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EXHIBIT 10.26
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CREDIT AGREEMENT
dated as of
September 20, 1999
among
CRICKET COMMUNICATIONS INC.,
CRICKET WIRELESS COMMUNICATIONS INC.,
The Lenders Party Hereto,
and
LUCENT TECHNOLOGIES INC.,
as Administrative Agent
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[Reference No. 7725-053]
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Contents, p. 2
TABLE OF CONTENTS
ARTICLE I Definitions
SECTION 1.01. Defined Terms..................................................1
SECTION 1.02. Classification of Loans and Borrowings........................33
SECTION 1.03. Terms Generally...............................................33
SECTION 1.04. Accounting Terms; GAAP; Consolidation of License
Subsidiaries............................................34
ARTICLE II The Loans
SECTION 2.01. Commitments...................................................34
SECTION 2.02. Loans and Borrowings..........................................35
SECTION 2.03. Requests for Borrowings.......................................36
SECTION 2.04. Funding of Borrowings.........................................37
SECTION 2.05. Interest Elections............................................38
SECTION 2.06. Termination and Reduction of Commitments......................39
SECTION 2.07. Repayment of Loans; Evidence of Debt..........................40
SECTION 2.08. Amortization of Loans.........................................41
SECTION 2.09. Prepayment of Loans...........................................42
SECTION 2.10. Fees..........................................................45
SECTION 2.11. Interest......................................................46
SECTION 2.12. Alternate Rate of Interest....................................47
SECTION 2.13. Increased Costs...............................................47
SECTION 2.14. Break Funding Payments........................................48
SECTION 2.15. Taxes.........................................................49
SECTION 2.16. Payments Generally;
Pro Rata Treatment;
Sharing of Set-Offs.....................................50
SECTION 2.17. Mitigation Obligations;
Replacement of Lenders..................................53
ARTICLE III Representations and Warranties
SECTION 3.01. Organization; Powers..........................................54
SECTION 3.02. Authorization; Enforceability.................................54
SECTION 3.03. Governmental Approvals;
No Conflicts............................................54
SECTION 3.04. Financial Condition;
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Contents, p. 3
No Material Adverse Change..............................55
SECTION 3.05. Properties and Licenses.......................................55
SECTION 3.06. Litigation and Environmental Matters..........................56
SECTION 3.07. Compliance with Laws and Agreements...........................57
SECTION 3.08. Investment and Holding Company Status.........................57
SECTION 3.09. Taxes.........................................................57
SECTION 3.10. ERISA.........................................................57
SECTION 3.11. Disclosure....................................................58
SECTION 3.12. Subsidiaries..................................................58
SECTION 3.13. Insurance.....................................................58
SECTION 3.14. Labor Matters.................................................58
SECTION 3.15. Purchase Agreement............................................59
SECTION 3.16. Year 2000.....................................................59
ARTICLE IV Conditions
SECTION 4.01. Effective Date................................................59
SECTION 4.02. Initial Availability Date.....................................60
SECTION 4.03. Full Availability Date........................................62
SECTION 4.04. Each Borrowing................................................62
ARTICLE V Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information....................63
SECTION 5.02. Notices of Material Events....................................66
SECTION 5.03. Information Regarding Collateral..............................66
SECTION 5.04. Existence; Conduct of Business................................67
SECTION 5.05. Payment of Obligations........................................68
SECTION 5.06. Maintenance of Properties.....................................68
SECTION 5.07. Insurance.....................................................68
SECTION 5.08. Books and Records; Inspection Rights..........................69
SECTION 5.09. Compliance with Laws and Agreements...........................69
SECTION 5.10. Use of Proceeds...............................................70
SECTION 5.11. Additional Subsidiaries.......................................70
SECTION 5.12. Further Assurances............................................70
SECTION 5.13. Casualty and Condemnation.....................................71
SECTION 5.14. Interest Rate Protection......................................71
SECTION 5.15. Intercompany Agreements ......................................72
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Contents, p. 4
ARTICLE VI Negative Covenants
SECTION 6.01. Indebtedness; Preferred Stock.................................72
SECTION 6.02. Liens.........................................................74
SECTION 6.03. Fundamental Changes;
Corporate Structure.....................................75
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions;
Asset Sales.............................................77
SECTION 6.05. Hedging Agreements............................................80
SECTION 6.06. Restricted Payments...........................................80
SECTION 6.07. Transactions with Affiliates..................................81
SECTION 6.08. Restrictive Agreements........................................81
SECTION 6.09. Repayment of Indebtedness.....................................82
SECTION 6.10. Intercompany Agreements.......................................82
SECTION 6.11. Limitation on Sale-Leaseback Transactions.....................82
SECTION 6.12. Equipment Site Interests and Real Estate Subsidiaries.........82
SECTION 6.13. FCC Licenses and License Subsidiaries.........................83
SECTION 6.14. Amendment of Material Documents...............................83
SECTION 6.15. Capital Expenditures..........................................83
SECTION 6.16. Covered POPS..................................................84
SECTION 6.17. Subscribers...................................................85
SECTION 6.18. Total Indebtedness to Total Capitalization....................85
SECTION 6.19. Total Indebtedness to Annualized EBITDA.......................86
SECTION 6.20. Consolidated EBITDA to Cash Interest Expense..................86
SECTION 6.21. Minimum Gross Revenue.........................................87
SECTION 6.22. Activities of Holdings........................................87
ARTICLE VII Events of Default
ARTICLE VIII The Agents
ARTICLE IX Miscellaneous
SECTION 9.01. Notices.......................................................95
SECTION 9.02. Waivers; Amendments...........................................95
SECTION 9.03. Expenses; Indemnity;
Damage Waiver...........................................97
SECTION 9.04. Successors and Assigns........................................98
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Contents, p. 5
SECTION 9.05. Survival.....................................................101
SECTION 9.06. Counterparts; Integration;
Effectiveness..........................................102
SECTION 9.07. Severability.................................................102
SECTION 9.08. Right of Setoff..............................................102
SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process..........................103
SECTION 9.10. WAIVER OF JURY TRIAL.........................................104
SECTION 9.11. Headings.....................................................104
SECTION 9.12. Confidentiality..............................................104
SECTION 9.13. Interest Rate Limitation.....................................105
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Contents, p. 6
SCHEDULES:
Schedule 2.01 -- Tranche A Commitments
Schedule 3.05A -- Real Property
Schedule 3.05B -- Licenses
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.08 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Borrower Pledge Agreement
Exhibit B -- Form of Collateral Agency Agreement
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit E -- Form of Parent Agreement
Exhibit F -- Form of Parent Pledge Agreement
Exhibit G -- Form of Perfection Certificate
Exhibit H -- Form of Security Agreement
Exhibit I -- Form of Subordination Agreement
Exhibit J -- Form of Opinion of Counsel
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CREDIT AGREEMENT dated as of September 20, 1999, among CRICKET
COMMUNICATIONS INC., a Delaware corporation, CRICKET WIRELESS COMMUNICATIONS
INC., a Delaware corporation, the LENDERS party hereto, and LUCENT TECHNOLOGIES
INC., as Administrative Agent.
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:
"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.
"Adjusted LIBO Rate" means, with respect to any LIBOR 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 Lucent, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an administrative questionnaire in
a 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.
"Agents" means the Administrative Agent and the Collateral Agent.
"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
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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.
"Annualized EBITDA" means, as of any date, (a) Consolidated EBITDA for
the period of two consecutive calendar quarters ended on such date (or, if such
date is not the last day of a calendar quarter, then for the period of two
consecutive calendar quarters most recently ended prior to such date),
multiplied by (b) two.
"Applicable Margin" means, for any day, the applicable rate per annum
set forth below under the caption "ABR Margin" or "Eurodollar Margin", as the
case may be, based on the Leverage Ratio as of the most recent determination
date:
Leverage Ratio ABR Margin Eurodollar Margin
-------------- ---------- -----------------
Category 1 <4.0 to 1.0 2.50% 3.50%
-
Category 2 >4.0 to 1.0 but <6.0 2.75% 3.75%
- to 1.0
Category 3 >6.0 to 1.0 but 3.00% 4.00%
<10.0 to 1.0
-
Category 4 >10.0 to 1.0 3.25% 4.25%
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 4 (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) within the period specified therein for
delivery thereof, during the period
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from the expiration of the period specified therein 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 a form
approved by the Administrative Agent.
"Availability Period" means the period from and including the Initial
Availability Date to but excluding the earlier of the Availability Termination
Date and the date of termination of the Commitments.
"Availability Termination Date" means the date that is 36 months after
the Effective Date.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Cricket Wireless Communications, Inc., a Delaware
corporation.
"Borrower Pledge Agreement" means the Pledge Agreement among Holdings,
the Borrower, its Subsidiaries and the Collateral Agent, substantially in the
form of Exhibit A.
"Borrowing" means a Loan or group of Loans of the same Type, made,
converted or continued on the same date and, in the case of LIBOR Loans, as to
which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"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 LIBOR 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.
"Business Plan" means, for any fiscal year, the business plan of the
Borrower and the Subsidiaries for such fiscal year.
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"Capital Expenditures" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower and
its 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 and
(b) Capital Lease Obligations incurred by the Borrower and its Subsidiaries
during such period.
"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.
"Cash Interest Expense" means, for any period, the sum of (a) interest
expense of the Borrower and the Subsidiary Loan Parties for such period,
determined on a consolidated basis in accordance with GAAP, excluding (to the
extent otherwise included therein) (i) amortization of debt discounts and loan
fees, (ii) interest expense in respect of any Indebtedness that constitutes a
Primary Subordinated Obligation and (iii) any other interest that is not
required to be paid during such period or within one year after the end of such
period, plus (b) the aggregate amount of Restricted Payments made during such
period pursuant to clause (d) of Section 6.06.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person other than Holdings of any
Equity Interest in the Borrower, (b) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person other than the Parent of
any Equity Interest in any License Subsidiary, (c) the sale, transfer or other
disposition by the Parent of any Equity Interest in Holdings, (d) the failure by
the Parent to own, beneficially and of record, Voting Stock of Holdings
representing at least 51% of the combined voting power of all Voting Stock of
Holdings, (e) the failure by the Parent to have the ability (without the consent
or approval of any other Person) to control the election of at least a majority
of the board of directors of Holdings, (f) the acquisition of beneficial
ownership (within the meaning of Rule 13d-3 of
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the Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, by any Person (or two or more Persons acting in
concert), other than the Parent, of Voting Stock of Holdings (or other
securities convertible into such Voting Stock) representing 15% or more of the
combined voting power of all Voting Stock of Holdings, (g) the acquisition of
beneficial ownership (within the meaning of such Rule 13d-3), directly or
indirectly, by any Person (or two or more Persons acting in concert) of Voting
Stock of the Parent (or other securities convertible into such Voting Stock)
representing 20% or more of the combined voting power of all Voting Stock of the
Parent, (h) the failure on any day of at least a majority of the board of
directors of the Parent to be comprised of (i) individuals who were directors of
the Parent as of the later of the date 18 months prior to such day or September
1, 1999, and (ii) individuals whose nomination as directors was approved by
individuals who were directors of the Parent as of the later of the date 18
months prior to such day or September 1, 1999, or (i) the acquisition, by
contract or otherwise, of the power to exercise, directly or indirectly, Control
of the Parent by any Person (or two or more Persons acting in concert), or the
entering into of any contract or arrangement that, upon consummation, will
result in such acquisition of power. For purposes of the foregoing, "Voting
Stock" means Equity Interests issued by a Person the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even of
the right so to vote has been suspended by the happening of such contingency.
The grant by the Parent of a Lien on any Equity Interest in Holdings shall not
constitute a Change in Control unless and until any action is taken to exercise
remedies in respect of such Lien.
"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, for
purposes of Section 2.13(b), by any lending office of such Lender or by such
Lender'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.
"ChaseTel" means Chase Telecommunications, Inc., a Delaware
corporation.
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"ChaseTel Acquisition" means the purchase of ChaseTel, ChaseTel
Licensee and certain related assets pursuant to and as contemplated by the
ChaseTel Purchase Agreement.
"ChaseTel Credit Agreement" means the Credit Agreement dated as of June
26, 1998, as amended, between ChaseTel and XXXXXXXX Xxxxxxxxxxxx.
"ChaseTel Earnout" means (a) the obligation to pay the "Earnout Amount"
(as defined in the ChaseTel Purchase Agreement) or (b) any payment made in
respect of such obligation.
"ChaseTel Indebtedness" means any Indebtedness of ChaseTel existing at
the time of consummation of the ChaseTel Acquisition, including any Indebtedness
outstanding under the ChaseTel Credit Agreement.
"ChaseTel Licensee" means ChaseTel Licensee Corp., a Delaware
corporation.
"ChaseTel Loans" means Loans outstanding hereunder in an aggregate
principal amount equal to [*] of the aggregate Purchase Price of all equipment
purchased pursuant to the Purchase Agreement that has been resold by the
Borrower or a Subsidiary to ChaseTel as contemplated by Section 6.04(c);
provided that (a) the "ChaseTel Loans" shall be reduced by the principal amount
of any Loans prepaid pursuant to clause (iii) of Section 6.04(c) and (b) no
Loans shall constitute "ChaseTel Loans" after the ChaseTel Acquisition is
consummated in accordance with Section 6.04(a) or after the Parent prepays the
ChaseTel Loans in accordance with Section 7 of the Parent Agreement.
"ChaseTel Purchase Agreement" means the Asset Purchase Agreement dated
as of December 24, 1998, as amended, among the Parent, Chase Telecommunications
Holdings, Inc., ChaseTel, Xxxxxxx Xxxxx and Xxxxxxx XxXxxxxx.
"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.
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange
Commission.
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"Collateral Agency Agreement" means the Collateral Agency and
Intercreditor Agreement among the Borrower, the Collateral Agent, the
Administrative Agent and other holders of Eligible Secured Debt (or their
representatives) that become parties thereto as provided therein, substantially
in the form of Exhibit B.
"Collateral Agent" means State Street Bank and Trust Company in its
capacity as collateral agent for the Secured Parties (as defined in the
Collateral Agency Agreement) under the Security Documents.
