EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of
February 3, 1998
among
TRITON PCS, INC.
TRITON PCS HOLDINGS, INC.
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms......................................................... 1
SECTION 1.02. Classification of Loans and Borrowings................................ 31
SECTION 1.03. Terms Generally ...................................................... 31
SECTION 1.04. Accounting Terms; GAAP................................................ 31
ARTICLE II
The Credits
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SECTION 2.01. Commitments........................................................... 32
SECTION 2.02. Loans and Borrowings.................................................. 32
SECTION 2.03. Requests for Borrowings............................................... 33
SECTION 2.04. Funding of Borrowings................................................. 34
SECTION 2.05. Interest Elections.................................................... 35
SECTION 2.06. Termination and Optional Reduction of Commitments..................... 37
SECTION 2.07. Repayment of Loans; Evidence of Debt.................................. 37
SECTION 2.08. Automatic Revolving Commitment Reductions; Amortization
of Term Loans....................................................... 38
SECTION 2.09. Prepayment of Loans................................................... 40
SECTION 2.10. Fees.................................................................. 42
SECTION 2.11. Interest.............................................................. 43
SECTION 2.12. Alternate Rate of Interest............................................ 44
SECTION 2.13. Increased Costs....................................................... 45
SECTION 2.14. Break Funding Payments................................................ 46
SECTION 2.15. Taxes................................................................. 47
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Setoffs............ 48
SECTION 2.17. Mitigation Obligations; Replacement of Lenders........................ 51
2
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers.................................................. 52
SECTION 3.02. Authorization; Enforceability......................................... 52
SECTION 3.03. Governmental Approvals; No Conflicts.................................. 52
SECTION 3.04. Financial Condition; No Material Adverse Change....................... 53
SECTION 3.05. Properties............................................................ 53
SECTION 3.06. Litigation and Environmental Matters.................................. 54
SECTION 3.07. Compliance with Laws and Agreements................................... 55
SECTION 3.08. Investment and Holding Company Status................................. 55
SECTION 3.09. Taxes................................................................. 55
SECTION 3.10. ERISA................................................................. 55
SECTION 3.11. Disclosure............................................................ 56
SECTION 3.12. Subsidiaries; Parents................................................. 56
SECTION 3.13. Absence of Non-Permitted Obligations.................................. 57
SECTION 3.14. Licenses.............................................................. 57
SECTION 3.15. No Burdensome Restrictions............................................ 57
SECTION 3.16. Use of Proceeds....................................................... 58
SECTION 3.17. Flood Insurance....................................................... 58
SECTION 3.18. Insurance............................................................. 58
SECTION 3.19. Labor Matters......................................................... 58
SECTION 3.20. Solvency.............................................................. 58
SECTION 3.21. FCC Compliance........................................................ 59
SECTION 3.22. Security Documents.................................................... 59
SECTION 3.23. Copyrights, Trademarks, etc........................................... 61
SECTION 3.24. Federal Regulations................................................... 61
SECTION 3.25. Assets and Business of Holdings....................................... 61
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date........................................................ 61
SECTION 4.02. Each Credit Event..................................................... 68
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other Information........................... 69
SECTION 5.02. Notices of Material Events........................................... 72
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SECTION 5.03. Information Regarding Collateral...................................... 72
SECTION 5.04. Existence; Conduct of Business........................................ 73
SECTION 5.05. Payment of Obligations................................................ 73
SECTION 5.06. Maintenance of Properties............................................. 74
SECTION 5.07. Insurance............................................................. 74
SECTION 5.08. Casualty and Condemnation............................................. 73
SECTION 5.09. Books and Records; Inspection and Audit Rights........................ 75
SECTION 5.10. Compliance with Laws.................................................. 75
SECTION 5.11. Use of Proceeds....................................................... 75
SECTION 5.12. Additional Subsidiaries............................................... 75
SECTION 5.13 Further Assurances.................................................... 76
