Sale and Lease-Back Transactions. The Borrower will
---------------------------------
not, nor will it permit any Subsidiary to, enter into any arrangement, directly
or indirectly, with any Person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose as the property being sold or
transferred, other than the Tower Sale.
SECTION 6.04. Fundamental Changes. (a) Holdings and the Borrower
--------------------
will not, and will not permit any Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Subsidiary (other than a License Subsidiary or a Real
Property Subsidiary) may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary (other than a License
Subsidiary or a Real Property Subsidiary) may merge into any Subsidiary (other
than the License Subsidiary or the Real Property Subsidiary) in a transaction in
which the surviving entity is a Wholly Owned Subsidiary, (iii) any Subsidiary
(other than a License Subsidiary or a Real Property Subsidiary) may liquidate or
dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders and (iv) the
133
Bidding Entity may merge with or into any License Subsidiary in a transaction in
which a Wholly Owned License Subsidiary is the surviving corporation.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted or contemplated to be conducted by the Borrower and its Subsidiaries
on the Amendment Effective Date and Related Businesses.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions. The Borrower will not, and will not permit any of its
-------------
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a Wholly Owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on February 3, 1998, to the extent such
investments would not be permitted under any other clause of this Section;
(c) investments by the Borrower and its Subsidiaries (other than the
License Subsidiary or the Real Property Subsidiary) in the capital stock of
their Subsidiaries; provided that any such shares of capital stock held by
--------
a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to
the limitations applicable to common stock of a Foreign Subsidiary referred
to in Section 5.12) and no investments may be made in Subsidiaries that are
not Loan Parties;
(d) loans or advances made by the Borrower to any Subsidiary and made
by any Subsidiary to the Borrower or any other Subsidiary; provided that
--------
any such loans and advances made by a Loan Party shall be evidenced by a
promissory note pledged pursuant to the Pledge
134
Agreement and no loans or advances may be made to Subsidiaries that are not
Loan Parties;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that a Subsidiary shall not Guarantee any Subordinated Debt unless
--------
(A) such Subsidiary also has Guaranteed the Obligations pursuant to the
Guarantee Agreement, (B) such Guarantee of Subordinated Debt is
subordinated to such Guarantee of the Obligations on terms no less
favorable to the Lenders than the subordination provisions of the
Subordinated Debt and (C) such Guarantee of Subordinated Debt provides for
the release and termination thereof, without action by any party, upon any
release and termination of such Guarantee of the Obligations;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) (i) the purchase of assets contemplated by the Myrtle Asset
Purchase Agreement (without giving effect to any amendments to or waivers
of the Myrtle Asset Purchase Agreement (other than such amendments or
waivers that are not adverse in a material respect to the interests of the
Lenders)) and (ii) the purchase of assets contemplated by the Norfolk Asset
Purchase Agreement (without giving effect to any amendments to or waivers
of the Norfolk Asset Purchase Agreement (other than such amendments or
waivers that are not adverse in a material respect to the interests of the
Lenders));
(h) the acquisition of the AW Swap Licenses in connection with the
consummation of the AW Pops Swap;
(i) the investment of up to $2,800,000 in the Bidding Entity; provided
that (i) all Capital Stock and debt securities of the Bidding Entity owned
by a Loan Party are pledged pursuant to the Pledge Agreement and (ii) all
agreements entered into between the Bidding Entity and any Loan Party are
assigned to the Administrative Agent, as agent for the Lenders as
collateral;
135
(j) investments in the Capital Stock of the Marketing Affiliate, the
consideration for which consists of the transfer of the SunCom trademark;
provided that (i) all such Capital Stock is pledged pursuant to the Pledge
Agreement and (ii) all agreements entered into between the Marketing
Affiliate and any Loan Party are assigned to the Administrative Agent, as
agent for the Lenders as collateral; provided, further, that if an Event of
-------- -------
Default exists, the Lenders may enforce the Loan Parties' rights with
respect to such Capital Stock and agreements but may transfer such Capital
Stock and assign such agreements to third parties only after obtaining any
required consents from the equity holders (other than any Loan Party) in
the Marketing Affiliate, such consents not to be unreasonably withheld;
(k) loans or advances made to employees in an aggregate amount not to
exceed $2,000,000 at any time outstanding;
(l) buy-backs of Capital Stock of Holdings from employees upon death
or termination of employment in an aggregate amount not to exceed
$1,000,000 during any fiscal year of the Borrower; and
(m) acquisitions of or investments in Persons engaged in Related
Businesses so long as (i) the consideration paid in connection with all
such acquisitions or investments consists solely of cash and/or Capital
Stock of Holdings with an aggregate value not in excess of $30,000,000 and
(ii) Holdings, the Borrower and the Subsidiaries shall be in Pro Forma
Compliance after giving effect to any such acquisition or investment.