"Collateral and Guarantee Requirement" means the requirement that:
(a) the Collateral Agent shall have received from Holdings and
each Subsidiary Loan Party either (i) a counterpart of the Guarantee
Agreement duly executed and delivered on behalf of such Subsidiary Loan
Party or (ii) in the case of any Person that becomes a Subsidiary Loan
Party after the Effective Date, a supplement to the Guarantee
Agreement, in the form specified therein, duly executed and delivered
on behalf of such Subsidiary Loan Party;
(b) the Collateral Agent shall have received (i) from the
Parent a counterpart of the Parent Pledge Agreement duly executed and
delivered on behalf of the Parent, (ii) from Holdings, the Borrower and
each of its Subsidiaries either (A) a counterpart of the Borrower
Pledge Agreement duly executed and delivered on behalf of the Borrower
or such Subsidiary, as applicable, or (B) in the case of any Person
that becomes a Subsidiary after the Effective Date, a supplement to the
Borrower Pledge Agreement, in the form specified therein, duly executed
and delivered on behalf of such Subsidiary, and (iii) from the Borrower
and each Subsidiary Loan Party either (A) counterparts of each of the
Security Agreement and the Indemnity, Subrogation and Contribution
Agreement duly executed and delivered on behalf of the Borrower or such
Subsidiary Loan Party, as applicable, or (B) in the case of any Person
that becomes a Subsidiary Loan Party after the Effective Date, a
supplement to each such agreement, in the form specified therein, duly
executed and delivered on behalf of such Subsidiary Loan Party;
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(c) all outstanding Equity Interests of the Borrower and each
Subsidiary Loan Party owned by or on behalf of any Loan Party shall
have been pledged pursuant to the applicable Pledge Agreement and the
Collateral Agent shall have received certificates or other instruments
representing all such Equity Interests, together with stock powers or
other instruments of transfer with respect thereto endorsed in blank;
(d) all Indebtedness of Holdings, the Borrower and each
Subsidiary Loan Party that is owing to any Loan Party (except for
Indebtedness of Holdings that is owing to the Parent) shall be
evidenced by a promissory note and shall have been pledged pursuant to
the applicable Pledge Agreement and the Collateral Agent shall have
received all such promissory notes, together with instruments of
transfer with respect thereto endorsed in blank;
(e) all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably
requested by either Agent to be filed, registered or recorded to create
the Liens intended to be created by the Security Agreement and perfect
such Liens to the extent required by, and with the priority required
by, the Security Agreement, shall have been filed, registered or
recorded or delivered to the Collateral Agent for filing, registration
or recording;
(f) the Collateral Agent shall have received (i) counterparts
of a Mortgage with respect to each Mortgaged Property duly executed and
delivered by the record owner of such Mortgaged Property, (ii) a policy
or policies of title insurance issued by a nationally recognized title
insurance company insuring the Lien of each such Mortgage as a valid
first Lien on the Mortgaged Property described therein, free of any
other Liens except as expressly permitted by Section 6.02, together
with such endorsements, coinsurance and reinsurance as either Agent or
the Required Lenders may reasonably request, and (iii) such surveys,
abstracts, appraisals, legal opinions and other documents as either
Agent or the Required Lenders may reasonably request with respect to
any such Mortgage or Mortgaged Property; and
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(g) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of the Guarantee Agreement and all Security
Documents to which it is a party, the performance of its obligations
thereunder and the granting by it of the Liens under such Security
Documents.
"Commitment" means, with respect to each Lender, the commitment, if
any, of such Lender to make Loans hereunder during the Availability Period,
expressed as an amount representing the maximum principal amount of the 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 Commitment is set forth on Schedule 2.01, or in
the Assignment and Acceptance pursuant to which such Lender shall have assumed
its Commitment, as applicable. The initial aggregate amount of the Commitments
is $641,000,000.
"Commitment Fee Rate" means a rate per annum equal to (a) 1.25% until
the aggregate principal amount of Loans made hereunder (whether or not repaid)
equals $175,000,000, (b) 1.00% thereafter, until the aggregate principal amount
of Loans made hereunder (whether or not repaid) equals $350,000,000 and (c)
0.75% thereafter.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period (adjusted to exclude all extraordinary items), plus, without
duplication and to the extent deducted from revenues in determining such
Consolidated Net Income, the sum of (a) consolidated interest expense for such
period, (b) consolidated income tax expense for such period, and (c) all amounts
attributable to depreciation and amortization for such period all as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income or loss
of the Borrower and the Subsidiary Loan Parties for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income of any Person (other than the Borrower or a Subsidiary
Loan Party) in which any other Person (other than the Borrower or any Subsidiary
or any director holding qualifying shares in compliance with
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applicable law) owns an Equity Interest, except to the extent of the amount of
dividends or other distributions actually paid to the Borrower or any of the
Subsidiaries during such period, and (b) the income or loss of any Person
accrued prior to the date it becomes a Subsidiary Loan Party or is merged into
or consolidated with the Borrower or any Subsidiary Loan Party or the date that
such Person's assets are acquired by the Borrower or any Subsidiary Loan Party.
"Contingent Commitments" means a portion of the Commitments equal to
$116,000,000.
"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.
"Covered POPS" means, at any time, the aggregate number of POPS within
the service areas of the facilities that are then owned by the Borrower and its
Subsidiaries and that have been placed in commercial operation; provided that
during the period from the Effective Date up to and including the earlier of (a)
the consummation of the ChaseTel Acquisition in accordance with Section 6.04 and
(b) the date that is one year after the Effective Date, "Covered POPS" shall
also include the aggregate number of POPS within the service areas of the
facilities that are then owned by ChaseTel and that have been placed in
commercial operation so long as such commercial operation is being managed by
the Borrower and its Subsidiaries pursuant to a management contract with
ChaseTel.
"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.
"Disqualified Stock" means any capital stock of Holdings, the Borrower
or any Subsidiary which by its terms (or by the terms of any security into which
it is convertible or for which it is exchangeable or exercisable) or upon the
happening of any event (a) matures or is
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mandatorily redeemable pursuant to a sinking fund obligation or otherwise, (b)
is convertible or exchangeable for Indebtedness or Disqualified Stock, (c)
requires the payment of dividends other than dividends payable solely in
additional shares of capital stock of Holdings (other than Disqualified Stock)
or (d) is redeemable or subject to required repurchase at the option of the
holder thereof, in whole or in part.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Eligible Assignee" means (a) Lucent or any Affiliate of Lucent, (b)
any commercial bank or other financial institution (including any credit
corporation) that either (i) has total assets in excess of $10,000,000,000, (ii)
has a combined capital and surplus and undivided profits in excess of
$700,000,000, (iii) has long-term indebtedness rated BBB- or better by S&P or
Baa3 or better by Moody's, or commercial paper having one of the two highest
credit ratings obtainable from S&P or Moody's, or (iv) has an Affiliate that
satisfies any of the criteria described in the foregoing clauses (i), (ii) and
(iii), or (c) any fund that is regularly engaged in making, purchasing or
investing in loans or securities that is controlled by an institution described
in clause (b) above or by any other nationally recognized investment fund
manager.
"Eligible Secured Debt" means (a) Indebtedness of the Borrower in
respect of the Loans, (b) any other Indebtedness for borrowed money of the
Borrower incurred to finance the purchase price of equipment purchased by the
Borrower and its Subsidiaries (other than pursuant to the Purchase Agreement)
for use in their wireless telecommunications and data networking business, (c)
any other Indebtedness for borrowed money of the Borrower incurred to finance
payments in respect of fees related to or interest in respect of Eligible
Secured Debt (other than the Loans) or the purchase price of any FCC License
that is acquired by a License Subsidiary and is to be used in the business of
the Borrower and its Subsidiaries after the purchase thereof (provided that such
FCC License is acquired by a License Subsidiary free of any Liens and is not
purchased subject to any FCC Debt, Permitted License
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Acquisition Debt or other Indebtedness), and (d) any Indebtedness for borrowed
money of the Borrower incurred to refinance Indebtedness referred to in clause
(a), (b) or (c) above in compliance with the proviso to clause (f) of Section
6.01 (other than clause (v) of such proviso); provided that:
(i) in the case of any Indebtedness described in clause (b)
above, such Indebtedness is incurred within 90 days of the purchase of
the equipment financed thereby, the principal amount thereof does not
exceed 100% of the purchase price of the equipment financed thereby and
such equipment becomes Collateral under the Security Agreement upon the
purchase thereof (free of any Liens other than the Lien of the Security
Agreement);
(ii) in the case of any Indebtedness described in clause (c)
above, at the time of and after giving effect to the incurrence of any
such Indebtedness the aggregate principal amount of all Indebtedness
described in clause (c) above that has been incurred (on a cumulative
basis, whether or not such Indebtedness remains outstanding) shall not
exceed 50% of the aggregate principal amount of all Indebtedness
described in clause (b) above that has been incurred (on a cumulative
basis, whether or not such Indebtedness remains outstanding) at or
prior to such time;
(iii) in the case of any Indebtedness described in clause (b)
or (c) above, at the time of and after giving effect to the incurrence
of any such Indebtedness the aggregate principal amount of all such
Indebtedness that has been incurred and all Loans that have been
incurred (in each case, on a cumulative basis, whether or not such
Indebtedness or Loans remain outstanding) shall not exceed
$1,200,000,000;
(iv) in the case of any Indebtedness described in clause (b),
(c) or (d) above, the holder or holders of such Indebtedness (or a duly
authorized representative thereof on behalf of such holders) shall have
become a party to the Collateral Agency Agreement as provided therein;
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(v) in the case of any Indebtedness described in clause (b),
(c) or (d) above, such Indebtedness is not Guaranteed by any Person
(other than pursuant to the Guarantee Agreement) or secured by any Lien
(other than Liens granted to the Collateral Agent to secure all
Eligible Secured Debt pursuant to the Security Documents); and
(vi) in the case of any Indebtedness described in clause (b),
(c) or (d) above, (A) the terms and conditions of such Indebtedness
shall not be less favorable to the Borrower in any material respect
than the terms and conditions of the Loans and shall not be
inconsistent with the terms and conditions of the Loans, (B) at the
time of and after giving effect to the incurrence of any such
Indebtedness, no Default shall have occurred and be continuing and the
Borrower shall be in compliance with Sections 6.18, 6.19 and 6.20
determined on a pro forma basis as of the last day of the most recently
ended calendar quarter of the Borrower for which financial statements
are available as though such Indebtedness had been incurred on such
day, and the Borrower shall have delivered to the Administrative Agent
a reasonably detailed calculation demonstrating such compliance, and
(C) at the time of and after giving effect to the incurrence of any
such Indebtedness, the ratio of Adjusted Total Indebtedness to Total
Contributed Capital shall not exceed 2.0 to 1.0.
"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 any Loan Party directly or indirectly resulting
from or based upon (a) violation of any Environmental Law, (b) the generation,
use, handling,
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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 Site Interest" means any ownership interest in, or right,
title or interest under any lease, agreement or other arrangement providing for
the right to use, any site upon or at which any infrastructure equipment owned
by the Borrower or any Subsidiary is or is to be located.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"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.
"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
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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.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excess Cash Flow" means, for any fiscal year of the Borrower, the sum
(without duplication) of:
(a) the Consolidated Net Income of the Borrower and the
Subsidiary Loan Parties for such fiscal year, 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 for such
fiscal year; plus
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such fiscal year plus (ii) the net amount, if
any, by which the consolidated deferred revenues of the Borrower and the
Subsidiary Loan Parties increased during such fiscal year; minus
(d) the sum of (i) any non-cash gains included in determining
such consolidated net income (or loss) for such fiscal year plus (ii)
the amount, if any, by which Net Working Capital increased during such
fiscal year plus (iii) the net amount, if any, by which the consolidated
deferred revenues of the Borrower and the Subsidiary Loan Parties
decreased during such fiscal year; minus
(e) Capital Expenditures for such fiscal year (except to the
extent attributable to the incurrence of Capital Lease Obligations or
otherwise financed by incurring Long-Term Indebtedness); minus
(f) the aggregate principal amount of Long-Term Indebtedness
repaid or prepaid by the Borrower and the Subsidiary Loan Parties during
such fiscal year,
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excluding (i) Eligible Secured Debt prepaid pursuant to Section 2.09(c)
or (d), and (ii) repayments or prepayments of Long-Term Indebtedness
financed by incurring other Long-Term Indebtedness.
"Excluded Taxes" means, with respect to either Agent, any Lender or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income or franchise taxes imposed on (or measured
by) its net income by the United States of America, or by the jurisdiction under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America
or any similar tax imposed by any other jurisdiction described in clause (a)
above and (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
(i) is in effect and would apply to amounts payable 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 any withholding tax pursuant to Section 2.15(a) or (ii) is
attributable to such Foreign Lender's failure to comply with Section 2.15(a).
"FCC" means the Federal Communications Commission.
"FCC Debt" means Indebtedness owing to the FCC in respect of the
deferred purchase price of any FCC License.
"FCC License" means any license granted by the FCC to the Borrower or
any Subsidiary Loan Party or that is used by the Borrower or any Subsidiary in
the conduct of its business.
"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
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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.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges" means, as of any date, the sum of (a) Cash Interest
Expense, (b) Capital Expenditures and (c) scheduled principal payments of
Indebtedness to be made by the Borrower or any Subsidiary Loan Party to any
Person other than the Borrower or any Subsidiary Loan Party, in each case
projected (to the extent necessary) for the period of four consecutive calendar
quarters of the Borrower beginning on such date or, if such date is not the
first day of a calendar quarter of the Borrower, beginning on the last day of
the calendar quarter of the Borrower most recently ended on such date.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"Full Availability Date" means the date on which the conditions set
forth in Section 4.03 are satisfied (or waived in accordance with Section 9.02).
"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
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advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation or to purchase (or to advance or supply funds for the purchase
of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain working
capital, equity capital or any other financial statement condition or liquidity
of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement among Holdings, the
Subsidiary Loan Parties and the Collateral Agent, substantially in the form of
Exhibit C.
"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 Cricket Communications Inc., a Delaware corporation.
"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
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purchase price of property or services (excluding current accounts payable
incurred in the ordinary course of business), (f) all Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit
and letters of guaranty (j) all obligations, contingent or otherwise, of such
Person in respect of bankers' acceptances and (k) all Disqualified Stock of such
Person. 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.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement among the Borrower, the
Subsidiary Loan Parties and the Collateral Agent, substantially in the form of
Exhibit D.
"Initial Availability Date" means the first date after the Effective
Date on which the conditions set forth in Section 4.02 are satisfied (or waived
in accordance with Section 9.02).
"Intercompany Agreements" has the meaning set forth in Section 5.15.
"Interest Borrowing" means any Borrowing of Loans hereunder for the
sole purpose of paying, and the proceeds of which are applied solely to pay,
accrued interest on any Loans or accrued commitment fees payable under this
Agreement.
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"Interest Election Request" means a request by the Borrower to convert
or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
LIBOR Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a LIBOR 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.
"Interest Period" means, with respect to any LIBOR 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
thereafter, as the Borrower may elect; provided, that (a) 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 (b) 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.
"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 any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Borrower ended on such date or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of the Borrower most recently ended prior to such date.
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"LIBOR", 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.
"LIBO Rate" means, with respect to any LIBOR Borrowing for any Interest
Period, the rate appearing on Page 3750 of the Telerate Service (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 LIBOR 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 (or, if the Administrative
Agent at the time is not a commercial bank, any commercial bank based in New
York City selected by the Administrative Agent for the purpose of quoting such
rate, provided that such commercial bank has a combined capital and surplus and
undivided profits of not less than $500,000,000) 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 Subsidiary" has the meaning assigned to such term in Section
6.13.
"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.
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"Loan Documents" means this Agreement, the Collateral Agency Agreement,
the Guarantee Agreement, the Parent Agreement, the Subordination Agreement, the
Security Documents and the Indemnity, Subrogation and Contribution Agreement.
"Loan Parties" means the Parent, Holdings, the Borrower and the
Subsidiary Loan Parties.
"Loans" means loans made to the Borrower pursuant to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"Lucent" means Lucent Technologies Inc.
"Lucent Lenders" means, at any time, Lucent and any Affiliates of
Lucent that are Lenders at such time.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition (financial or otherwise) of
the Borrower and the Subsidiary Loan Parties taken as a whole, (b) the ability
of any Loan Party to perform any of its obligations under any Loan Document or
(c) the rights of or benefits available to the Lenders under any Loan Document.