SECTION 5.14. Interest Rate Protection.............................................. 77
SECTION 5.15. License Drop Down..................................................... 77
SECTION 5.16. Business of Holdings; Immediate Contributions to the Borrower......... 78
SECTION 5.17. Execution of Agreement................................................ 78
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness; Certain Equity Securities............................... 78
SECTION 6.02. Liens................................................................. 80
SECTION 6.03. Sale and Lease-Back Transactions...................................... 82
SECTION 6.04. Fundamental Changes................................................... 82
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions............. 83
SECTION 6.06 Asset Sales........................................................... 84
SECTION 6.07. Hedging Agreements.................................................... 84
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness................. 84
SECTION 6.09. Transactions with Affiliates.......................................... 85
SECTION 6.10. Restrictive Agreements................................................ 86
SECTION 6.11. Amendment of Material Documents....................................... 86
SECTION 6.12. Financial Covenants................................................... 87
SECTION 6.13. Liabilities of Special Purpose Subsidiaries........................... 91
ARTICLE VII
Events of Default...................................... 92
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ARTICLE VIII
The Administrative Agent................................... 96
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ARTICLE IX
Miscellaneous
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SECTION 9.01. Notices............................................................... 99
SECTION 9.02. Waivers; Amendments................................................... 100
SECTION 9.03. Expenses; Indemnity; Damage Waiver.................................... 101
SECTION 9.04. Successors and Assigns................................................ 103
SECTION 9.05. Survival.............................................................. 106
SECTION 9.06. Counterparts; Integration; Effectiveness.............................. 106
SECTION 9.07. Severability.......................................................... 107
SECTION 9.08. Right of Setoff....................................................... 107
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process............ 107
SECTION 9.10. WAIVER OF JURY TRIAL.................................................. 108
SECTION 9.11. Headings.............................................................. 109
SECTION 9.12. Confidentiality....................................................... 110
SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Litigation and Environmental Matters
Schedule 3.14 -- Network Area
Schedule 3.22 -- Mortgaged Property
Schedule 6.02 -- Existing Liens
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of Local Counsel
Exhibit B-3 -- Form of Opinion of FCC Counsel
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Pledge Agreement
Exhibit E -- Form of Security Agreement
Exhibit F -- Form of Indemnity, Subrogation and
Contribution Agreement
CREDIT AGREEMENT dated as of February 3, 1998 among
TRITON PCS, INC., a Delaware corporation (the "Borrower"),
TRITON PCS HOLDINGS, INC. ("Holdings"), the LENDERS (as
defined in Article I) party hereto, and THE CHASE MANHATTAN
BANK, as Administrative Agent.
WHEREAS the Borrower intends to construct and operate a mobile
wireless telecommunications network utilizing TDMA IS-136 technology or its
successor serving the MTA's and BTA's listed on Schedule 3.14 (the
"Network");
WHEREAS the Borrower has requested the Lenders to make available
credit facilities to finance capital expenditures related to the
construction of the Network, the acquisition of Related Businesses, working
capital needs of the Borrower and subscriber acquisition costs; and
WHEREAS the Lenders are willing to make the requested credit
facilities available on the terms and subject to the conditions set forth
in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Adjusted EBITDA" means for any fiscal period, the sum of (a)
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Consolidated EBITDA for such period plus (b) the aggregate amount deducted
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in determining Consolidated Net Income for such period in respect of sales,
marketing and advertising expenses and consumer-related equipment subsidy
expenses.
2
"Adjusted LIBO Rate" means, with respect to any Eurodollar
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Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate
for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
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capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
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Questionnaire in the form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
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Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified and with respect to any Lender that is a fund that invests in
commercial loans, any other fund that invests in commercial loans and is
managed by the same investment advisor as such Lender or by an Affiliate of
such investment advisor.
"Aggregate Service Revenue" means for any period, the sum of
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subscriber revenues, toll revenues and roaming revenues for such period.