136
SECTION 6.06. Asset Sales. Holdings and the Borrower will not, and
------------
will not permit any Subsidiary to, sell, transfer, lease or otherwise dispose of
any asset (other than assets of Holdings constituting an Unrestricted
Subsidiary), including any capital stock, nor will the Borrower permit any of
its Subsidiaries to issue any additional shares of its capital stock or other
ownership interest in such Subsidiary, except in the case of the Borrower and
its Subsidiaries:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a Subsidiary;
provided that any such sales, transfers or dispositions involving a
--------
Subsidiary that is not a Loan Party shall be made in compliance with
Section 6.09;
(c) sales, transfers and dispositions of assets (other than capital
stock of a Subsidiary) that are not permitted by any other clause of this
Section; provided that the aggregate fair market value of all assets sold,
--------
transferred or otherwise disposed of in reliance upon this clause (c) shall
not exceed $5,000,000 during any fiscal year of the Borrower;
(d) the sale to AW of the Exchanged Licenses contemplated by the
definition of AW Pops Swap;
(e) the transfer of the SunCom trademark to the Marketing Affiliate;
and
(f) the Tower Sale;
provided that all sales, transfers, leases and other dispositions permitted
--------
hereby (other than those permitted in clauses (d) and (e) above) shall be made
for fair value and solely for cash consideration.
SECTION 6.07. Hedging Agreements. Holdings and the Borrower will
-------------------
not, and will not permit any Subsidiary to, enter into any Hedging Agreement,
other than (a) Hedging Agreements required by Section 5.14 and (b) Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any
137
Subsidiary is exposed in the conduct of its business or the management of its
liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
------------------------------------------------------
(a) The Borrower will not, nor will it permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
except (i) the Borrower may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock, (ii)
Subsidiaries may declare and pay dividends ratably with respect to their capital
stock, provided that no distribution referred to in this clause (ii) shall be
--------
permitted to be made by any Special Purpose Subsidiary if any Default or Event
of Default shall have occurred and be continuing or would result therefrom,
(iii) the Borrower may make Restricted Payments, not exceeding $1,000,000 during
any fiscal year, pursuant to and in accordance with stock option plans or other
benefit plans for management or employees of the Borrower and its Subsidiaries
and (iv) if no Default has occurred and is continuing, the Borrower may make
Restricted Payments to Holdings (A) to fund, as and when due, payments of
regularly scheduled interest and principal in respect of any Indebtedness
incurred by Holdings that is permitted by Section 6.01(a), other than payments
in respect of the Subordinated Debt prohibited by the subordination provisions
thereof, and, (B) to fund, as and when due, payments in respect of taxes, audit
fees and directors and officers insurance premiums incurred by Holdings (to the
extent fairly allocable to the business of the Borrower and the Subsidiaries
rather than the business of the Unrestricted Subsidiaries) in an aggregate
amount not to exceed $3,000,000 (or such higher amount as the Administrative
Agent may agree) during any fiscal year of the Borrower.