"Material Indebtedness" means (a) Indebtedness (other than the Loans),
or obligations in respect of one or more Hedging Agreements, of any one or more
of the Loan Parties in an aggregate principal amount exceeding $5,000,000, (b)
any FCC Debt or (c) any Permitted License Acquisition Debt. For purposes of
determining Material Indebtedness, the "principal amount" of the obligations of
a Loan Party in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that such
Loan Party would be required to pay if such Hedging Agreement were terminated at
such time.
"Maturity Date" means June 30, 2007.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other
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security document granting a Lien on any Mortgaged Property to secure the
Obligations. Each Mortgage shall be satisfactory in form and substance to the
Agents.
"Mortgaged Property" means each parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to
Section 5.12.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
received 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
fees and out-of-pocket expenses paid by the Borrower and the Subsidiary Loan
Parties 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 sale and leaseback transaction or a casualty or condemnation), the amount
of all payments required to be made by the Borrower and the Subsidiary Loan
Parties as a result of such event to repay Indebtedness (other than Eligible
Secured Debt) secured by such asset or otherwise subject to mandatory prepayment
as a result of such event, and (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by the Borrower and the Subsidiary Loan Parties, and
the amount of any reserves established by the Borrower and the Subsidiary Loan
Parties 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).
"Net Working Capital" means, at any date, (a) the sum of the
consolidated current assets and non-current deferred income tax assets of the
Borrower and the Subsidiary Loan Parties as of such date (excluding cash and
Permitted Investments) minus (b) the sum of the consolidated current liabilities
and non-current deferred income tax liabilities of the Borrower and the
Subsidiary Loan Parties as of such date (excluding current liabilities in
respect of Indebtedness), determined on a consolidated basis in accordance with
GAAP. Net Working Capital at any date may
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be a positive or negative number. Net Working Capital increases when it becomes
more positive or less negative and decreases when it becomes less positive or
more negative.
"Obligations" has the meaning assigned to such term in the Collateral
Agency Agreement.
"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.
"Parent" means Leap Wireless International, Inc., a Delaware
corporation.
"Parent Agreement" means the agreement between the Parent and the
Administrative Agent, substantially in the form of Exhibit E.
"Parent Pledge Agreement" means the Parent Pledge Agreement between the
Parent and the Collateral Agent, substantially in the form of Exhibit F.
"Payment Date" means each March 31, June 30, September 30 and December
31, commencing on and including the first such date that is on or after the
Availability Termination Date, and ending on and including the Maturity Date.
"Perfection Certificate" means a certificate in the form of Exhibit G
or any other form approved by the Agents.
"Permitted ChaseTel Financing" means financing extended by the Borrower
or any Subsidiary to ChaseTel prior to consummation of the ChaseTel Acquisition
in the form of (a) loans made by the Borrower (or by the Parent and assigned to
the Borrower) pursuant to the ChaseTel Credit Agreement prior to the Initial
Availability Date, (b) purchase money financing in respect of the purchase price
of equipment sold by Lucent to the Borrower or a Subsidiary and then resold to
ChaseTel on or after the
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Initial Availability Date and prior to the earlier of the consummation of the
ChaseTel Acquisition and the date one year after the Effective Date in
accordance with Section 6.04(c) or (c) other loans made by the Borrower to
ChaseTel on or after the Initial Availability Date and prior to the earlier of
the consummation of the ChaseTel Acquisition and the date one year after the
Effective Date; provided that:
(i) all such financing shall be made pursuant to the ChaseTel
Credit Agreement and secured (together with the other Indebtedness
outstanding under the ChaseTel Credit Agreement) by perfected,
first-priority Liens on substantially all the assets of ChaseTel and
its subsidiaries;
(ii) in the case of financing referred to in clauses (b) and
(c) above, the ChaseTel Credit Agreement and related documentation
shall have been amended to provide for such financing and the security
therefor, and such amendments and the related security arrangements
shall be reasonably satisfactory to the Administrative Agent;
(iii) in the case of financing referred to in clauses (b) and
(c) above, such financing shall not be subordinated to any other
Indebtedness and shall share pro rata in the benefits of the collateral
security for the Indebtedness outstanding under the ChaseTel Credit
Agreement;
(iv) in the case of financing referred to in clause (b) above,
the aggregate principal amount of such financing shall be limited as
set forth in Section 6.04(c);
(v) in the case of financing referred to in clause (c) above,
the aggregate principal amount of such financing made available to
ChaseTel shall not at any time exceed 50% of the aggregate principal
amount of financing referred to in clause (b) above that has been made
available to ChaseTel at such time;
(vi) all such financing shall be evidenced by promissory notes
of ChaseTel pledged pursuant to the Borrower Pledge Agreement;
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(vii) if any payment is received by the Borrower or any
Subsidiary from or on behalf of ChaseTel in respect of any such
financing, then such payment shall be applied to prepay an equal
principal amount of the outstanding principal amount of the outstanding
Borrowings hereunder; and
(viii) upon consummation of the ChaseTel Acquisition, all
obligations of ChaseTel in respect of such financing shall be
terminated and all collateral security therefor shall be released.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's and other like Liens imposed by law, arising
in the ordinary course of business and securing obligations that are
not overdue by more than 30 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;
(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) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII; and
(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;
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provided that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Holdings Debt" means Indebtedness of Holdings in
respect of debt securities issued in an underwritten public offering or
private placement pursuant to Rule 144A; provided that (a) such
Indebtedness shall not mature, nor shall any scheduled repayment of any
principal thereof be due, nor shall such Indebtedness be subject to any
mandatory redemption or required repurchase, conversion or exchange
(whether upon the occurrence of any contingency or otherwise, but
excluding contingent redemption offer provisions in the event of a
"change of control" or "asset sale" that are customary for similar debt
securities), in each case prior to the date that is one year after the
Maturity Date, (b) any covenants, events of default and similar
provisions relating thereto shall be reasonably satisfactory to the
Required Lenders, (c) the obligations of Holdings in respect thereof
shall not be Guaranteed by any other Loan Party or secured by any Lien,
(d) by its terms, no interest shall be payable in respect of such
Indebtedness (other than (i) by the issuance of additional Permitted
Holdings Debt or (ii) out of a cash reserve funded by Holdings from the
net proceeds of the issuance of such Indebtedness in an amount
sufficient to pay such cash interest) prior to the later of (A) the
date that is five years after the date of issuance of such Indebtedness
and (B) June 30, 2005, and (e) the net proceeds of such Indebtedness
(other than the portion, if any, of such net proceeds applied to fund
any cash reserve established to fund interest payments as provided
above) are contributed by Holdings to the Borrower as common equity.
"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
Xxxxx'x;
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(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.
"Permitted License Acquisition Debt" means Indebtedness (other than FCC
Debt) of any License Subsidiary in respect of the deferred purchase price of any
FCC License purchased by such License Subsidiary; provided that (a) such
Indebtedness shall not be secured by any Lien, other than a Lien on the Equity
Interests of the License Subsidiary that holds such FCC License, (b)
arrangements satisfactory to the Agents shall have been made for the Lien
granted under the Parent Pledge Agreement on the Equity Interests of such
License Subsidiary to be perfected, subject to the prior Lien referred to in
clause (a) above, (c) such Indebtedness shall mature within three years after
the date such Indebtedness is incurred, and (d) the holder of such Indebtedness
shall have entered into an agreement with the Administrative Agent, in form and
substance reasonably satisfactory to the Administrative Agent, pursuant to which
such holder shall have agreed to sell such Indebtedness to one or more of the
Lenders upon demand if an Event of Default has occurred and is continuing, for a
purchase price equal to the outstanding principal amount thereof and accrued and
unpaid interest thereon.
"Permitted Preferred Stock" means Disqualified Stock issued by
Holdings; provided that (a) by its terms, no dividends shall be payable in
respect of such stock (other than by the issuance of additional shares of
Permitted Preferred Stock) prior to the date that is one year after the Maturity
Date, (b) such stock shall not mature or be subject to mandatory redemption or
required repurchase, conversion or exchange (whether upon the occurrence of any
contingency or otherwise) prior to the date that is one year after the Maturity
Date, (c) any obligations of Holdings in
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respect of such stock shall not be Guaranteed by any other Loan Party or secured
by any Lien, and (d) the net proceeds of such stock are contributed by Holdings
to the Borrower as common equity.
"Permitted Third Party Payments" means (a) payments, not exceeding
$35,000,000, made to repay ChaseTel Indebtedness (other than any such
Indebtedness owed to Leap or any subsidiary of Leap, including the Borrower) in
connection with the ChaseTel Acquisition (or, if repaid by the Parent prior to
the Effective Date, to reimburse the Parent for such repayment), (b) loans made
to ChaseTel prior to consummation of the ChaseTel Acquisition that constitute
Permitted ChaseTel Financing under clause (c) of the definition of such term,
(c) payments in respect of the purchase price of equipment purchased by the
Borrower and its Subsidiaries other than pursuant to the Purchase Agreement,
provided that such equipment becomes Collateral under the Security Agreement
upon the purchase thereof (free of any Liens other than the Lien of the Security
Agreement) and (d) payments in respect of the purchase price of any FCC License
that is acquired by a License Subsidiary and is to be used in the business of
the Borrower and its Subsidiaries after the purchase thereof, provided that such
FCC License is acquired by a License Subsidiary free of any Liens and is not
purchased subject to any FCC Debt, Permitted License Acquisition Debt or other
Indebtedness; provided that, unless otherwise agreed by Lucent, payments
referred to in clauses (c) and (d) above shall be "Permitted Third Party
Payments" only if and to the extent that such payments are permitted to be
financed with the proceeds of Loans hereunder in accordance with the applicable
provisions of the Purchase Agreement.
"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.
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"Pledge Agreements" means the Borrower Pledge Agreement and the Parent
Pledge Agreement.
"POPS" means, with respect to any geographical area, the most recent
projection of the population of such geographic area as published in a
demographic data source based upon the most recent U.S. Census Bureau data, such
data source to be reasonably agreed upon by the Administrative Agent and the
Borrower.
"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 Loan Party, other than pursuant to
clause (i), (ii), (iii) or (iv) of Section 6.04(b); 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 Loan Party,
but only to the extent that the Net Proceeds therefrom have not been
applied to repair, restore or replace such property or asset within 180
days after such event.
"Primary Subordinated Obligation" has the meaning assigned to such term
in the Subordination Agreement.
"Prime Rate" means the rate of interest per annum published from time
to time in the "Money Rates" column (or any successor column) of The Wall Street
Journal as the prime rate or, if such rate shall cease to be so published or is
not available for any reason, the rate of interest publicly announced from time
to time by any commercial bank based in New York City selected by the
Administrative Agent for the purpose of quoting such rate; provided that if at
any time the Person serving as Administrative Agent is a commercial bank based
in New York City then the "Prime Rate" shall be the rate of interest per annum
publicly announced from time to time by such 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.
"Purchase Agreement" means the System Equipment Purchase Agreement
dated as of August 12, 1999, between the Borrower and Lucent.
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"Purchase Price" means amounts paid or payable to Lucent pursuant to
invoices delivered by Lucent pursuant to the Purchase Agreement, excluding any
such amounts attributable to sales taxes.
"Real Estate Subsidiary" has the meaning assigned to such term in
Section 6.12.
"Register" has the meaning set forth in Section 9.04.
"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.
"Repayment" means, in respect of any Indebtedness, the direct or
indirect repayment, prepayment, redemption, purchase, acquisition, defeasance,
retirement or other satisfaction of the principal of such Indebtedness, in whole
or in part, whether optional or mandatory. "Repay" has a meaning correlative
thereto.
"Required Lenders" means, at any time, Lenders having outstanding Loans
and Commitments representing more than 50% of the sum of the total outstanding
Loans and Commitments at such time; provided that at any time that Lucent
Lenders have outstanding Loans and Commitments representing more than 50% of the
sum of all outstanding Loans and Commitments at such time, "Required Lenders"
means each of (i) the Lucent Lenders at such time and (ii) other Lenders holding
more than 50% of the outstanding Loans and Commitments (excluding those held by
Lucent Lenders) at such time.
"Restricted Payment" means (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in Holdings, the Borrower or any Subsidiary Loan Party, 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 Equity Interest in Holdings, the
Borrower or any Subsidiary Loan Party or any option, warrant or other right to
acquire any such Equity Interest in Holdings, the Borrower or any Subsidiary
Loan Party or
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(b) any Repayment in respect of any Primary Subordinated Obligation or any
payment of interest thereon.
"S&P" means Standard & Poor's.
"Secondary Subordinated Obligation" has the meaning assigned to such
term in the Subordination Agreement.
"Security Agreement" means the Security Agreement among the Borrower,
the Subsidiary Loan Parties and the Collateral Agent, substantially in the form
of Exhibit H.
"Security Documents" means the Collateral Agency Agreement, the Pledge
Agreements, the Security Agreement, the Mortgages and each other security
agreement or other instrument or document executed and delivered pursuant to
Section 5.11 or 5.12 to secure any of the Obligations.
"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 any commercial banks subject to regulation by
the Board are subject with respect to the Adjusted LIBO Rate, 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. LIBOR 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.
"Subordination Agreement" means the Subordination Agreement among the
Loan Parties and the Collateral Agent, substantially in the form of Exhibit I.
"Subscribers" means customers of the Borrower's operating Subsidiaries
that are receiving wireless telecommunications service pursuant to a service
contract; provided that during the period from the Effective Date up to and
including the earlier of (a) the consummation of the
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ChaseTel Acquisition in accordance with Section 6.04 and (b) the date that is
one year after the Effective Date, "Subscribers" shall also include customers of
ChaseTel that are receiving wireless telecommunications service pursuant to a
service contract so long as the operation of such wireless telecommunications
service is being managed by the Borrower and its Subsidiaries pursuant to a
management contract with ChaseTel.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Subsidiary Loan Parties" means the Subsidiaries and the License
Subsidiaries.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Capitalization" means, as of any date, the sum (without
duplication) of (a) Total Indebtedness as of such date, plus (b) Total
Contributed Capital as of such date, plus (c) if positive, consolidated retained
earnings of the Borrower and the Subsidiary Loan Parties as of such date.
"Total Contributed Capital" means, as of any date, the sum (without
duplication) of (a) the amount of consolidated paid-in equity capital of the
Borrower and the Subsidiary Loan Parties as of such date, plus (b) the
outstanding principal amount of Indebtedness consisting of Primary Subordinated
Obligations as of such date; provided
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that "Total Contributed Capital" shall not include any of the foregoing to the
extent that the consideration received by the Borrower and the Subsidiary Loan
Parties therefore did not consist of either (i) cash or (ii) assets useful in
the business of the Borrower and the Subsidiary Loan Parties that the Borrower
and the Subsidiary Loan Parties would have been permitted to acquire hereunder
if cash had been received by the Borrower as consideration therefor. Any assets
referred to in clause (ii) shall be valued at the lesser of the cost or fair
market value of such assets at the time received by the Borrower and the
Subsidiary Loan Parties, it being understood that costs incurred and assets
contributed to capital of the Borrower prior to the Effective Date and treated
as paid-in equity capital in accordance with GAAP shall be valued at the amount
reflected on the Borrower's balance sheet as paid-in equity capital in
accordance with GAAP.