"Alternate Base Rate" means, for any day, a rate per annum equal
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to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any
change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the
effective date of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"Annualized Adjusted EBITDA" means for the period ending on the
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last day of any fiscal quarter, the product of (a) Adjusted EBITDA for the
two consecutive fiscal quarters ending on such last day, multiplied by (b)
two.
"Annualized EBITDA" means for the period ending on the last day
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of any fiscal quarter, the product of (a) Consolidated EBITDA for the two
consecutive fiscal quarters ending on such last day, multiplied by (b) two.
"Applicable Rate" means, for any day (a) with respect to any
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Tranche B Term Loan, the applicable Tranche B Rate, and (b) with respect to
any ABR Loan or Eurodollar Loan that is a Revolving Loan or a Tranche A
Term Loan, or with respect to the commitment fees payable hereunder, as
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the case may be, the applicable rate per annum set forth below under the
caption "ABR Spread", "Eurodollar Spread" or "Commitment Fee Rate", as the
case may be, based upon the Leverage Ratio as of the most recent
determination date; provided that, unless Consolidated EBITDA for the most
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recent fiscal quarter for which financial statements have been delivered
pursuant to Section 5.01 is positive, the "Applicable Rate" for purposes of
clause (b) shall be the applicable rate per annum set forth below in
Category 1:
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ABR EURODOLLAR COMMITMENT FEE
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Leverage Ratio: SPREAD SPREAD RATE
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Category 1
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Not Applicable 1.25% 2.25% 0.50%
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Category 2
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Greater than or equal to 10.0 to 1 1.00% 2.00% 0.50%
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Category 3
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Greater than or equal to 9.0 to 1 but less than 10.0 to 1 0.875% 1.875% 0.375%
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Category 4
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Greater than or equal to 8.0 to 1 but less than 9.0 to 1 0.75% 1.75% 0.375%
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Category 5
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Greater than or equal to 6.0 to 1 but less than 8.0 to 1 0.50% 1.50% 0.375%
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Category 6
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Greater than or equal to 5.0 to 1 but less than 6.0 to 1 0.25% 1.25% 0.375%
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Category 7
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Less than 5.0 TO 1 -- 1.00% 0.375%
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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
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to be in Category 1 (A) at any time that an Event of Default has occurred
and is continuing or (B) if the Borrower fails to deliver the consolidated
financial statements required to be delivered by it pursuant to Section
5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are
delivered.
Notwithstanding the foregoing if, prior to the Effective Date,
the Indebtedness to be created under the Loan Documents receives a rating
from Xxxxx'x of less than
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"B", the Applicable Rate will be increased by 25 basis points.
"Assignment and Acceptance" means an assignment and acceptance
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entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved
by the Administrative Agent.
"AW" means AT&T Wireless PCS, Inc.
--
"AW Licenses" has the meaning set forth in the definition of
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Initial Equity Contributions.
"Board" means the Board of Governors of the Federal Reserve
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System of the United States of America.
"Borrower" means Triton PCS, Inc., a Delaware corporation.
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"Borrowing" means Loans of the same Class and Type, made,
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converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
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Borrowing in accordance with Section 2.03.
"BTA" means a Basic Trading Area, as defined in 47
---
C.F.R.(S)24.202.
"Business Day" means any day that is not a Saturday, Sunday or
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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
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with a Eurodollar Loan, the term "Business Day" shall also exclude any day
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on which banks are not open for dealings in dollar deposits in the London
interbank market.
"Capital Expenditures" means, for any period, (a) the additions
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to property, plant and equipment and other capital expenditures of the
Borrower and its consolidated Subsidiaries that are (or would be) set forth
in a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations incurred
by the Borrower and its consolidated Subsidiaries during such period (other
than Capital Lease Obligations permitted by Section 6.01(a)(vi)).
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"Capital Lease Obligations" of any Person means the obligations
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of such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests,
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participations or other equivalents (however designated) of capital stock
of a corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options to
purchase or subscribe for any of the foregoing, or any warrants, rights or
options to purchase or subscribe for any such warrants, rights or options.