(b) Holdings and the Borrower will not, and will not permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
138
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal payments as
and when due in respect of any Indebtedness permitted by Section 6.01(a),
other than payments in respect of the Subordinated Debt prohibited by the
subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness permitted by Section 6.01(a) that
becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(v) returns of deposits or advances in the ordinary course of
business;
(vi) payment made to satisfy the Borrower's reimbursement obligations
under any Letters of Credit issued hereunder;
(vii) payments under Guarantees of obligations of Persons other than
Holdings, the Borrower and the Subsidiaries that are permitted under
Section 6.01; and
(viii) regularly scheduled rent payments in respect of any Capital
Lease Obligations that are permitted under Section 6.01.
SECTION 6.09. Transactions with Affiliates. Holdings and the
-----------------------------
Borrower will not, and will not permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to Holdings, the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among Holdings, the Borrower and the Subsidiary Loan Parties not
involving any other Affiliate, (c) the transactions contemplated by the
Preferred Stock Agreement and the Norfolk Asset
139
Purchase Agreement, (d) the AW Pops Swap and (e) any Restricted Payment
permitted by Section 6.08.
SECTION 6.10. Restrictive Agreements. The Borrower will not, nor
-----------------------
will it permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary; provided that (i) the foregoing shall not
--------
apply to restrictions and conditions imposed by law or by any Loan Document or
Subordinated Debt Document, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
agreements restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. Holdings and the
--------------------------------
Borrower will not, and will not permit any Subsidiary to, amend, modify or waive
any of its rights under (a) any agreement relating to material Indebtedness, (b)
its certificate of incorporation, by-laws or other organizational documents, (c)
the Special Purpose Subsidiary Funding Agreements, (d) the PCS Documents, (e)
the Tower Sale Asset Purchase Agreement, (f) the Additional Capital
Contributions Commitments and (g) the definitive documentation for the
Additional Capital Contributions, in the case of clauses (a), (b), (c), (e), (f)
and (g) above,
140
in a manner adverse to the interests of the Lenders and, in the
case of clause (d) above, in a manner that could be adverse in a material
respect to the interests of the Lenders provided that, if requested by the
--------
Borrower, the Administrative Agent will review any contemplated amendment or
waiver of such debt or other agreements and promptly advise the Borrower if such
amendment or waiver could be adverse to the interests of the Lenders.
SECTION 6.12. Financial Covenants. (a) Senior Debt to Total
-------------------- --------------------
Capital. Holdings and the Borrower will not permit the ratio of Senior Debt to
--------
Total Capital in each case on any day on which a Borrowing occurs and the last
day of each fiscal quarter to exceed .50 to 1; provided, however, that if (i)
-------- -------
all Unfunded Commitments (as defined in the Securities Purchase Agreement) have
been contributed in full in cash to the Borrower and (ii) Covered Pops meet or
exceed 60% of the aggregate number of Pops within the Licensed Territory (as
defined in the Network License Agreement) then the ratio of Senior Debt to Total
Capital may exceed .50 to 1 but shall not exceed .55 to 1 on or prior to
December 31, 2000 and thereafter shall not be limited.
(b) Total Debt to Total Capital. Holdings and the Borrower will not
----------------------------
permit the ratio of Total Debt to Total Capital in each case on any day on which
a Borrowing occurs and the last day of each fiscal quarter to exceed (i) on or
prior to March 31, 2005, .75 to 1 and (ii) thereafter, .70 to 1.
(c) Capital Expenditures. The Borrower will not permit Capital
---------------------
Expenditures of the Borrower and its Subsidiaries for any period set forth below
to exceed the sum set forth opposite such period:
Period Amount
------ ------
Date of formation through
December 31, 1998 $275,000,000
January 1, 1999 - December 31, 1999 $375,000,000
January 1, 2000 - December 31, 2000 $250,000,000
January 1, 2001 - December 31, 2001 $175,000,000
January 1, 2002 - December 31, 2002 $100,000,000
; provided, that any permitted amount which is not expended in any of the
--------
periods specified above (other than the period from the date of formation
through December 31,
141
1998) may be carried over for expenditure in the immediately subsequent period.