"Total Indebtedness" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of the Borrower and the Subsidiary
Loan Parties outstanding as of such date (excluding Indebtedness that
constitutes a Primary Subordinated Obligation), in the amount that would be
reflected on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of Indebtedness of
the Borrower and the Subsidiary Loan Parties outstanding as of such date
(excluding Indebtedness that constitutes a Primary Subordinated Obligation) that
is not required to be reflected on a balance sheet in accordance with GAAP,
determined on a consolidated basis; provided that, for purposes of clause (b)
above, the term "Indebtedness" shall not include contingent obligations of the
Borrower or any Subsidiary as an account party in respect of any letter of
credit or letter of guaranty unless such letter of credit or letter of guaranty
supports an obligation that constitutes Indebtedness.
"Transactions" means the execution, delivery and performance by the
Loan Parties of the Loan Documents, the borrowing of Loans and the use of the
proceeds thereof.
"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.
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"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.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., a "LIBOR
Loan"). Borrowings also may be classified and referred to by Type (e.g., a
"LIBOR 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 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 and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts, contract rights, licenses and intellectual
property.
SECTION 1.04. Accounting Terms; GAAP; Consolidation of License
Subsidiaries. (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
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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) Any determination required to be made under any Loan Document with
respect to the Borrower and the Subsidiary Loan Parties on a consolidated basis
shall be made as though the License Subsidiaries were consolidated subsidiaries
of the Borrower.
ARTICLE II
The Loans
SECTION 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make Loans to the Borrower at any time and
from time to time during the Availability Period in an aggregate principal
amount not exceeding its remaining Commitment at the time; provided that, prior
to the Full Availability Date, Loans shall not be made in respect of Contingent
Commitments. Amounts repaid in respect of Loans may not be reborrowed.
(b) If the Parent is required to prepay, and prepays, the ChaseTel
Loans pursuant to Section 7 of the Parent Agreement, then Lucent (in its
capacity as a Lender) agrees that, if the ChaseTel Acquisition is consummated in
accordance with this Agreement after the date of such prepayment and before the
date that is 18 months after the Effective Date, Lucent will, subject to the
same terms and conditions set forth herein with respect to other Loans, make a
Loan to the Borrower on the date of consummation of the ChaseTel Acquisition in
an aggregate principal amount equal to the aggregate principal amount of
ChaseTel Loans prepaid by the Parent. Lucent's agreement to make a Loan pursuant
to this paragraph (b) shall constitute a "Commitment" (commencing upon the date
on which the ChaseTel Loans are prepaid) for all purposes of this Agreement,
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except that such Commitment (i) shall be disregarded for purposes of funding
other Loans, (ii) may be reduced or terminated by the Borrower without reducing
or terminating other Commitments, (iii) when utilized, shall not require ratable
funding of Loans in respect of other Commitments, (iv) must be utilized with a
Borrowing on a single date on or within 15 Business Days after the date of
consummation of the ChaseTel Acquisition and (v) shall terminate on the earlier
of the date that is five Business Days after the date of consummation of the
ChaseTel Acquisition and the date that is 18 months after the Effective Date, if
not utilized prior to such date.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part
of a Borrowing consisting of Loans of the same Type made by the Lenders ratably
in accordance with their respective Commitments (disregarding Contingent
Commitments prior to the Full Availability Date). The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations 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 Borrowing shall be comprised entirely
of LIBOR Loans or ABR Loans as the Borrower may request in accordance herewith.
Each Lender at its option may make any LIBOR 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 LIBOR
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $3,000,000. At the time that each ABR
Borrowing (other than an Interest Borrowing) is made, such Borrowing shall be in
an aggregate amount that is not less than $3,000,000; provided that an ABR
Borrowing may be in an aggregate amount that is equal to the entire remaining
Commitments. Borrowings of more than one Type may be outstanding at the same
time; provided that there shall not at any time be more than a total of 12 LIBOR
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or
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to elect to convert or continue, any Borrowing as a LIBOR Borrowing if the
Interest Period requested with respect thereto would end after the Maturity
Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, the
Borrower shall notify the Administrative Agent of such request by telephone not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing; provided that, except for Interest Borrowings, the
Borrower may make only one request for a Borrowing in any single calendar month
(it being understood that all Borrowings made by the Borrower on the same date
shall be treated as a single request for a Borrowing for purposes of this
limitation). 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) the aggregate amount of such Borrowing and the use of
proceeds therefrom (and each written Borrowing Request shall attach
copies of the invoices to be paid with such proceeds, except to the
extent such Borrowing is to be applied to pay fees and interest payable
hereunder);
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be a LIBOR Borrowing or an
ABR Borrowing;
(iv) in the case of a LIBOR Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(v) if any proceeds of such Borrowing are to be applied to pay
the purchase price of Permitted Third Party Payments, the location and
number of the Borrower's account to which funds are to be disbursed,
which shall comply with Section 2.04.
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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 LIBOR 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 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. Such account shall be in New York, New York. The
Administrative Agent will make such Loans available to the Borrower (i) in the
case of amounts payable to Lucent, by promptly crediting the amounts so
received, in like funds, to an account of Lucent maintained with the
Administrative Agent and designated by Lucent for such purpose, (ii) in the case
of amounts payable to either Agent or any Lender, by promptly transmitting the
amounts so received to such Agent or Lender by wire transfer (or by crediting
the account of such Agent or Lender maintained with the Administrative Agent, if
applicable), in immediately available funds, or (iii) in the case of any other
amounts, by promptly transmitting the amounts so received to the Borrower by
wire transfer to an account of the Borrower in New York, New York (or crediting
the account of the Borrower maintained with the Administrative Agent in New
York, New York, if applicable), in immediately available funds, as designated by
the Borrower in the applicable Borrowing Request. Notwithstanding the foregoing,
(i) any Lender may make its Loan by crediting the amount thereof against any
amount payable to such Lender from the proceeds of such Borrowing and shall be
deemed to have made a Loan in the amount of such credit and (ii) the
Administrative Agent will make the Loans of the other Lenders available as
provided in the preceding sentence. So long as Lucent is the Administrative
Agent, any amounts to be made available or paid as provided above to an account
maintained with the Administration Agent may be made available or paid to an
account maintained with a commercial bank designated by Lucent for the purpose.
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(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 Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a
LIBOR 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 LIBOR
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 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
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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:
(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 a LIBOR
Borrowing or an ABR Borrowing; and
(iv) if the resulting Borrowing is a LIBOR 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 LIBOR 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 LIBOR 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
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long as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a LIBOR Borrowing and (ii) unless repaid, each
LIBOR Borrowing shall be converted to an ABR Borrowing at the end of the
Interest Period applicable thereto.
SECTION 2.06. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the earlier of (i) the
Availability Termination Date and (ii) the date of termination of the Purchase
Agreement.
(b) On the date of each Loan made by any Lender such Lender's
Commitment shall be reduced by an amount equal to such Loan.
(c) In the event that a prepayment of Loans would be required pursuant
to paragraph (b), (c) or (d) of Section 2.09, all Commitments then in effect
shall be reduced ratably by an aggregate amount equal to the excess, if any, of
the amount of the required prepayment over the aggregate principal amount of
Loans outstanding immediately prior to giving effect to such prepayment.
(d) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that each reduction of the Commitments
pursuant to this paragraph (d) shall be in an amount that is an integral
multiple of $1,000,000 and not less than $5,000,000.
(e) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (d) 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 such 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. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments pursuant to
paragraph (d) of this Section shall be made ratably among the Lenders in
accordance with their respective Commitments (including any Contingent
Commitments), except that the Borrower may elect, prior to the Full Availability
Date, to terminate or reduce Contingent Commitments without terminating or
reducing other Commitments.
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SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Loan of such
Lender as provided in Section 2.08.
(b) 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.
(c) 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.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall 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.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
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. 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).
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SECTION 2.08. Amortization of Loans. (a) Subject to adjustment pursuant
to paragraph (c) of this Section, the Borrower shall repay Borrowings on each
Payment Date set forth below in an aggregate amount equal to the percentage set
forth opposite such Payment Date multiplied by an amount equal to the sum of all
Loans made during the Availability Period (whether or not previously repaid):
Payment Date Percentage
------------ ----------
Each of first, second, third and fourth 1.25%
Each of fifth, sixth, seventh and eighth 3.75%
Each of ninth, tenth, eleventh and twelfth 5.00%
Each of thirteenth, fourteenth, fifteenth and sixteenth 6.25%
Each of seventeenth, eighteenth, nineteenth and twentieth 8.75%
(b) To the extent not previously paid, all Loans shall be due and
payable on the Maturity Date.
(c) Any prepayment of a Borrowing shall be applied to reduce the
subsequent scheduled repayments of the Borrowings to be made pursuant to this
Section in the inverse order of maturity thereof.
(d) Prior to any repayment of any Borrowings hereunder, the Borrower
shall select the Borrowing or Borrowings to be repaid and shall notify the
Administrative Agent by telephone (confirmed by telecopy) of such selection not
later than 2:00 p.m., New York City time, three Business Days before the
scheduled date of such repayment; provided that the Borrower shall select
Borrowings to be repaid such that each Lender shall receive its pro rata share
of such repayment as provided in Section 2.16. Each repayment of a Borrowing
shall be applied ratably to the Loans included in the repaid Borrowing.
Repayments of Borrowings shall be accompanied by the payment of accrued interest
on the amount thereof.
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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) Subject to paragraph (h) of this Section, in the event and on each
occasion that any Net Proceeds are received by or on behalf of the Borrower or
any Subsidiary Loan Party in respect of any Prepayment Event, the Borrower
shall, within three Business Days after such Net Proceeds are received, prepay
Borrowings in an aggregate principal amount equal to such Net Proceeds; provided
that, in the case of any event described in clause (a) of the definition of the
term Prepayment Event, if the Borrower shall deliver to the Administrative Agent
a certificate of a Financial Officer to the effect that the Borrower and the
Subsidiaries intend to apply the Net Proceeds from such event (or a portion
thereof specified in such certificate), within 180 days after receipt of such
Net Proceeds, to acquire real property, equipment or other tangible assets to be
used in the business of the Borrower and the Subsidiaries, and certifying that
no Default has occurred and is continuing, then no prepayment shall be required
pursuant to this paragraph in respect of the Net Proceeds in respect of such
event (or the portion of such Net Proceeds specified in such certificate, if
applicable) except to the extent of any such Net Proceeds therefrom that have
not been so applied by the end of such 180-day period, at which time a
prepayment shall be required in an amount equal to such Net Proceeds that have
not been so applied.
(c) Subject to paragraph (h) of this Section, following the end of each
fiscal year of the Borrower, commencing with the fiscal year during which the
Availability Termination Date occurs, the Borrower shall prepay Borrowings in an
aggregate principal amount 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 90 days after the end of such fiscal year).
(d) In the event and on each occasion that the Borrower or any
Subsidiary Loan Party Repays any Indebtedness of the Borrower or any Subsidiary
Loan Party then the Borrower shall, within three Business Days after the date of
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such Repayment, prepay Borrowings in an aggregate amount equal to the product of
(x) the sum of the aggregate principal amount of the Loans outstanding at the
time, multiplied by (y) a fraction, the numerator of which is the aggregate
principal amount of such Repayment, and the denominator of which is the amount
of Total Indebtedness immediately prior to such Repayment (excluding
Indebtedness in respect of the Loans and Indebtedness outstanding under
revolving credit facilities); provided that prepayments of Borrowings shall not
be required pursuant to this paragraph in respect of (i) Repayments of Loans,
(ii) any Repayment of Indebtedness to the extent such Repayment is refinanced by
incurring other Indebtedness that (A) has a scheduled maturity date that is on
or after the scheduled maturity date of the Indebtedness being refinanced, (B)
has a weighted average life to maturity that is equal to or longer than the
remaining weighted average life to maturity of the Indebtedness being
refinanced, determined immediately prior to giving effect to such Repayment, (C)
does not include any provisions that may require mandatory Repayment thereof
prior to scheduled maturity, other than scheduled repayments taken into
consideration in determining compliance with clause (B) above and other
provisions that are not materially more burdensome than any such provisions
included in the Indebtedness being refinanced, (D) is issued or incurred by the
same Person that issued or incurred the Indebtedness being refinanced and is not
Guaranteed or secured by any Lien unless the Indebtedness being refinanced was
Guaranteed or secured (in which case such Indebtedness shall not be Guaranteed
by any Person that did not Guarantee the Indebtedness being refinanced and shall
not be secured by a Lien on any asset that did not secure the Indebtedness being
refinanced), and (E) is subordinated to the Obligations on terms no less
favorable than the terms on which the Indebtedness being refinanced was so
subordinated, if such refinanced Indebtedness was so subordinated, (iii) any
Repayment of Indebtedness outstanding under a revolving credit facility to the
extent that (A) the commitments of the lenders to make loans thereunder remain
in effect after giving effect to such Repayment or are replaced by commitments
under a replacement revolving credit facility and (B) such commitments are not
reduced within six months thereafter, (iv) any Repayment of secured Indebtedness
in connection with the sale of the assets securing such Indebtedness, (v) any
Repayment of Indebtedness at the scheduled final maturity thereof or in
accordance with regularly scheduled amortization requirements prior to maturity
or (vi) any Repayment of other Eligible Secured
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Debt that constitutes a mandatory prepayment thereof in respect of a Prepayment
Event or Excess Cash Flow, to the extent that the Lenders receive a pro rata
prepayment in respect of such event pursuant to paragraph (b) or (c) of this
Section.
(f) 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 (g) of this Section; provided that the Borrower shall select
Borrowings to be prepaid such that each Lender shall receive its pro rata share
of such prepayment as provided in Section 2.16.
(g) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder not later than 11:00 a.m.,
New York City time, three Business Days before the date of prepayment. 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. Promptly following receipt of any such notice, 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 of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments of Borrowings shall be accompanied by the payment
of accrued interest on the amount prepaid.
(h) If any other Eligible Secured Debt is outstanding at the time that
any mandatory prepayment of Borrowings is required to be made pursuant to
paragraph (b) or (c) of this Section, then, to the extent that the terms of any
such other Eligible Secured Debt require that a mandatory prepayment be made of
such other Eligible Secured Debt pursuant to corresponding provisions applicable
thereto, the aggregate principal amount of such prepayment required to be made
hereunder shall be reduced by the aggregate principal amount of such
corresponding prepayments required to be made in respect of other Eligible
Secured Debt; provided that, in any event, each mandatory prepayment of
Borrowings required to be made pursuant to paragraph (b) or (c) of this Section
shall be in an aggregate principal
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amount not less than (i) the aggregate principal amount of Borrowings that would
be required to be prepaid if no other Eligible Secured Debt was outstanding at
the time, multiplied by (ii) a fraction, the numerator of which is the
outstanding principal amount of Loans at the time of and before giving effect to
such prepayment and the denominator of which is the aggregate principal amount
of all Eligible Secured Debt (including the Loans) outstanding at such time the
terms of which require such mandatory prepayment.
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 Commitment Fee Rate on the daily amount of the Commitment of
such Lender during the period from and including the Effective Date to but
excluding the date on which the Commitments terminate; provided that commitment
fees shall not commence to accrue with respect to Contingent Commitments until
the Full Availability Date. 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 the Commitments terminate, commencing on the first such date to
occur after the Effective Date. 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).