"Cash Interest Expense" means, for any period, (a) Consolidated
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Interest Expense for such period, minus (b) the aggregate amount of pay-in-
kind or accreted Consolidated Interest Expense for such period not
involving any payment in cash.
"Change in Control" means (a) the sale or other disposition by AW
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of any shares of the Series C Preferred Stock, Series D Preferred Stock or
Common Stock of Holdings or of any Common Stock of the Borrower prior to
the date which is three years from the Effective Date, (b) the acquisition
of ownership, directly or indirectly, beneficially or of record, by any
Person or group (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof) other than Holdings or persons owning capital
stock of Holdings on the Closing Date, of shares representing more than 20%
of the aggregate ordinary voting power represented by the issued and
outstanding capital stock of either the Borrower or Holdings; (c)
occupation of a majority of the seats (other than vacant seats) on the
board of directors of Holdings or the Borrower by Persons who were not (i)
nominated by the board of directors of Holdings (in the case of Holdings'
board) or the Borrower (in the case of the Borrowers' board) (ii) appointed
by directors so nominated or (iii) in the case of Holdings, appointed by
shareholders of Holdings who are shareholders of Holdings on the Effective
Date; or (d) the acquisition of direct or indirect Control of the Borrower
or Holdings by any Person or group other than Holdings or persons owning
capital stock of Holdings on the date hereof; provided, however, that
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neither (A) the sale by
6
AW of all or any of its equity interest in Holdings subsequent to the date
which is three years from the Effective Date nor (B) the public sale by
Holdings or the Borrower of newly issued Common Stock in an initial public
offering, shall constitute a Change of Control.
"Change in Law" means (a) the adoption of any law, rule or
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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 2.15(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.
"Class", when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans comprising such Borrowing, are Revolving
Loans, Tranche A Term Loans or Tranche B Term Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a
Revolving Commitment, Tranche A Commitment or Tranche B Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from
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time to time.
"Collateral" means any and all "Collateral", as defined in any
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applicable Security Document and shall also include the Mortgaged
Properties.
"Committed Equity" means irrevocable binding commitments to
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purchase stock of the Borrower pursuant to the Securities Purchase
Agreement.
"Commitment" means a Revolving Commitment, Tranche A Commitment
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or Tranche B Commitment, or any combination thereof (as the context
requires).
"Common Stock" means the Common Stock, par value $.01 per share,
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of the Borrower.
"Communications Act" means the Communications Act of 1934, and
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any similar or successor federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same
may be in effect from time to time.
"Consents to Assignment" has the meaning set forth in subsection
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4.01(r).
7
"Consolidated EBITDA" means, for any period, Consolidated Net
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Income plus, to the extent deducted in computing such Consolidated Net
Income, the sum of (a) income or franchise tax expense for such period, (b)
Consolidated Interest Expense, (c) depreciation and amortization expense
and (d) any non-cash charges or non-cash losses, minus, to the extent added
in computing such Consolidated Net Income, (i) any non-cash gains or other
non-cash items and (ii) any income tax credits, all as determined on a
consolidated basis with respect to the Borrower and the Subsidiaries in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
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interest expense of Holdings, the Borrower and the Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP,
including but not limited to the portion of any payments or accruals with
respect to Capital Lease Obligations that are allocable to interest
expense.
"Consolidated Net Income" means, for any period, net income or
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loss of the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
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excluded (a) the income of any person in which any other person (other than
the Borrower or any of the Subsidiaries or any director holding qualifying
shares in compliance with applicable law) has a joint interest, except to
the extent of the amount of dividends or other distributions (i) that the
Borrower or any of the Subsidiaries has the power to cause such person to
make to the Borrower or any Subsidiary during such period and such dividend
or other distribution is not prohibited by the terms of any agreement
binding upon such person or otherwise or (ii) that, to the extent not
already included in Consolidated Net Income for any period pursuant to
clause (i) above, were actually paid to the Borrower or any of the
Subsidiaries by such person during such period, (b) any after tax gains or
losses attributable to sales of assets out of the ordinary course of
business and (c) (to the extent not included in clauses (a) or (b) above)
any extraordinary gains or extraordinary losses.