(d) Covered Pops. The Borrower will not permit Covered Pops as a
-------------
percentage of the total number of Pops in the Service Regions on or after any
date set forth below to be less than the percentage set forth opposite such
date.
Date Minimum Covered Pops
---- --------------------
June 30, 1999 40%
June 30, 2000 60%
June 30, 2001 75%
June 30, 2002 and thereafter 80%
(e) Aggregate Service Revenue. The Borrower will not permit
--------------------------
Aggregate Service Revenue for any period of four consecutive fiscal quarters
ending on or after any date set forth below and prior to January 1, 2001 to be
less than Aggregate Service Revenue set forth opposite such date.
Minimum Aggregate
Date Service Revenue
--------------------------------------------- ------------------------
June 30, 1999 15,000,000
December 31, 1999 60,000,000
June 30, 2000 125,000,000
December 31, 2000 190,000,000
(f) Subscribers. The Borrower will not permit the number of
------------
Subscribers on or after any date set forth below and prior to January 1, 2001 to
be less than the number of Subscribers set forth opposite such date:
Date Minimum Subscribers
----- --------------------
December 31, 1999 155,000
June 30, 2000 210,000
December 31, 2000 295,000
142
(g) Senior Debt to Annualized Adjusted EBITDA. Holdings and the
------------------------------------------
Borrower will not permit the ratio of (i) Senior Debt outstanding on any day
from and including (a) the last day of any fiscal quarter set forth below
through (b) the day immediately preceding the last day of the immediately
following fiscal quarter to (ii) Annualized Adjusted EBITDA for the period
ending on the date referred to in clause (i)(a) above to exceed the ratio set
forth opposite such date:
Fiscal Quarter Ending On Ratio
------------------------ --------------------------
March 31, 2000 14.0 to 1
June 30, 2000 8.0 to 1
September 30, 2000 8.0 to 1
December 31, 2000 7.0 to 1
March 31, 2001 6.0 to 1
June 30, 2001 5.0 to 1
(h) Total Debt to Annualized Adjusted EBITDA. Holdings and the
-----------------------------------------
Borrower will not permit the ratio of (i) Total Debt outstanding on any day from
and including (a) the last day of any fiscal quarter set forth below through (b)
the day immediately preceding the last day of the immediately following fiscal
quarter to (ii) Annualized Adjusted EBITDA for the period ending on the date
referred to in clause (i)(a) above to exceed the ratio set forth opposite such
date:
Fiscal Quarter Ending On Ratio
------------------------ ---------
September 30, 2000 23.0 to 1
December 31, 2000 17.0 to 1
March 31, 2001 14.0 to 1
June 30, 2001 12.0 to 1
September 30, 2001 10.0 to 1
143
(i) Senior Debt to Annualized EBITDA. Holdings and the Borrower will
---------------------------------
not permit the ratio of (i) Senior Debt outstanding on any day from and
including (a) the last day of any fiscal quarter set forth below through (b) the
day immediately preceding the last day of the immediately following fiscal
quarter to (ii) Annualized EBITDA for the period ending on the date referred to
in clause (i)(a) above to exceed the ratio set forth opposite such date:
Fiscal Quarter Ending On Ratio
------------------------ -----------
September 30, 2001 9.0 to 1
December 31, 2001 7.0 to 1
March 31, 2002 7.0 to 1
June 30, 2002 6.0 to 1
September 30, 2002 5.0 to 1
December 31, 2002 4.0 to 1
March 31, 2003 4.0 to 1
June 30, 2003 4.0 to 1
September 30, 2003 3.0 to 1
December 31, 2003 and thereafter 3.0 to 1
(j) Total Debt to Annualized EBITDA. Holdings and the Borrower will
--------------------------------
not permit the ratio of (i) Total Debt outstanding on any day from and including
(a) the last day of any fiscal quarter set forth below through (B) the day
immediately preceding the last day of the immediately following fiscal quarter
to (ii) Annualized EBITDA for the period ending on the date referred to in
clause (i)(a) above to exceed the ratio set forth opposite such date:
Fiscal Quarter Ending On Ratio
------------------------ ------------
December 31, 2001 19.0 to 1
March 31, 2002 17.0 to 1
June 30, 2002 14.0 to 1
September 30, 2002 11.0 to 1
December 31, 2002 8.0 to 1
March 31, 2003 8.0 to 1
June 30, 2003 8.0 to 1
September 30, 2003 6.0 to 1
December 31, 2003 6.0 to 1
March 31, 2004 6.0 to 1
June 30, 2004 6.0 to 1
September 30, 2004 and thereafter 4.5 to 1
144
(k) Interest Coverage Ratio. Holdings and the Borrower will not
------------------------
permit the ratio of (i) Consolidated EBITDA for any period of four consecutive
fiscal quarters ending on any date or during any "Test Period" set forth below
to (ii) Cash Interest Expense for such period to be less than the ratio set