(b) The Borrower agrees to pay to Lucent, for its own account, fees in
the amounts and at the times separately agreed.
(c) The Borrower agrees to pay to the Administrative Agent and the
Collateral Agent (if other than Lucent), for its own account, fees in the
amounts and at the times separately agreed.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, (i) to the applicable Agent, (ii) to Lucent, in the
case of fees payable to it, or (iii) to the Administrative Agent, in the case of
commitment fees, for distribution to the Lenders entitled thereto. Fees paid
shall not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Margin.
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(b) The Loans comprising each LIBOR Borrowing shall bear interest at
the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus
the Applicable Margin.
(c) 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 2% plus the rate applicable to ABR Loans as provided in
paragraph (a) of this Section.
(d) All accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; 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, accrued interest on the
principal amount of such Loan repaid or prepaid shall be payable on the date of
such repayment or prepayment, and (iii) in the event of any conversion of any
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.
(e) 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.
SECTION 2.12. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a LIBOR Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
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(b) the Administrative Agent is advised by a majority in
interest of the Lenders participating in such Borrowing that the
Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their
Loans 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, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a LIBOR Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a LIBOR 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
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or LIBOR Loans made by such
Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any LIBOR Loan (or of maintaining its obligation
to make any such Loan) or to reduce the amount of any sum received or receivable
by such Lender hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender such additional amount or amounts as will
compensate such Lender for such additional costs incurred or reduction suffered.
(b) If any Lender 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 capital or on the capital of such Lender's holding company, if any, as
a consequence of this Agreement or the Loans made by such Lender to a level
below that which such Lender or such Lender's holding company could have
achieved but for
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such Change in Law (taking into consideration such Lender's policies and the
policies of such Lender's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lender's holding
company for any such reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender 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 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 to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrower shall not be required to
compensate a Lender pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender
notifies the Borrower of the Change in Law giving rise to such increased costs
or reductions and of such Lender'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 180-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 LIBOR 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 LIBOR Loan other than on the last day of the Interest
Period applicable thereto, (c) the failure to borrow, convert, continue or
prepay any Loan on the date specified in any notice delivered pursuant hereto,
or (d) the assignment of any LIBOR 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 LIBOR Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (i)
the amount of interest which would
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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 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 or Lender 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 and each
Lender, within 10 days after written demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes paid by the Administrative Agent or such Lender
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,
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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,
or by the Administrative Agent on its own behalf or on behalf of a Lender, shall
be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
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 United States of America, or
any treaty to which the United States of America 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; provided that such Foreign Lender has
received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
Set-Offs. (a) The Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest or
fees, 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 set-off or counterclaim. Any amounts received after
such time 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 The Chase Manhattan Bank, New York, New York, ABA no.
000000000, account no. 0000000000, phone no. (000) 000-0000 (or such other
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account in New York, New York as the Administrative Agent shall from time to
time specify by notice), except that payments pursuant to Sections 2.10(b),
2.10(c), 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) Each repayment or prepayment of principal of the Loans hereunder,
or selection of Borrowings for repayment or prepayment, shall be made such that
the benefit of such repayment or prepayment is shared by the Lenders ratably in
accordance with the aggregate principal amount of their respective Loans then
outstanding.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such 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 then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal then due to such parties.
(d) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans; provided that (i) if any such participations are
purchased
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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 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 set-off 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.
(e) 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 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 the amount due. In such event, if the
Borrower has not in fact made such payment, then each of the Lenders severally
agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender 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.
(f) Without limiting the generality of paragraph (a) above, the
Borrower's obligations to make each payment required to be made by it hereunder
or under any other Loan Document (whether of principal, interest, fees or
otherwise) shall be absolute and unconditional and shall not be subject to any
delay, reduction, set-off, counterclaim, defense or recoupment for any reason,
including any dispute with, breach of representation or warranty by or claim
against any supplier, manufacturer, installer, vendor or distributer, including
Lucent.
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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,
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, 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, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and (iii)
such assignment will result in a material 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.
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ARTICLE III
Representations and Warranties
Each of Holdings and the Borrower represents and warrants to the
Lenders that:
SECTION 3.01. Organization; Powers. Each of the Loan Parties is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, has all requisite power and authority to carry
on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, 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
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by Holdings and the Borrower and constitutes, and each other Loan
Document to which any Loan Party is or is to be a party constitutes (or, when
executed and delivered by it, will constitute) a legal, valid and binding
obligation of Holdings and 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 necessary
to perfect Liens created under the Security Documents, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of any Loan Party or any order of any Governmental Authority, (c) will
not violate or result in a default under any indenture, agreement or other
instrument binding upon any Loan Party or its assets, or give rise to a right
thereunder to require any payment to be made by any
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Loan Party, except for, until the consents and waivers required by Section
4.02(j) are received, the Credit Agreement dated as of September 23, 1998 among
the Parent, XXXXXXXX Xxxxxxxxxxxx and ABN Amro Bank N.V., as Administrative
Agent, and (d) will not result in the creation or imposition of any Lien on any
asset of any Loan Party, except Liens created under the Security Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Parent has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended August 31, 1998, reported on by PricewaterhouseCoopers
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
and the portion of the fiscal year ended May 31, 1999, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Parent and its consolidated subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.
(b) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statement of operations, stockholder's equity and
cash flows as of and for the fiscal year ended August 31, 1998, and as of and
for the portion of the fiscal year ended June 21, 1999, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower and its consolidated subsidiaries as of such dates and for such periods
in accordance with GAAP.
(c) Since June 21, 1999, there has been no material adverse change in
the business, assets, operations, prospects or condition (financial or
otherwise) of the Borrower and the Subsidiary Loan Parties, taken as a whole.
SECTION 3.05. Properties and Licenses. (a) Each of the Borrower and the
Subsidiary Loan Parties has good title to, or valid leasehold interests in, all
the real and personal property material to its business (other than licenses,
which are addressed in paragraph (d) of this Section), except for minor defects
in title that do not interfere with its ability to conduct its business as
currently conducted or proposed to be conducted.
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(b) Each of the Borrower and the Subsidiary Loan Parties owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and the Subsidiary Loan Parties 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 3.05A 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. As of the Effective Date, neither
Holdings, 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.
(d) Schedule 3.05B sets forth all FCC Licenses existing as of the
Effective Date (and the respective holders of such FCC Licenses) and all other
licenses and permits in effect as of the Effective Date that are material to the
business of the Borrower and the Subsidiary Loan Parties. Each of the FCC
Licenses, and each other license or permit that is material to the business of
the Borrower and the Subsidiary Loan Parties, is valid and in full force and
effect, and the Borrower and the Subsidiary Loan Parties are in compliance with
the terms and conditions thereof except where the failure to so comply could
not, individually or in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
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 Holdings or the Borrower,
threatened against or affecting any Loan Party (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
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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 in a Material Adverse Effect, none of the Loan Parties (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 of the Loan
Parties is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon 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, except for, until the consents
and waivers required by Section 4.02(j) are received, the Credit Agreement dated
as of September 23, 1998 among the Parent, XXXXXXXX Xxxxxxxxxxxx and ABN Amro
Bank N.V., as Administrative Agent. No Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. None of the Loan
Parties 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 of the Loan Parties has timely filed or
caused to be filed all Tax returns and reports 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 applicable Loan
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Party has set aside on its books adequate reserves or (b) the filing of state or
local Tax returns and reports, or the payment of state or local Taxes, to the
extent that the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
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 $5,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. Holdings and the Borrower have disclosed to
the Lenders all agreements, instruments and corporate or other restrictions to
which any of the Loan Parties 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. None of the 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) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, Holdings and the Borrower represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the
time.
SECTION 3.12. Subsidiaries. Holdings does not have any subsidiaries
other than the Borrower and the Borrower's Subsidiaries. Schedule 3.12 sets
forth as of the
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Effective Date (a) the name of, and the ownership interest of the Borrower in,
each Subsidiary of the Borrower and (b) the name of, and the ownership interest
of the Parent in, each License Subsidiary.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of all
insurance maintained by or on behalf of the Borrower and the Subsidiary Loan
Parties as of the Effective Date. As of the Effective Date, all premiums then
due and payable in respect of such insurance have been paid.
SECTION 3.14. Labor Matters. As of the Effective Date, there are no
strikes, lockouts or slowdowns against any Loan Party pending or, to the
knowledge of Holdings or the Borrower, threatened. The hours worked by and
payments made to employees of the Loan Parties 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. All payments due from any Loan Party, or
for which any claim may be made against any Loan Party, 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 applicable Loan Party. The
consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective
bargaining agreement to which any Loan Party is bound.
SECTION 3.15. Purchase Agreement. The Purchase Agreement is in full
force and effect. The Borrower is in compliance in all material respects with
the terms and conditions of the Purchase Agreement.
SECTION 3.16. Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (a) the computer systems
of the Borrower and its Subsidiaries (including any computer systems of the
Parent that are used in connection with the business of the Borrower and its
Subsidiaries) and (b) equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's systems
interface) and the testing of all such systems and equipment, as so
reprogrammed, have been completed. The cost to the Borrower and its Subsidiaries
of such reprogramming and testing and of the reasonably foreseeable consequences
of year 2000 to the Borrower and its Subsidiaries (including reprogramming
errors and the failure of others' systems or
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equipment) will not result in a Default or a Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans 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 Lenders shall be satisfied with the corporate and
legal structure and capitalization of Holdings, the Borrower and the
Subsidiary Loan Parties, including the charter and by-laws of Holdings,
the Borrower and each Subsidiary Loan Party and each agreement or
instrument evidencing Indebtedness.
(c) All Equipment Site Interests (if any) shall be owned by
Real Estate Subsidiaries in accordance with Section 6.12. Each FCC
License shall be owned by a License Subsidiary in accordance with
Section 6.13. No event shall have occurred that would subject any FCC
License to revocation by the FCC.
(d) The Purchase Agreement shall have been executed and
delivered by the Borrower and Lucent and shall be in full force and
effect.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Initial Availability Date. The obligations of the Lenders
to make Loans hereunder on the occasion of the first Borrowing hereunder shall
be subject to the occurrence of the Effective Date and the satisfaction
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(or waiver in accordance with Section 9.02) of the following additional
conditions:
(a) The Administrative Agent shall have received a favorable
written opinion or opinions (addressed to the Agents and the Lenders
and dated the Effective Date) of one or more counsel for the Loan
Parties reasonably satisfactory to the Administrative Agent,
collectively to the effect set forth in Exhibit J, and covering such
other matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Administrative Agent shall reasonably request.
Holdings and the Borrower hereby request their counsel referred to in
this paragraph to deliver such opinions.
(b) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and good
standing of the Loan Parties, the authorization of the Transactions and
any other legal matters relating to the Loan Parties, the Loan
Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent and its counsel.
(c) 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 conditions set forth in paragraphs (a) and (b) of
Section 4.04.
(d) The Agents and Lucent shall have received all fees and
other amounts due and payable to them hereunder on or prior to the
Initial Availability Date, including, to the extent invoiced,
reimbursement or payment of all expenses required to be reimbursed or
paid by the Borrower hereunder or under any other Loan Document.
(e) The Collateral and Guarantee Requirement shall have been
satisfied and the Agents shall have received a completed Perfection
Certificate dated the Effective Date and signed by a Financial Officer
of the Borrower, together with all attachments contemplated thereby,
including (i) the results of a search of the Uniform Commercial Code
(or equivalent) filings made with respect to the Borrower and the
Subsidiary Loan
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Parties in the jurisdictions contemplated by the Perfection Certificate
and (ii) copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the
Agents that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.02 or have been released.
(f) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect and that the Collateral Agent has been named as an additional
insured and loss payee under all insurance policies to be maintained
with respect to the properties of the Borrower and the Subsidiary Loan
Parties constituting the Collateral.
(g) The Collateral Agent shall have received a counterpart of
the Subordination Agreement duly executed and delivered on behalf of
each Loan Party.
(h) The Administrative Agent shall have received a counterpart
of the Parent Agreement duly executed and delivered on behalf of the
Parent.
(i) The Lenders shall have received a permit issued to the
Borrower by the California Department of Corporations pursuant to
Section 25113 of the California Corporation Code exempting the Loans
from California usury laws, or, if such permit is not issued, the
Lenders shall be reasonably satisfied that California usury laws shall
not be applicable to the Loans.
(j) The Parent shall have obtained all consents and waivers
required under the Credit Agreement dated as of September 23, 1998,
among the Parent, XXXXXXXX Xxxxxxxxxxxx and ABN Amro Bank N.V., as
Administrative Agent, in connection with the Transactions, on terms
reasonably satisfactory to the Lenders.
Notwithstanding the foregoing, the Lenders shall not be required to make Loans
hereunder 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
November 1, 1999 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
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SECTION 4.03. Full Availability Date. The obligation of each Lender
with a Contingent Commitment to make any Loans in respect of such Contingent
Commitment is subject to the occurrence of the Initial Availability Date and the
execution and delivery by the Borrower and Lucent of an amendment to the
Purchase Agreement (or a separate purchase contract, in which case such separate
purchase contract shall be deemed to constitute a part of the Purchase Agreement
for purposes of the Loan Documents) providing for the purchase of additional
equipment from Lucent with an aggregate purchase price of not less than
$75,000,000.
SECTION 4.04. Each Borrowing. The obligation of each Lender to make a
Loan on the occasion of any Borrowing is subject to the satisfaction of the
following conditions:
(a) At the time of and immediately after giving effect to such
Borrowing, the representations and warranties of the Loan Parties set
forth in the Loan Documents shall be true and correct on and as of the
date of such Borrowing.
(b) At the time of and immediately after giving effect to such
Borrowing, no Default shall have occurred and be continuing.
(c) At the time of and immediately after giving effect to such
Borrowing, (i) the aggregate principal amount of all Loans (excluding
up to $30,000,000 of Loans made to finance the Permitted Third Party
Payments described in clause (a) of the definition of "Permitted Third
Party Payments") made hereunder (whether or not repaid) shall not
exceed [*] of the sum of the aggregate Purchase Price payments made to
Lucent at or prior to such time, (ii) the ratio of Total Indebtedness
to Total Contributed Capital shall not exceed 2.0 to 1.0 and (iii) the
aggregate principal amount of all Eligible Secured Debt described in
clauses (a), (b) and (c) of the definition of "Eligible Secured Debt"
that has been incurred (on a cumulative basis, whether or not such
Eligible Secured Debt remains outstanding) shall not exceed
$1,200,000,000.
(d) In the case of a Borrowing to finance the Purchase Price
of any assets, a License Subsidiary shall have a valid FCC License for
the geographic
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange
Commission.
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market in which such assets are to be installed or operated; provided
that the condition set forth in this paragraph (d) shall not apply with
respect to Borrowings to finance the Purchase Price of assets that are
being resold to ChaseTel prior to consummation of the ChaseTel
Acquisition in accordance with Section 6.04(c).