"Contractual Obligations" means as to any Person, any provision
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of any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any of
its property is bound.
"Contributed Equity" means at any time or for any period, the
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aggregate amount which shall have been received by the Borrower prior to
such time or during such period as
8
consideration for the issuance of stock of the Borrower (valued, in the
case of the AW Licenses, at $109,850,200, the agreed value of the AW
Licenses in the Securities Purchase Agreement).
"Control" means the possession, directly or indirectly, of the
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power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract
or otherwise. "Controlling" and "Controlled" have meanings correlative
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thereto.
"Covered Pops" means the aggregate number of Pops within each
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geographic area for which facilities owned by the Borrower or its
Subsidiaries that provide service to such geographic area have achieved
substantial completion.
"Debt Service" means for any period, the sum of (a) Cash Interest
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Expense for such period plus (b) scheduled principal amortization of Total
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Debt for such period.
"Default" means any event or condition which constitutes an Event
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of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and
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the environmental matters disclosed in Schedule 3.06.
"Disqualifying Transaction" has the meaning set forth in the
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Stockholders Agreement.
"dollars" or "$" refers to lawful money of the United States of
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America.
"Effective Date" means the date on which the conditions specified
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in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes,
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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
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otherwise (including any liability for
9
damages, costs of environmental remediation, fines, penalties or
indemnities), of the Borrower or any Subsidiary directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b)
the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials
into the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with respect
to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
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1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
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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
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Section 4043 of ERISA or the regulations issued thereunder with respect to
a Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability under Title IV
of ERISA with respect to the termination of any Plan; (e) the receipt by
the Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or
the receipt by any Multiemployer Plan from the Borrower or any ERISA
Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be,
insolvent or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
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refers to whether such Loan, or the Loans
10
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
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Article VII.
"Excess Cash Flow" means, for any period, the sum of (without
----------------
duplication):
(a) Consolidated Net Income for such period, adjusted to exclude
any gains or losses attributable to Prepayment Events; plus
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(b) depreciation, amortization and other non-cash charges or
losses deducted in determining such consolidated net income (or loss) for
such period; plus
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(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such period plus (ii) the amount, if any, by which
the consolidated deferred revenues of the Borrower and its consolidated
Subsidiaries increased during such period plus (iii) the aggregate
principal amount of Capital Lease Obligations and other Indebtedness
incurred during such period to finance Capital Expenditures, to the extent
that mandatory principal payments in respect of such Indebtedness would not
be excluded from clause (f) below when made; minus
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(d) the sum of (i) any non-cash gains included in determining
such Consolidated Net Income (or loss) for such period plus (ii) the
amount, if any, by which Net Working Capital increased during such period
plus (iii) the amount, if any, by which the consolidated deferred revenues
of the Borrower and its consolidated Subsidiaries decreased during such
period; minus
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(e) cash Capital Expenditures for such period; minus
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(f) the aggregate principal amount of Indebtedness repaid or
prepaid by the Borrower and its consolidated Subsidiaries during such
period, excluding (i) Indebtedness in respect of Revolving Loans, (ii) Term
Loans prepaid pursuant to Section 2.09(b) or (c), (iii) repayments or
prepayments of Indebtedness financed by incurring other Indebtedness, to
the extent that mandatory principal payments in respect of such other
Indebtedness would not be excluded from this clause (f) when made and (iv)
Indebtedness referred to
11
in clauses (ii), (vii), (viii), (ix) and (x) of Section 6.01(a).
"Excluded Assets" means at any time, the collective reference to
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all assets of the Borrower or any Subsidiary then subject to a Lien
permitted by sub-Section 6.02(iii)-(vi).
"Excluded Real Property Assets" means Real Property Assets which
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constitute Excluded Assets.
"Excluded Real Property-Related Equipment" means Real Property-
----------------------------------------
Related Equipment which constitutes Excluded Assets.