forth opposite such date or Test Period:
Date or Test Period Ratio
------------------- -------------
March 31, 2002 - June 30, 2002 1.50 to 1
September 30, 2002 1.75 to 1
December 31, 2002 - June 30, 2005 2.00 to 1
September 30, 2005 and thereafter 2.25 to 1
(l) Fixed Charges Ratio. Holdings and the Borrower will not permit
--------------------
the ratio of (i) Consolidated EBITDA for any period of four consecutive fiscal
quarters ending during any "Test Period" set forth below to Fixed Charges for
such period to be less than the ratio set forth opposite such Test Period.
Test Period Ratio
----------- -----------
September 30, 2002 - June 30, 2003 1.00 to 1
September 30, 2003 and thereafter 1.10 to 1
SECTION 6.13. Liabilities of Special Purpose Subsidiaries. The
--------------------------------------------
Borrower will not:
(a) permit the License Subsidiary to incur, assume or permit to exist
any liabilities (other than under the Guarantee Agreement and the Security
Agreement and the Communications Act and taxes and other liabilities incurred in
the ordinary course in order to maintain its existence or Guarantees of 11%
Notes and of the Subordinated Debt permitted by Section 6.01(a)(ii) and (iii)
hereof) or to engage in any business or activities other than the holding of
Licenses; provided that a License Subsidiary may hold an asset which is to be
--------
immediately transferred in accordance with Section 5.13(b) hereof; or
(b) permit the Real Property Subsidiary to incur, assume or permit to
exist any liabilities (other than under the Guarantee Agreement and the Security
Agreement and other liabilities incurred in the ordinary course of business
which are incident to being the lessee of real
145
property or the purchaser, owner or lessee of equipment and taxes and other
liabilities in the ordinary course in order to maintain its existence or
Guarantees of the 11% Notes and of the Subordinated Debt permitted by Section
6.01 (a)(ii) and (iii) hereof) or to engage in any business or activities other
than the owning or leasing, as lessee, of Real Property Assets and the leasing,
as lessor, or, as the case may be, subleasing, as sublessor, thereof to the
Borrower or another Subsidiary, and the owning of Real Property-Related
Equipment constituting fixtures thereto and the leasing thereof to the Borrower
or another Subsidiary.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or
in connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, shall prove to have been incorrect in any
material respect when made or deemed made;
146
(d) Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of the Borrower and Holdings), 5.11 or 5.16(b) or
in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) any Loan Party shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
--------
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any Loan Party or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
147
(i) any Loan Party shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or
consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make
a general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(j) any Loan Party shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money to the extent not
covered by insurance in an aggregate amount in excess of $5,000,000 shall
be rendered against the Borrower, any Loan Party or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid and
perfected Lien on any Collateral, with the priority required by the
applicable Security Document, except (i) as a result of the sale or other
disposition of
148
the applicable Collateral in a transaction permitted under the Loan
Documents or (ii) as a result of the Administrative Agent's failure to
maintain possession of any stock certificates, promissory notes or other
instruments delivered to it under the Pledge Agreement or the
Administrative Agent's failure to file necessary continuation financing
statements or make required filings with the Patent and Trademark Office of
the United States after delivery to the Administrative Agent by the
Borrower of executed copies of such financing statements and filings;
provided, that if the failure of any such Lien to be valid and perfected is
--------
amenable to cure without materially disadvantaging the position of the
Administrative Agent and the Lenders as secured parties, the failure of
such Lien to be valid and perfected shall not constitute a default under
this clause (m) if the Borrower shall have cured such failure within 30
days after notice from the Administrative Agent (or such shorter period as
may be reasonable under the circumstances and is specified by the
Administrative Agent in such notice).