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a),
(b), (c) and (d) 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, each of Holdings and the Borrower covenants and agrees with the Lenders
that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of (i) each fiscal year of
the Borrower (beginning with the fiscal year ending August 31, 2000)
and (ii) each calendar year (beginning with the calendar year ending
December 31, 2000), (A) the audited consolidated balance sheets of each
of the Parent and its subsidiaries and of the Borrower and its
Subsidiaries, respectively, and their respective 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 or calendar year, as the case may
be, all reported on by PricewaterhouseCoopers LLP or other independent
public accountants of recognized national standing (without a "going
concern" or like qualification or 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
each of the Parent and its
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subsidiaries and of the Borrower and its Subsidiaries, respectively, in
each case on a consolidated basis in accordance with GAAP consistently
applied and (B) a combined consolidated balance sheet of the Borrower
and the Subsidiary Loan Parties and related statements of operations,
stockholders' equity and cash flows, for the same period as (and
prepared based on) the financial statements referred to in clause (A)
above, consolidated as though all the License Subsidiaries were
subsidiaries of the Borrower, and prepared by the same firm of
independent public accountants as reported on such financial
statements;
(b) within 45 days after the end of (i) each of the first
three fiscal quarters of each fiscal year of the Borrower and (ii) each
of the first three calendar quarters of each calendar year, (i) the
consolidated balance sheets of each of the Parent and its subsidiaries
and of the Borrower and its Subsidiaries, respectively, and their
respective related statements of operations, stockholders' equity and
cash flows as of the end of and for such fiscal quarter or calendar
year and the then elapsed portion of the fiscal year or calendar year,
as the case may be, 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 or
previous calendar year, as the case may be, all certified by one of its
Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of each of the Parent and
its subsidiaries and of the Borrower and its Subsidiaries,
respectively, in each case on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments
and the absence of footnotes and (B) a combined consolidated balance
sheet of the Borrower and the Subsidiary Loan Parties and related
statements of operations, stockholders' equity and cash flows, for the
same period as (and prepared based on) the financial statements
referred to in clause (A) above, consolidated as though all the License
Subsidiaries were subsidiaries of the Borrower, and prepared and
certified by one of the Borrower's Financial Officers;
(c) within 30 days after the end of each fiscal month of the
Borrower, the consolidated balance sheet of the Borrower and its
Subsidiaries and related statements of operations, stockholders' equity
and cash
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flows as of the end of and for such fiscal month and the then elapsed
portion of the fiscal year, all certified by one of its Financial
Officers as presenting in all material respects the financial condition
and results of operations of the Borrower and its Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(d) concurrently with any delivery of the Borrower's financial
statements under clause (a) or (b) above, a certificate of a Financial
Officer of the Borrower (i) certifying as to whether 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 6.15, 6.18, 6.19, 6.20 and 6.21 (for statements relating
to a calendar year or calendar quarter), 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;
(e) 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 financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(f) promptly after the same become available but in any event
within 30 days after the end of each fiscal year of the Borrower, the
Business Plan for the current fiscal year and updated financial
projections through the Maturity Date;
(g) promptly after the end of (i) each fiscal year of the
Borrower and each calendar year and (ii) each calendar quarter ending
March 31, 2000, June 30, 2000, September 30, 2000, December 31, 2000,
March 31, 2001, June 30, 2001, September 30, 2001 and December 31, 2001
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a certificate signed on behalf of the Borrower by the President, a Vice
President or a Financial Officer of the Borrower, setting forth the
number of Covered POPS and the number of Subscribers as of the end of
such fiscal year;
(h) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by any Loan Party 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, or
distributed by the Parent to its shareholders generally or by Holdings
to its securityholders generally, as the case may be;
(i) promptly after execution thereof, copies of any agreement,
instrument or other document evidencing or governing any other Eligible
Secured Debt and of any amendment or modification thereto or waiver
thereunder; and
(j) 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, as either Agent or any Lender may
reasonably request.
SECTION 5.02. Notices of Material Events. 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 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 liability of the Borrower and the Subsidiary Loan
Parties in an aggregate amount exceeding $1,000,000; and
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(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 Agents prompt written notice of any change (i) in the Borrower's
or any Subsidiary Loan Party's corporate 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 the Borrower's or any Subsidiary Loan
Party's chief executive office, its principal place of business, any office in
which it maintains books or records relating to the Collateral or any premises
where any asset constituting Collateral is installed or situated (including the
installation of any asset constituting Collateral at a location where Collateral
has not previously been located), (iii) in the Borrower's or any Subsidiary Loan
Party's identity or corporate structure or (iv) in the Borrower's or any
Subsidiary 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 Collateral Agent to continue at all times
following such change to have a valid, legal and perfected security interest in
all the Collateral. The Borrower also agrees promptly to notify the Agents if
any material portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements
for the Borrower with respect to the preceding fiscal year pursuant to clause
(a) of Section 5.01, the Borrower shall deliver to the Agents 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
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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. Each of Holdings and the
Borrower will, and will cause each of the Subsidiary Loan Parties 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 and
franchises material to the conduct of the business of the Borrower and the
Subsidiary Loan Parties, taken as a whole; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution permitted under
Section 6.03.
SECTION 5.05. Payment of Obligations. Each of Holdings and the Borrower
will, and will cause each of the Subsidiary Loan Parties to, pay its
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 Loan Party has set aside on its books adequate
reserves with respect 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
the resolution of such contest could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Borrower will, and will
cause each of the Subsidiary Loan Parties to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.07. Insurance. (a) The Borrower will, and will cause each of
the Subsidiary Loan Parties to, maintain, with financially sound and reputable
insurance companies, insurance in such amounts and against such risks
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(including fire and other risks insured by extended coverage) as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations, including public liability insurance against
claims for personal injury, death or property damage occurring upon, about or in
connection with the use of any properties owned, occupied or controlled by it as
well as such other insurance as may be required by law.
(b) All policies of casualty insurance maintained by or for the benefit
of the Borrower or any Subsidiary Loan Party with respect to any of the
Collateral shall be endorsed or otherwise amended to include a "standard" or
"New York" lender's loss payable endorsement, in favor of and satisfactory to
the Collateral Agent, which endorsement shall provide that the insurance carrier
shall pay all proceeds otherwise payable to any Loan Party under such policies
directly to the Collateral Agent. All such policies also shall provide that none
of the Loan Parties, the Administrative Agent, the Collateral Agent nor any
other party shall be a coinsurer thereunder and shall contain a "Replacement
Cost Endorsement", without any deduction for depreciation, "mortgagee's
interest"/"breach of warranty coverage" and such other provisions as the
Administrative Agent or the Collateral Agent may reasonably require from time to
time to protect the interests of the Lenders. Each such policy also shall
provide that it shall not be canceled, modified or not renewed (i) by reason of
nonpayment of premium except upon not less than 10 days' prior written notice
thereof by the insurer to the Administrative Agent and the Collateral Agent
(giving the Administrative Agent and the Collateral Agent the right to cure
defaults in the payment of premiums) or (ii) for any other reason except upon
not less than 30 days' prior written notice thereof by the insurer to the
Administrative Agent and the Collateral Agent. The Borrower shall deliver to the
Administrative Agent and the Collateral Agent, prior to the cancelation,
modification or nonrenewal of any such policy of insurance, a copy of a renewal
or replacement policy (or other evidence of renewal of a policy previously
delivered to the Administrative Agent and the Collateral Agent) together with
evidence satisfactory to the Administrative Agent and the Collateral Agent of
payment of the premium therefor.
(c) The Borrower shall notify the Administrative Agent and the
Collateral Agent immediately whenever any separate insurance concurrent in form
or contributing in the event of loss with that required to be maintained under
this
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Section is taken out by any Loan Party, and shall promptly deliver to the
Administrative Agent and the Collateral Agent a duplicate original copy of such
policy or policies.
SECTION 5.08. Books and Records; Inspection Rights. Each of Holdings
and the Borrower will, and will cause each of the Subsidiary Loan Parties to,
keep proper books of record and account in which full, true and correct entries
are made of all dealings and transactions in relation to its business and
activities. Each of Holdings and the Borrower will, and will cause each of the
Subsidiary Loan Parties to, permit any representatives designated by either
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 during normal business hours but as often as reasonably
requested.
SECTION 5.09. Compliance with Laws and Agreements. Each of Holdings and
the Borrower will, and will cause each of the Subsidiary Loan Parties to, comply
with all laws, rules, regulations and orders of any Governmental Authority
(including ERISA and all Environmental Laws) applicable to it or its property
and all indentures, agreements and other instruments binding upon 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.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans will be used
solely (a) to make payments in respect of the Purchase Price and Permitted Third
Party Payments and (b) to pay fees payable under Sections 2.10(a), 2.10(b) and
2.10(c), interest payable to Lucent, the Agent or the Lenders under this
Agreement and out-of-pocket expenses incurred in connection with the
negotiation, execution and delivery of the Loan Documents.
SECTION 5.11. Additional Subsidiaries. If any additional Subsidiary
Loan Party is formed or acquired after the Effective Date, the Borrower will,
within three Business Days after such Subsidiary Loan Party is formed or
acquired, (a) notify the Agents and the Lenders thereof, (b) cause the
Collateral and Guarantee Requirement to be satisfied with respect to such
Subsidiary Loan Party and with respect to any Equity Interest in or Indebtedness
of such Subsidiary Loan Party owned by or on behalf of any Loan Party and
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(c) cause such Subsidiary Loan Party to become a party to the Subordination
Agreement.
SECTION 5.12. Further Assurances. (a) Each of Holdings and the Borrower
will, and will cause each Subsidiary 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 either Agent or the Required Lenders
may reasonably request, to cause the Collateral and Guarantee Requirement to be
and remain satisfied, all at the expense of the Loan Parties. The Borrower also
agrees to provide to the Agents, from time to time upon request, evidence
reasonably satisfactory to the Agents as to the perfection and priority of the
Liens created or intended to be created by the Security Documents.
(b) If any material assets (including any real property or improvements
thereto or any interest therein, but excluding Equipment Site Interests acquired
by Real Estate Subsidiaries) are acquired by the Borrower or any Subsidiary Loan
Party after the Effective Date (other than assets constituting Collateral under
the Security Agreement that become subject to the Lien of the Security Agreement
upon acquisition thereof), the Borrower will notify the Agents 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 Subsidiary 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 Loan Parties.
SECTION 5.13. Casualty and Condemnation. (a) The Borrower will furnish
to the Agents and the Lenders prompt written notice of any casualty or other
damage to any portion of any Collateral or the commencement of any action or
proceeding for the taking of any Collateral or any part thereof or interest
therein 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
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Collateral Agent is authorized to collect such Net Proceeds and, if received by
the Borrower or any Subsidiary Loan Party, such Net Proceeds shall be paid over
to the Collateral Agent. All such Net Proceeds retained by or paid over to the
Collateral Agent shall be held by the Collateral Agent and released from time to
time to pay the costs of repairing, restoring or replacing the affected property
or purchasing additional property constituting Collateral in accordance with the
terms of this Agreement and the applicable provisions of the Security Documents,
subject to the provisions of the Security Documents regarding application of
such Net Proceeds during a Default.
(c) If any Net Proceeds retained by or paid over to the Collateral
Agent as provided above continue to be held by the Collateral Agent on the date
that any prepayment is due pursuant to Section 2.09(b) in respect 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 5.14. Interest Rate Protection. After the consolidated
Long-Term Indebtedness (excluding Primary Subordinated Obligations) of the
Borrower and the Subsidiary Loan Parties exceeds $225,000,000, the Borrower will
from time to time enter into and maintain in effect one or more Hedging
Agreements satisfactory to the Required Lenders, the effect of which shall be to
fix or limit the interest cost to the Borrower and the Subsidiary Loan Parties
with respect to such portion of their Long-Term Indebtedness as shall be
necessary in order that, at all times, at least 50% of consolidated Long-Term
Indebtedness (excluding Primary Subordinated Obligations) of the Borrower and
the Subsidiary Loan Parties shall be comprised of a combination of (a)
Indebtedness bearing interest at a fixed rate and (b) Indebtedness covered by
such Hedging Agreements.
SECTION 5.15. Intercompany Agreements. Each of Holdings and the
Borrower agrees that, within 90 days after the Effective Date, all intercompany
agreements and arrangements between Holdings, the Borrower or any Subsidiary
Loan Party, on the one hand, and the Parent or any other Affiliate of Holdings,
the Borrower or any Subsidiary Loan Party (other than Holdings, the Borrower or
any Subsidiary Loan Party), on the other hand, including with respect to tax
sharing, management fees or sharing of facilities, services or employees, shall
be completed on terms and conditions reasonably satisfactory to the Required
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Lenders and shall be set forth in written agreements (the "Intercompany
Agreements") reasonably satisfactory in form and substance to the Required
Lenders, and true and correct copies of such Intercompany Agreements shall have
been delivered to the Lenders.
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,
each of Holdings and the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Preferred Stock. The Borrower will not, nor
will it permit any Subsidiary Loan Party to, create, incur, assume or permit to
exist any Indebtedness or issue any preferred stock, except:
(a) Indebtedness created under the Loan Documents and other Eligible
Secured Debt;
(b) subject to Section 6.04, Indebtedness of the Borrower to any
Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary;
(c) subject to Section 6.04, Guarantees by the Borrower of Indebtedness
of any Subsidiary;
(d) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets by
the Borrower or such Subsidiary (other than assets that are an integral part of
any of the telecommunications or data network systems of the Borrower and its
Subsidiaries or other assets that become accessions to such assets or the
removal or loss of which would adversely affect the value of any such 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; provided that (A) such Indebtedness is
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement and (B) any such Indebtedness incurred in
connection with any particular acquisition, construction or improvement shall
not exceed 90% of the cost of such
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acquisition, construction or improvement; provided further that the aggregate
principal amount of such Indebtedness (and Indebtedness incurred to refinance
such Indebtedness permitted by clause (f) below) shall not exceed $10,000,000 at
any time outstanding;
(e) Indebtedness outstanding on the Effective Date and set forth on
Schedule 6.01;
(f) Indebtedness of the Borrower incurred to refinance any Indebtedness
referred to in clause (d) or (e) above and Indebtedness of any Subsidiary
incurred to refinance any Indebtedness of such Subsidiary referred to in clause
(d) or (e) above; provided that (i) the principal amount of any such
Indebtedness does not exceed the principal amount of, plus accrued interest and
any prepayment premiums applicable to, the Indebtedness refinanced thereby, (ii)
any such Indebtedness has a scheduled maturity date that is on or after the
scheduled maturity date of the Indebtedness refinanced thereby, (iii) any such
Indebtedness has a weighted average life to maturity that is equal to or longer
than the remaining weighted average life to maturity of the Indebtedness
refinanced thereby (determined immediately prior to giving effect to such
refinancing), (iv) any such Indebtedness does not include any provisions that
may require mandatory Repayment thereof prior to scheduled maturity, other than
scheduled repayments taken into account in determining compliance with clause
(iii) above and other provisions that are not materially more burdensome than
any such provisions included in the Indebtedness refinanced thereby, (v) any
such Indebtedness shall not be secured by any Lien other than Liens on assets
securing the Indebtedness being refinanced thereby, and shall not be Guaranteed
by any Subsidiary other than any Subsidiary that Guaranteed the Indebtedness
being refinanced thereby, and (vi) if the Indebtedness being refinanced is
subordinated to the Obligations, then such refinancing Indebtedness shall be
subordinated to the Obligations on terms no less favorable to the Lenders than
the Indebtedness being refinanced;
(g) Indebtedness of the Borrower that constitutes a Primary
Subordinated Obligation;
(h) other unsecured Indebtedness of the Borrower in an aggregate
principal amount not exceeding $5,000,000 at any time outstanding; and
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(i) FCC Debt and Permitted License Acquisition Debt of any
License Subsidiary incurred to finance the purchase of any FCC License owned by
such License Subsidiary; provided that (i) the aggregate principal amount of FCC
Debt and Permitted License Acquisition Debt of any License Subsidiary shall not
exceed 75% of the sum of such principal amount plus the additional cash
consideration paid to acquire the FCC License or Licenses acquired by such
License Subsidiary, and (ii) the aggregate principal amount of Permitted License
Acquisition Debt incurred on a cumulative basis during the term of this
Agreement shall not exceed [*].