"Excluded Taxes" means, with respect to the Issuing Bank, the
--------------
Administrative Agent, or any Lender (a) income or franchise Taxes imposed
on (or measured by) its net income by the United States of America, or by
the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in
which its applicable lending office is located or any Governmental
Authority of or in any of the foregoing (including, without limitation,
minimum Taxes and Taxes computed under alternative methods, the principal
one of which is based on or measured by net income), (b) any branch profits
Taxes imposed by the United States of America or any similar Tax imposed by
any other jurisdiction in which the Borrower is located or the Issuing
Bank, the Administrative Agent or Lender as applicable, or organized or any
Governmental Authority of or in any of the foregoing, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding Tax that is in effect and
would apply to a payment to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending
office), except to the extent that such Foreign Lender (or its assignor, if
any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect
to such withholding Tax pursuant to Section 2.15(a), (d) any Taxes to the
extent imposed by reason of the Issuing Bank, Lender or Administrative
Agent, as applicable, engaging in activities in the jurisdiction imposing
the Tax that are unrelated to the transactions contemplated hereby, and (e)
any Tax that would not have been imposed but for the failure of a Lender or
the Administrative Agent, as applicable, to comply with the certification
requirements described in Section 2.15(e).
12
"FCC" means the Federal Communications Commission, or any other
---
similar or successor agency of the Federal government administering the
Communications Act.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
quotations for such day for such transactions received by the
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"Fixed Charges" means (a) Debt Service, (b) Capital Expenditures,
-------------
(c) Taxes and (d) dividends and distributions paid pursuant to Section
6.08(a)(iii).
"Foreign Lender" means any Lender that is organized under the
--------------
laws of a jurisdiction other than that in which the Borrower is located.
For purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized
------------------
under the laws of a jurisdiction other than the United States of America or
any State thereof or the District of Columbia.
"Funded Debt" means, as of the date of determination, all
-----------
Indebtedness for borrowed money of Holdings, the Borrower and its
Subsidiaries which by its terms matures more than one year after the date
of calculation, and any such Indebtedness maturing within one year from
such date which is renewable or extendable at the option of the obligor to
a date more than one year from such date including, in any event, the
Revolving Loans.
"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
13
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
---------------
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition
or liquidity of the primary obligor so as to enable the primary obligor to
pay such Indebtedness or other obligation or (d) as an account party in
respect of any letter of credit or letter of guaranty issued to support
such Indebtedness or obligation; provided, that the term Guarantee shall
--------
not include endorsements for collection or deposit in the ordinary course
of business.
"Guarantee Agreement" means the Guarantee Agreement with respect
-------------------
to the Obligations substantially in the form of Exhibit C, made by the
Subsidiary Loan Parties in favor of the Administrative Agent for the
benefit of the Secured Parties.
"Hazardous Materials" means all explosive or radioactive
-------------------
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging
arrangement.
"Holdings" means Triton PCS Holdings, Inc., a Delaware
--------
corporation.
14
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid, (d) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all
obligations of such Person in respect of the deferred purchase price of
property or services (excluding current accounts payable incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by
such Person, whether or not the Indebtedness secured thereby has been
assumed, (g) all Guarantees by such Person of Indebtedness of others, (h)
all Capital Lease Obligations of such Person, (i) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnity, Subrogation and Contribution Agreement" means the
-------------------------------------------------
Indemnity, Subrogation and Contribution Agreement, substantially in the
form of Exhibit F, among the Borrower and the Subsidiaries.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Information Memorandum" means the Confidential Information
----------------------
Memorandum dated November 1997 relating to the Borrower and the
Transactions.
"Initial Equity Contributions" means (i) AW's contribution to the
----------------------------
Borrower of 20 MHz of A or B Block PCS licenses covering the markets and
Pops set forth in Schedule 3.14 hereto (the "AW Licenses") in exchange for
732,371 shares of Series A Preferred Stock and 366,131 shares of Series D
Preferred Stock and (ii) purchases of 1,400,000 shares of Series C
Preferred Stock of Holdings by other investors for cash consideration and
irrevocable
15
commitments of not less than $140,000,000, the purchase price for which
will be paid directly to the Borrower.