(n) any of the Security Documents shall cease to be or shall be
asserted by any Loan Party not to be in full force and effect;
(o) the Guarantee Agreement shall cease to be or shall be asserted by
any Loan Party not to be in full force and effect or the Borrower;
(p) a Change in Control shall occur;
(q) the failure of the Borrower to make any payments required to be
made to the FCC or any other Governmental Authority with respect to any
License held by the Borrower or any Subsidiary or any Indebtedness or other
payment obligations relating thereto as and when due which failure could
reasonably be expected to lead to the loss, termination, revocation, non-
renewal or material impairment of any License or otherwise result in a
Material Adverse Effect;
(r) any termination (prior to the expiration of its term), revocation
or non-renewal by the FCC of one or more Licenses of the Borrower or its
Subsidiaries;
149
(s) the Borrower's right to use any "AT&T" trademark pursuant to the
Network License Agreement shall terminate (it being understood that, on or
after February 4, 2003, neither the non-renewal of the Network License
Agreement by AW nor the termination of the Network License Agreement by AW
as a result of a Disqualifying Transaction (as defined in the Stockholders
Agreement) shall constitute an Event of Default hereunder);
(t) the loss by any Loan Party of any rights to the benefit of, or the
occurrence of any default or the termination of any rights under, any
application, marketing or other material agreements, which loss, occurrence
or termination could reasonably be expected to affect in a material and
adverse respect the Borrower's ability to satisfy its obligations to the
Lenders hereunder or to result in a Material Adverse Effect (it being
understood that, on or after the date which is five years from the
Effective Date, neither the non-renewal of the Network License Agreement by
AW nor the termination of the Network License Agreement by AW as a result
of a Disqualifying Transaction (as defined in the Stockholders Agreement)
shall constitute an Event of Default hereunder);
(u) the failure of any party to the Securities Purchase Agreement or
the Stockholders Agreement to comply with any funding or contribution
obligation under such Agreement and such failure shall continue unremedied
for a period of 30 days;
(v) On or prior to December 31, 1999, Holdings shall not have either
(i) executed definitive documentation with respect to the Additional
Capital Contributions on terms satisfactory to the Administrative Agent or
(ii) received Net Proceeds of at least $75,000,000 from an initial public
offering of its equity securities;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the
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Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h) or (i)
of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be
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subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) the Administrative Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the
Loan Documents that the Administrative Agent is required to exercise in writing
by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 9.02), and (c)
except as expressly set forth in the Loan Documents, the Administrative Agent
shall not have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
9.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any
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statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, with the
consent of the Borrower (which consent shall not be unreasonably withheld), to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation
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hereunder, the provisions of this Article and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it c/o Triton Communications
L.L.C., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (Telecopy No. 610-933-2683);
with copies to
Klienbard, ▇▇▇▇ & Brecker LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
154
and
Dow ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: 202-776-2222
(b) if to the Administrative Agent or the Issuing Bank, to The Chase
Manhattan Bank, Loan and Agency Services Group, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇ ▇▇▇▇ (Telecopy No. (212)
552-5700), with a copy to The Chase Manhattan Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of ▇▇▇▇▇▇ ▇▇▇▇▇ (Telecopy No. (212) 270-
4584; and
(d) if to the Swingline Lender, to it at the address notified to the
Borrower and the Administrative Agent; and
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
--------------------
Administrative Agent or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same
155
shall be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a
Loan or the issuance of a Letter of Credit shall not be construed as a waiver of
any Default, regardless of whether the Administrative Agent, the Issuing Bank or
any Lender may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders; provided
--------
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or the required date of reimbursement of any LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.16(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision of any Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), (vi) release any Subsidiary Loan Party from its
Guarantee under the Guarantee Agreement (except as expressly provided in the
Guarantee Agreement), or limit its liability in respect of such Guarantee,
without the written consent of each Lender, (vii) release all or a substantial
part of the Collateral from the Liens
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of the Security Documents, without the written consent of each Lender, (viii)
change any provisions of any Loan Document in a manner that by its terms
adversely affects the rights in respect of payments due to Lenders holding Loans