SECTION 6.02. Liens. (a) The Borrower will not, nor will it
permit any Subsidiary Loan Party 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 Security Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
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 Loan Party and (B) such Lien
shall secure only those obligations which it secures on the date hereof
and refinancings thereof that satisfy the criteria set forth in clause
(f) of Section 6.01;
(iv) any Lien existing on any property or asset prior to the date
that such property or asset was first acquired by the Borrower or any
Subsidiary or any Affiliate thereof 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, (B) such Lien shall
not apply to any other property or assets of the Borrower or any
Subsidiary Loan Party 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, and refinan-
[*] Certain material (indicated by an asterisk) has been omitted from this
document pursuant to a request for confidential treatment. The omitted
material has been filed separately with the Securities and Exchange
Commission.
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cings thereof that satisfy the criteria set forth in clause (f) of
Section 6.01;
(v) Liens on fixed or capital assets (other than assets that are
an integral part of any of the telecommunications or data network
systems of the Borrower and its Subsidiaries or other assets that become
accessions to such assets or the removal or loss of which would
adversely affect the value of any such assets) acquired, constructed or
improved by the Borrower or a Subsidiary; provided that (A) such Liens
secure only Indebtedness permitted by clause (d) of Section 6.01 or a
refinancing thereof permitted by clause (f) of Section 6.01, (B) such
Liens and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does
not exceed 90% of the cost of acquiring, constructing or improving such
fixed or capital assets and (D) such Liens shall not apply to any other
property or assets of the Borrower or any Subsidiary Loan Party; and
(vi) any Lien on any FCC License owned by any License Subsidiary
securing FCC Debt of such Subsidiary incurred to finance the purchase of
such FCC License.
(b) Notwithstanding the foregoing, the Borrower will not, nor
will it permit any Subsidiary Loan Party to, create any Lien (other than any
Permitted Encumbrance, Liens created under the Security Documents and Liens
permitted by clause (vi) of Section 6.01(a) above) on any FCC License.
SECTION 6.03. Fundamental Changes; Corporate Structure. (a)
Neither Holding nor the Borrower will, nor will they permit any Subsidiary Loan
Party to, merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all or
substantially all of its assets, or all or substantially all of the Equity
Interests of any of any Subsidiary Loan Party (in each case, whether now owned
or hereafter acquired), 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 may merge into any other
Subsidiary, (ii) any Subsidiary may sell, transfer, lease or otherwise dispose
of its assets to
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another Subsidiary, (iii) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in its
best interests and is not materially disadvantageous to the Lenders or (iv) a
Subsidiary may merge as contemplated by clause (vi) of Section 6.04(a) in
connection with the ChaseTel Acquisition.
(b) The Borrower will not, nor will it permit any of its
Subsidiaries to, engage to any material extent in any business other than the
wireless telecommunications and data networking business and businesses
reasonably related thereto, in each case in the United States.
(c) The Borrower will conduct business through one or more
operating Subsidiaries, which Subsidiaries shall own all equipment and other
assets (other than FCC Licenses and Equipment Site Interests) used to conduct
such business.
(d) The Borrower will conduct business as a holding company and
will not own any material assets other than investments in the Subsidiaries.
Each Subsidiary will be wholly owned by the Borrower and will be either (i) an
operating Subsidiary formed for the purpose of conducting business in one or
more geographical markets as contemplated by paragraph (c) above or (ii) a Real
Estate Subsidiary.
(e) The Borrower will not issue any Equity Interests (or
warrants, options or other rights in respect thereof) other than shares of
common stock issued to Holdings that are pledged pursuant to the Borrower Pledge
Agreement. The Borrower will not permit any Subsidiary Loan Party to issue any
Equity Interests (or warrants, options or other rights in respect thereof) other
than (i) Equity Interests issued by Subsidiaries to the Borrower that are
pledged pursuant to the Borrower Pledge Agreement and (ii) Equity Interests
issued by License Subsidiaries to the Parent that are pledged pursuant to the
Parent Pledge Agreement.
(f) The Borrower will not (i) have any Subsidiaries organized in
a jurisdiction outside the United States of America or (ii) permit any
Collateral or other assets owned by the Borrower or any Subsidiary to be located
in a jurisdiction outside of the United States.
(g) Holdings will not issue any Equity Interests (or warrants,
options or other rights in respect thereof) other than (i) Equity Interests
issued to the Parent,
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(ii) shares of common stock of Holdings issued to Persons other than the Parent
or any Affiliate of the Parent and that do not result in a Change of Control and
(iii) Permitted Preferred Stock of Holdings issued in compliance with the
applicable provisions of this Agreement. The Net Proceeds of any such Equity
Interests issued by Holdings shall be contributed by Holdings to the Borrower as
common equity (except any such Net Proceeds retained by Holdings to pay interest
on Permitted Holdings Debt or to pay the ChaseTel Earnout).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions; Asset Sales. (a) The Borrower will not, nor will it permit any
Subsidiary Loan Party 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 Equity Interests in, 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:
(i) Permitted Investments;
(ii) investments by the Borrower in Equity Interests in the
Subsidiaries;
(iii) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower; provided that all such loans
and advances shall be evidenced by promissory notes pledged pursuant to
the Borrower Pledge Agreement and shall be subordinated to the
Obligations as provided in the Subordination Agreement;
(iv) Guarantees by the Borrower of obligations of the
Subsidiaries;
(v) investments by the Borrower and the Subsidiaries 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;
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(vi) the ChaseTel Acquisition may be consummated; provided that
(A) the ChaseTel Acquisition shall be consummated in accordance with the
ChaseTel Purchase Agreement, without giving effect to any amendment or
modification thereto or waiver thereunder that has not been approved by
the Required Lenders (which approval shall not be unreasonably
withheld), (B) ChaseTel shall become a wholly owned Subsidiary, either
as a result of the ChaseTel Acquisition or by merger with a wholly owned
Subsidiary promptly upon consummation of the ChaseTel Acquisition, (C)
ChaseTel Licensee shall become a License Subsidiary as a result of the
ChaseTel Acquisition, (D) neither the Borrower nor any Subsidiary Loan
Party shall be directly or indirectly liable for the ChaseTel Earnout
(except that the Borrower may agree to be liable therefor, subject to
the same conditions that would apply to Restricted Payments pursuant to
clause (c) of Section 6.06, and provided that any such obligation of the
Borrower shall be subordinated to the Obligations on terms satisfactory
to the Administrative Agent), (E) the ChaseTel Indebtedness shall be
fully repaid (or, in the case of any such Indebtedness owing to the
Parent or any of its subsidiaries, including the Borrower, forgiven and
discharged without consideration) and all Liens securing the ChaseTel
Indebtedness shall be released and terminated upon consummation of the
ChaseTel Acquisition and (F) the Collateral and Guarantee Requirement
shall be satisfied promptly upon consummation of the ChaseTel
Acquisition; and
(vii) Permitted ChaseTel Financing.
(b) The Borrower will not, nor will it permit any Subsidiary Loan
Party to, sell, transfer, lease or otherwise dispose of any asset, including any
Equity Interest in any other Person owned by it, except:
(i) sales of inventory, obsolete, uneconomic or surplus
equipment and Permitted Investments, in each case in the ordinary course
of business;
(ii) transfers constituting investments permitted by paragraph
(a) of this Section or Restricted Payments permitted by Section 6.06;
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(iii) sales, transfers and dispositions by the Borrower or a
Subsidiary to the Borrower or a Subsidiary;
(iv) prior to consummation of the ChaseTel Acquisition, the
Borrower or a Subsidiary may resell to ChaseTel equipment purchased by
the Borrower or a Subsidiary pursuant to the Purchase Agreement, in
accordance with paragraph (c) of this Section; and
(v) other sales and dispositions by the Borrower and the
Subsidiaries of assets (other than Equity Interests in any Subsidiary)
with a fair market value not exceeding, in the aggregate, $1,000,000
during any fiscal year of the Borrower;
provided that all sales, transfers, leases and other dispositions permitted
hereby (other than pursuant to clause (iii) above) shall be made for fair value
and solely for cash consideration (except that sales pursuant to clause (iv)
above shall be made as provided in paragraph (c) below).
(c) Prior to consummation of the ChaseTel Acquisition (but not
after the date that is one year after the Effective Date), the Borrower or a
Subsidiary may resell to ChaseTel any equipment purchased by the Borrower or a
Subsidiary pursuant to the Purchase Agreement and may finance any such sale with
Permitted ChaseTel Financing (referred to in clause (b) of the definition of
"Permitted ChaseTel Financing") in a principal amount equal to the Purchase
Price paid or payable in respect of such equipment; provided that:
(i) the price at which any such equipment is sold to ChaseTel
shall be equal to the price at which such equipment was purchased
pursuant to the Purchase Agreement;
(ii) the obligation of ChaseTel to pay the purchase price for
such equipment shall be financed with such Permitted ChaseTel Financing
in a principal amount equal to such purchase price, bearing interest at
a rate that is not less than the rate of interest applicable to the
Loans hereunder;
(iii) if any payment is received by the Borrower or any
Subsidiary from or on behalf of ChaseTel in respect
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of any such resale of equipment or any such Permitted ChaseTel
Financing, then such payment shall be applied to prepay an equal
principal amount of the outstanding Borrowings hereunder;
(iv) the Borrower shall notify the Administrative Agent of each
resale of equipment to ChaseTel pursuant to this paragraph at or prior
to the date of such resale, which notice shall specify the Purchase
Price of the equipment being resold; and
(v) neither the Borrower nor any Subsidiary shall sell to or
finance any equipment for ChaseTel as contemplated hereby that would
result in the total Purchase Price of all such equipment exceeding
$40,000,000.
SECTION 6.05. Hedging Agreements. The Borrower will not, nor will
it permit any of the Subsidiary Loan Parties to, enter into any Hedging
Agreement, other than Hedging Agreements required by Section 5.14 and other
Hedging Agreements entered into by the Borrower in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any Subsidiary is
exposed in the conduct of its business or the management of its liabilities.
SECTION 6.06. Restricted Payments. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary Loan Party to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
except (a) the Borrower may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock, (b)
Subsidiaries may declare and pay dividends and distributions to the Borrower,
(c) after the Parent pays the ChaseTel Earnout (but in any event not prior to
January 1, 2006), the Borrower may make Restricted Payments in an aggregate
amount not exceeding the lesser of $41,000,000 and the amount of such ChaseTel
Earnout paid by the Parent (and Holdings may make Restricted Payments with the
proceeds of any such Restricted Payments received by Holdings), provided that at
the time of and after giving effect to any such Restricted Payment (i) no
Default shall have occurred and be continuing, (ii) the Borrower shall be in
compliance with Sections 6.18 and 6.19 determined on a pro forma basis as of the
last day of the most recently ended calendar quarter of the Borrower for which
financial statements are available as though such payment had been
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made on the first day of each relevant period for testing compliance with such
covenant, and (iii) the ratio of Annualized EBIDTA to Fixed Charges shall be
greater than or equal to 1.0 to 1.0 and (d) the Borrower may make Restricted
Payments at the time that any scheduled interest payment is due in respect of
any Permitted Holdings Debt, in an aggregate amount not exceeding the aggregate
amount of such interest payment; provided that (i) at the time of and after
giving effect to any such Restricted Payment, no Default shall have occurred and
be continuing, (ii) such Restricted Payments shall be applied to make such
interest payment, (iii) no such Restricted Payments shall be made prior to the
earlier of (A) June 30, 2005, (B) the date that is five years after the date of
issuance of any Permitted Holdings Debt and (C) the date on which the Borrower
shall have repaid at least 40% of the aggregate principal amount of the Loans
that were outstanding at the end of the Availability Period, and (iv) the
aggregate amount of Restricted Payments made in reliance upon this clause (d)
shall not exceed $65,000,000 during any 12-month period.
SECTION 6.07. Transactions with Affiliates. (a) Neither Holdings
nor the Borrower will, nor will they permit any Subsidiary Loan Party 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 (i) transactions that do not
involve Holdings and are at prices and on terms and conditions not less
favorable to the Borrower or such Subsidiary Loan Party than could be obtained
on an arm's-length basis from unrelated third parties, (ii) transactions between
or among the Borrower and the Subsidiary Loan Parties not involving any other
Affiliate, (iii) any Restricted Payment permitted by Section 6.06, and (iv)
transactions expressly contemplated by the Intercompany Agreements that are
conducted in accordance with the terms of the Intercompany Agreements.
(b) Neither Holdings nor the Borrower will, nor will they permit
any Subsidiary Loan Party to, create, incur, assume or permit to exist any
Indebtedness (or any other obligation or liability of the type defined as a
"Subordinated Obligation" in the Subordination Agreement) owing to or for the
benefit of the Parent or any other Affiliate of Holdings, the Borrower or any
Subsidiary Loan Party, unless (i) such Affiliate shall have become a party to
the Subordination Agreement and agreed to subordinate
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such Indebtedness (or such other obligation or liability) as provided therein
and (ii) in the case of any such Indebtedness, such Indebtedness is evidenced by
one or more promissory notes or similar instruments that are pledged pursuant to
the Pledge Agreement.
SECTION 6.08. Restrictive Agreements. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary Loan Party to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon the ability
of any Subsidiary Loan Party to pay dividends or other distributions with
respect to any of its Equity Interests or to make or repay loans or advances to
the Borrower or to Guarantee Indebtedness of the Borrower; provided that (a) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document and (b) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 6.08 (but shall
apply to any extension or renewal of, or any amendment or modification expanding
the scope of, any such restriction or condition).
SECTION 6.09. Repayment of Indebtedness. The Borrower will not,
nor will it permit any Subsidiary Loan Party to, make any Repayment in respect
of, or make any payment in violation of any subordination terms of, any
Indebtedness of the Borrower or any Subsidiary Loan Party except (a) any
Repayment of Indebtedness resulting in a prepayment of Loans pursuant to Section
2.09(d) and (b) Repayments described in any of the clauses of the proviso to
Section 2.09(d).
SECTION 6.10. Intercompany Agreements. Neither Holdings nor the
Borrower will, nor will they permit any Subsidiary Loan Party to, enter into any
agreement or arrangement after the date hereof that would constitute an
Intercompany Agreement without the prior written approval of the Required
Lenders.
SECTION 6.11. Limitation on Sale-Leaseback Transactions. The
Borrower will not, nor will it permit any Subsidiary Loan Party to, enter into
any arrangement, directly or indirectly, 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
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that it intends to use for substantially the same purpose or purposes as the
property sold or transferred.