"Interest Election Request" means a request by the Borrower to
-------------------------
convert or continue a Revolving Borrowing or Term Borrowing in accordance
with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan,
---------------------
the last day of each March, June, September and December and (b) with
respect to any Eurodollar 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 Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period
that occurs at intervals of three months' duration.
"Interest Period" means with respect to any Eurodollar Borrowing,
---------------
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three
or six months (or, with the consent of each Lender, nine or twelve months)
thereafter, as the Borrower may elect; provided, that (i) if any Interest
--------
Period would end on a day other than a Business Day, such Interest Period
shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and
(ii) any Interest Period that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the
last Business Day of the last calendar month of such Interest Period. For
purposes hereof, the date of a Borrowing initially shall be the date on
which such Borrowing is made and thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.
"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 for any fiscal period, the ratio of (a)
--------------
Total Debt on the last day of such fiscal period to (b) Annualized EBITDA
for the period ending on the last day of such fiscal period.
16
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
---------
any Interest Period, the rate appearing on Page 3750 of Dow Xxxxx Market
(or on any successor or substitute page of such service, or any successor
to or substitute for such service, providing rate quotations comparable to
those currently provided on such page of such service, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "LIBO
----
Rate" with respect to such Eurodollar Borrowing for such Interest Period
----
shall be the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London
office of the Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"License" means any broadband Personal Communications Services
-------
license issued by the FCC in connection with the operation of a System.
"License Subsidiary" means Triton PCS License Company, L.L.C.
------------------
and/or any other Wholly Owned Subsidiary of the Borrower designated as a
License Subsidiary by notice to the Administrative Agent; provided,
--------
however, that (i) such Subsidiary has no obligations or liabilities other
-------
than as permitted by Section 3.13, (ii) the stock of such Subsidiary is
pledged to the Collateral Agent for the benefit of the Lenders in
accordance with the terms of the Pledge Agreement and (iii) the Borrower
and such Subsidiary have entered into a Special Purpose Subsidiary Funding
Agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed
----
of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic
effect as any of the foregoing) relating to such asset and (c) in the case
of securities, any purchase option, call or similar right of a third party
with respect to such securities.
"Loan Documents" means this Agreement, the Guarantee Agreement,
--------------
the Pledge Agreement, the Security
17
Agreement, the Indemnity, Subrogation and Contribution Agreement, the
Special Purpose Subsidiary Funding Agreements, the Consents to Assignment
and the other Security Documents.
"Loan Parties" means Holdings, the Borrower and the Subsidiary
------------
Loan Parties.
"Loans" means the loans made by the Lenders to the Borrower
-----
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on (a)
-----------------------
the business, assets, results of operations, prospects or financial
condition of the Borrower and the Subsidiaries taken as a whole or of
Holdings, (b) the ability of any Loan Party to perform any of its
obligations under any Loan Document or (c) the validity or enforceability
of any Loan Document or the rights of or remedies available to the
Administrative Agent or the Lenders under any Loan Document; provided that,
--------
on or after the date which is five years from the Effective Date, neither
(x) the nonrenewal of the Network License Agreement by AW nor (y) the
termination of the Network License Agreement by AW in accordance with its
terms as a result of a Disqualifying Transaction shall be a Material
Adverse Effect.
"Material Indebtedness" means Indebtedness (other than the
---------------------
Loans), or obligations in respect of one or more Hedging Agreements, of any
one or more of Holdings, the Borrower and the Subsidiaries in an aggregate
principal amount exceeding $5,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of
Holdings, the Borrower or any Subsidiary in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Mortgage" means a mortgage, deed of trust, assignment of leases
--------
and rents, leasehold mortgage or other security document granting a Lien on
any Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Administrative Agent.