of any Class differently than those holding Loans of any other Class, without
the written consent of Lenders holding a majority in interest of the outstanding
Loans and unused Commitments of each affected Class or (ix) change the rights of
the Tranche B Lenders to decline mandatory prepayments as provided in Section
2.09, without the written consent of Tranche B Lenders holding a majority of the
outstanding Tranche B Loans; provided further that (A) no such agreement shall
----------------
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Issuing Bank or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be and (B) any waiver, amendment or modification of this
Agreement that by its terms affects the rights or duties of the Lenders holding
one particular Class of Loans but not of Lenders holding any other Class of
Loans under this Agreement may be effected by an agreement or agreements in
writing entered into by the Borrower and the Lenders who hold the requisite
percentage in interest of such affected Class of Loans.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
-----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including due diligence expenses and
the reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with the Loan Documents, including its rights under
this Section, or in
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connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any failure of the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Mortgaged Property or any other property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
--------
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses are determined by a
court of competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or the Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity
158
payment is sought) of such unpaid amount; provided that the unreimbursed expense
--------
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent or the
Issuing Bank in its capacity as such and provided, further, that payments by the
-------- -------
Lenders to the Administrative Agent pursuant to this sentence shall be returned
to the Lenders to the extent the Borrower subsequently pays such unpaid amount.
For purposes hereof, a Lender's "pro rata share" shall be determined based upon
its share of the sum of the total Revolving Exposures, outstanding Term Loans
and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
-----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit), and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations
159
under this Agreement (including all or a portion of its Commitment and the Loans
at the time owing to it); provided that (i) except in the case of an assignment
--------
to a Lender or an Affiliate of a Lender, each of the Borrower and the
Administrative Agent (and, in the case of an assignment of all or a portion of a
Revolving Commitment or any Lender's obligations in respect of its LC Exposure,
the Issuing Bank) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld or delayed), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of Commitments
or Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower otherwise
----------------
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to
160
the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
--------
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
-----------
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
161
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided that such agreement or
--------
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.16(c) as
though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations
162
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
---------
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
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Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
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be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
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occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have. Any Lender exercising a set-off pursuant to this
Section 9.08 shall give notice thereof to the Borrower as soon as reasonably
practicable thereafter.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
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Process. (a) This Agreement shall be construed in accordance with and governed
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by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any
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action or proceeding arising out of or relating to any Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement or any other Loan
Document shall affect any right that the Administrative Agent, the Issuing Bank
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement or any other Loan Document against the Borrower or its properties
in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
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TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION,
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SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
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of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent,
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the Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" means all information received from Holdings or
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the Borrower relating to Holdings or the Borrower or their business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
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after the date hereof, such information is clearly identified at the time of
delivery
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as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
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