SECTION 6.12. Equipment Site Interests and Real Estate
Subsidiaries. The Borrower will not permit any Equipment Site Interests to be
owned or acquired by any Person other than a Subsidiary that (a) is wholly owned
directly by the Borrower, (b) does not engage in any business or activity other
than the ownership of Equipment Site Interests and activities incidental
thereto, (c) does not own or acquire any assets other than Equipment Site
Interests, cash and Permitted Investments and (d) does not have or incur any
Indebtedness or other liabilities other than liabilities under the Loan
Documents, liabilities imposed by law, including tax liabilities, and other
liabilities incidental to its existence and permitted business and activities
(any such Subsidiary satisfying the foregoing requirements, a "Real Estate
Subsidiary"). The Equipment Site Interests relating to all sites in any
particular state shall be owned by a separate Real Estate Subsidiary.
SECTION 6.13. FCC Licenses and License Subsidiaries. The Borrower
will not permit any FCC License to be owned or acquired by any Person other than
a corporation that (a) is wholly owned directly by the Parent, (b) does not
engage in any business or activity other than the ownership of one or more FCC
Licenses and activities incidental thereto, (c) does not own or acquire any
assets other than one or more FCC Licenses, cash and Permitted Investments and
(d) does not have or incur any Indebtedness or other liabilities other than
liabilities under the Loan Documents, liabilities imposed by law, including tax
liabilities, other liabilities incidental to its existence and permitted
business and activities and FCC Debt or Permitted License Acquisition Debt
incurred to finance the purchase by it of its FCC Licenses (any corporation
satisfying the foregoing requirements, a "License Subsidiary"). Each FCC License
that is acquired without being financed with FCC Debt or Permitted License
Acquisition Debt shall be owned by a License Subsidiary that does not have any
liability in respect of any FCC Debt or Permitted License Acquisition Debt. Each
FCC License that is financed with FCC Debt or Permitted License Acquisition Debt
shall be owned by a separate License Subsidiary (which shall be the only Loan
Party liable for such FCC Debt or Permitted License Acquisition Debt), except
that any combination of two or more such FCC Licenses that are
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acquired contemporaneously pursuant to the same acquisition may be owned by the
same License Subsidiary if required by the terms of such FCC Debt or Permitted
License Acquisition Debt.
SECTION 6.14. Amendment of Material Documents. Neither Holdings
nor the Borrower will, nor will they permit any Subsidiary Loan Party to, amend,
modify or waive any of its rights under (a) any Intercompany Agreement, (b) its
certificate of incorporation, by-laws or other organizational documents, (c) the
ChaseTel Purchase Agreement, (d) the ChaseTel Credit Agreement or any agreement
or instrument securing, guaranteeing or evidencing any Permitted ChaseTel
Financing (other than amendments or modifications that do not adversely effect
any Permitted ChaseTel Financings) or (e) any agreement or instrument governing
or evidencing any Permitted Holdings Debt or FCC Debt.
SECTION 6.15. Capital Expenditures. The Borrower will not permit
the aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries in any calendar year to exceed the amount set forth below with
respect to such calendar year:
Year Amount
---- ------
1999 $ 74,000,000
2000 $509,000,000
2001 $380,000,000
2002 $300,000,000
2003 $216,000,000
2004 $137,000,000
2005 $120,000,000
2006 $106,000,000
2007 and thereafter $ 90,000,000
SECTION 6.16. Covered POPS. The Borrower will not permit the
total number of Covered POPS at any time during any period set forth below to be
less than the number set forth below with respect to such period:
Period Number
------ ------
January 1, 2000 to and
including March 31, 2000 275,000
April 1, 2000 to and
including June 30, 2000 1,000,000
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Period Number
------ ------
July 1, 2000 to and
including September 30, 2000 2,700,000
October 1, 2000 to and
including December 31, 2000 2,800,000
January 1, 2001 to and
including March 31, 2001 7,200,000
April 1, 2001 to and
including June 30, 2001 8,700,000
July 1, 2001 to and
including September 30, 2001 10,300,000
October 1, 2001 to and
including December 31, 2001 12,000,000
January 1, 2002 to and
including December 31, 2002 13,400,000
January 1, 2003 to and
including December 31, 2003 19,700,000
January 1, 2004 to and
including December 31, 2004 21,100,000
January 1, 2005 to and
including December 31, 2005 21,600,000
January 1, 2006 and thereafter 22,000,000
SECTION 6.17. Subscribers. The Borrower will not permit the total
number of Subscribers at any time during any period set forth below to be less
than the number set forth below opposite such period:
Period Number
------ ------
January 1, 2000 to and
including March 31, 2000 16,500
April 1, 2000 to and
including June 30, 2000 30,000
July 1, 2000 to and
including September 30, 2000 55,000
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Period Number
------ ------
October 1, 2000 to and
including December 31, 2000 100,000
January 1, 2001 to and
including March 31, 2001 193,000
April 1, 2001 to and
including June 30, 2001 283,000
July 1, 2001 to and
including September 30, 2001 405,000
October 1, 2001 to and
including December 31, 2001 538,000
January 1, 2002 to and
including December 31, 2002 725,000
January 1, 2003 to and
including December 31, 2003 1,370,000
January 1, 2004 to and
including December 31, 2004 1,950,000
January 1, 2005 to and
including December 31, 2005 2,450,000
January 1, 2006 and thereafter 2,700,000
SECTION 6.18. Total Indebtedness to Total Capitalization. The
Borrower will not permit the ratio of Total Indebtedness to Total Capitalization
at any time during any period set forth below to exceed the ratio set forth
opposite such period:
Period Ratio
------ -----
Initial Availability Date to and
including December 31, 2002 0.67 to 1.0
January 1, 2003 to and
including December 31, 2003 0.60 to 1.0
January 1, 2004 and thereafter 0.50 to 1.0
SECTION 6.19. Total Indebtedness to Annualized EBITDA. The
Borrower will not permit the ratio of Total
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Indebtedness to Annualized EBITDA as of any date during period set forth below
to exceed the ratio set forth below opposite such period:
Period Ratio
------ -----
Janaury 1, 2003 to and
including March 31, 2003 40.0 to 1.0
April 1, 2003 to and
including June 30, 2003 15.0 to 1.0
July 1, 2003 to and
including September 30, 2003 10.0 to 1.0
October 1, 2003 to and
including December 31, 2003 7.0 to 1.0
Janaury 1, 2004 and thereafter 5.0 to 1.0
SECTION 6.20. Consolidated EBITDA to Cash Interest Expense. The
Borrower will not permit the ratio of Consolidated EBITDA to Cash Interest
Expense for any period of four consecutive calendar quarters ending during any
period set forth below to be less than the ratio set forth opposite such period:
Period Ratio
------ -----
Janaury 1, 2003 to and
including March 31, 2003 0.6 to 1.0
April 1, 2003 to and
including June 30, 2003 1.25 to 1.0
July 1, 2003 to and
including September 30, 2003 1.5 to 1.0
October 1, 2003 to and
including December 31, 2003 1.75 to 1.0
January 1, 2004 and thereafter 2.0 to 1.0
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SECTION 6.21. Minimum Gross Revenue. (a) After the earlier to
occur of (i) the last day of the first full calender quarter ending after the
consummation of the ChaseTel Acquisition in accordance with Section 6.04 and
(ii) September 30, 2000, the Borrower will not permit the consolidated revenue
of the Borrower and the Subsidiary Loan Parties during any calendar quarter
ending on a date set forth below to be less than the amount set forth below
opposite such date:
Calendar Quarter Ending Amount
----------------------- ------
December 31, 1999 $ 1,330,000
March 31, 2000 $ 2,300,000
June 30, 2000 $ 4,200,000
September 30, 2000 $ 8,200,000
December 31, 2000 $ 15,200,000
March 31, 2001 $ 22,000,000
June 30, 2001 $ 32,000,000
September 30, 2001 $ 44,000,000
(b) The Borrower will not permit the consolidated revenue of the
Borrower and the Subsidiary Loan Parties during any calendar year ending on a
date set forth below to be less than the amount set forth below opposite such
date:
Calendar Year Ending Amount
-------------------- ------
December 31, 2001 $146,400,000
December 31, 2002 $242,900,000
December 31, 2003 $322,800,000
December 31, 2004 $355,200,000
December 31, 2005
and thereafter $375,000,000
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SECTION 6.22. Activities of Holdings. Holdings will not engage in
any business or activity other than the ownership of all the outstanding Equity
Interests of the Borrower and activities incidental thereto. Holdings will not
own or acquire any assets (other than shares of common stock of the Borrower,
cash and Permitted Investments) or incur any liabilities (other than liabilities
under the Loan Documents, liabilities imposed by law, including tax liabilities,
other liabilities incidental to its existence and liabilities in respect of
Permitted Holdings Debt or the ChaseTel Earnout). Holdings will not create,
incur, assume or permit to exist any Lien on any asset now owned or hereafter
acquired by it, except Liens created under the Loan Documents and Permitted
Encumbrances.
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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
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 three Business 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 respect when made or deemed made;
(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) or 5.10 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;
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(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 any Loan
Party 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;
(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 any Loan
Party 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;
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(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 in an
aggregate amount in excess of $1,000,000 shall be rendered against 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 any Loan Party
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 liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
(i) $1,000,000 in any year or (ii) $5,000,000 for all periods;
(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 the applicable Collateral in a transaction
permitted under the Loan Documents or (ii) as a result of the Collateral
Agent's failure to maintain possession of any stock certificates,
promissory notes or other instruments delivered to it under the Pledge
Agreements;
(n) a Change in Control shall occur;
(o) the loss, revocation, suspension or material impairment of
any material FCC License shall occur; or
(p) Lucent shall terminate the Purchase Agreement as a result of
any default or breach by the Borrower thereunder, or the Borrower shall
terminate the Purchase Agreement other than by reason of a default or
breach by Lucent thereunder;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of
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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 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 Agents
Each of the Lenders 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.
Any Person serving as 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
Person and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
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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 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 any of the Loan Parties that is communicated to or
obtained by the Person 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 it 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
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Person. The Administrative Agent also may rely upon any statement made to it
orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The 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 the 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 and the Borrower. Upon any such
resignation, the Required Lenders shall have the right 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, 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 hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its
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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.
Each Lender acknowledges and agrees to the terms of the
Collateral Agency Agreement and to the appointment of the Collateral Agent to
act as collateral agent under the Collateral Agency Agreement and the other
Security Documents.
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 Holdings or the Borrower, to it at 00000 Xxxxxxx
Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000, Attention of President
(Telecopy No. (000) 000-0000);
(b) if to the Collateral Agent, to it as provided in the
Collateral Agency Agreement;
(c) if to the Administrative Agent, to it at 000 Xxxx Xxxxxx
Xxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention of Assistant Treasurer-Project
Finance (Telecopy No. (000) 000-0000);
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(d) if to Lucent, to it at 000 Xxxx Xxxxxx Xxxx, Xxxxxx, Xxx
Xxxxxx 00000, Attention of Assistant Treasurer-Project Finance (Telecopy
No. (000) 000-0000); 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
either 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 Agents 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 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 shall not be construed as a waiver of any
Default, regardless of whether an Agent 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 Holdings, 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 applicable 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
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(i) increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or reduce the rate of
interest on such Loan, 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 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), (c) or (d)
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 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, (vi) release
all or any substantial part of the Collateral from the Lien of any Security
Document (except as expressly provided in such Security Document), without the
written consent of each Lender, (vii) release Holdings or 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 or (viii) change any provisions of any Security Document in a manner
that adversely affects the pro rata security of the Loans in relation to any
other Eligible Secured Debt, without the written consent of each Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of either Agent without the prior written consent of such
Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by Lucent
and each Agent, including the reasonable fees, charges and disbursements of
counsel for Lucent or the Agents, in connection with the preparation and
administration of the Loan Documents or any amendments, modifications or waivers
thereof (whether or not the transactions contemplated hereby are consummated)
and (ii) all reasonable out-of-pocket expenses incurred by either Agent or any
Lender, including the reasonable fees, charges and disbursements of any counsel
for either Agent 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 connection
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with the Loans made hereunder, including all such costs and expenses incurred
during any workout, restructuring or negotiations in respect of such Loans.
(b) The Borrower shall indemnify each Agent 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 the use of the proceeds therefrom, (iii) any actual or alleged
presence or release of Hazardous Materials on or from any Mortgaged Property or
any other property at any time 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 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 under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity 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 in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined based upon its share of the sum of
the total outstanding Loans and Commitments at the time.
000
000
(x) To the extent permitted by applicable law, neither Holdings
nor the Borrower shall assert, and each of them 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 not later
than 30 days 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, 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 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Agents 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 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 Lucent, a Lender or an Affiliate of
Lucent or a Lender, the Administrative Agent must give its prior written consent
to such assignment (which consent shall not be unreasonably withheld or
delayed), (ii) in the case of an assignment to a competitor of the Borrower or
any of its Subsidiaries (or any Affiliate of any such competitor) or in the case
of an assignment of a Commitment (other than to an Eligible Assignee), the
Borrower must give its prior written consent to such assignment (which consent,
except in the case of an assignment to any such competitor or Affiliate of a
competitor, shall not be unreasonably withheld or delayed), (iii) except in the
case of an assignment to Lucent, a
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Lender or an Affiliate of Lucent or a Lender or an assignment of the entire
remaining amount of the assigning Lender's Commitment and Loans, the amount of
the Commitment and 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 the Borrower otherwise consents, (iv) 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
(iv) shall not be construed to prohibit the assignment of a proportionate part
of all of the assigning Lender's rights and obligations in respect of (A) Loans
separately from (or without assigning) Commitments, (B) Commitments separately
from (or without assigning) Loans or (C) Commitments that are not Contingent
Commitments separately from (or without assigning) Contingent Commitments, (v)
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 (vi) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire; 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 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.
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(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices 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 Commitments of, and principal amount of
the Loans 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 Agents 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 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 or the
Administrative Agent, 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 Commitments and the
Loans owing to it); provided that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Agents 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
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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(d) as
though it were a Lender.
(f) 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 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,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that either Agent 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 and so long
as the Commitments have not expired or terminated. The provisions
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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 Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to the
Borrower's agreement to cooperate with Lucent with respect to marketing, selling
or syndicating Loans and Commitments or with respect to fees payable to Lucent
or either 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 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 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
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
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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.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
Process. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each of Holdings and the Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any 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 either Agent or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against Holdings or the Borrower or its properties in the courts of any
jurisdiction.
(c) Each of Holdings and 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
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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, 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, 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 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 Agents 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
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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 either
Agent or any Lender on a nonconfidential basis from a source other than Holdings
or the Borrower. For the purposes of this Section, "Information" means all
information received from Holdings or the Borrower relating to Holdings or the
Borrower or its business, other than any such information that is publicly
available or available to either Agent or any Lender on a nonconfidential basis
prior to disclosure by Holdings or the Borrower. 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.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon
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at the Federal Funds Effective Rate to the date of repayment, shall have been
received by such Lender.
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.
CRICKET COMMUNICATIONS INC.,
by
-----------------------------------------
Name:
Title:
CRICKET WIRELESS COMMUNICATIONS INC.,
by
-----------------------------------------
Name:
Title:
LUCENT TECHNOLOGIES INC., individually and as
Administrative Agent,
by
-----------------------------------------
Name:
Title:
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SCHEDULE 2.01
COMMITMENTS
Commitment
Lender Amount
------ ----------
Lucent Technologies Inc. $641,000,000