"Mortgaged Property" means, initially, each interest in real
------------------
property and any improvements thereto owned
18
by a Loan Party and identified on Schedule 3.22, and includes each interest
in real property and any improvements thereto with respect to which a
Mortgage is granted pursuant to Section 5.12 or 5.13.
"MTA" means a Major Trading Area as defined in 47 C.F.R. (S)
---
24.202.
"Multiemployer Plan" means a multiemployer plan as defined in
------------------
Section 4001(a)(3) of ERISA.
"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 reasonable fees and out-of-pocket expenses
paid by the Borrower and the Subsidiaries to third parties (other than
Affiliates) in connection with such event, (ii) in the case of a sale or
other disposition of an asset (including pursuant to a casualty or
condemnation), the amount of all payments required to be made by the
Borrower and the Subsidiaries as a result of such event to repay
Indebtedness (other than Loans) secured by such asset or otherwise subject
to mandatory prepayment as a result of such event, and (iii) the amount of
all taxes paid (or reasonably estimated to be payable) by the Borrower and
the Subsidiaries, and the amount of any reserves established by the
Borrower and the Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event
occurred or the next succeeding year and that are directly attributable to
such event (as determined reasonably and in good faith by the chief
financial officer of the Borrower).
"Network" has the meaning set forth in the first recital.
-------
"Network License Agreement" means the Network Membership License
-------------------------
Agreement, dated the date hereof, between AT&T Corp. and the Borrower, as
the same may be amended, supplemented or otherwise modified from time to
time in accordance with Section 6.11 hereof.
"Net Working Capital" means, at any date, (a) the consolidated
-------------------
current assets of the Borrower and its consolidated Subsidiaries as of such
date (excluding cash and Permitted Investments) minus (b) the consolidated
current liabilities of the Borrower and its consolidated
19
Subsidiaries as of such date (excluding current liabilities in respect of
Indebtedness). Net Working Capital at any date may be a positive or
negative number. Net Working Capital increases when it becomes more
positive or less negative and decreases when it becomes less positive or
more negative.
"Obligations" has the meaning assigned to such term in the
-----------
Guarantee Agreement and the Security Documents.
"Other Taxes" means any and all present or future stamp or
-----------
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
----
and defined in ERISA and any successor entity performing similar functions.
"PCS Documents" means the Securities Purchase Agreement and each
-------------
of the documents that is an exhibit thereto (including the Network License
Agreement).
"Perfection Certificate" means a certificate in the form of Annex
----------------------
2 to the Security Agreement or any other form approved by the
Administrative Agent.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', 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 60 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety
20
and appeal bonds, performance bonds and other obligations of a like nature,
in each case in the ordinary course of business;
(e) liens of attachments, judgments or awards in respect of
judgments that do not constitute an Event of Default under clause (k) of
Article VII and in respect of which adequate reserves have been established
in accordance with GAAP;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) restrictions on the transfer of assets contained in any
License or imposed by the Communications Act or comparable state
legislation enacted after the date hereof;
(h) leases or subleases granted to others not interfering in any
material respect with the business of the Borrower and its Subsidiaries
taken as a whole and any interest or title of a lessor under any lease not
prohibited by this Agreement;
(i) ground leases in respect of real property on which facilities
owned or leased by the Borrower or its Subsidiaries are located; and
(j) the filing of financing statements regarding leases not
prohibited by this Agreement.
provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof
21
and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances
and time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which
the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined
in Section 3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially
----------------
in the form of Exhibit D, between the Borrower, the Subsidiary Loan Parties
and the Administrative Agent for the benefit of the Secured Parties.
"Pops" means, as of any date, with respect to any BTA or MTA, the
----
population of such BTA or MTA as such number is published in the then most
recently issued Xxxxxxxx Marketing Service Population Guide.
"Prepayment Event" means:
----------------
(a) any sale, transfer or other disposition (including pursuant
to a sale and leaseback transaction) of any property or asset of the
Borrower or any Subsidiary, other than (i) dispositions described in
clauses (a) and (b) of Section 6.06 and (ii) other dispositions resulting
in aggregate Net
22
Proceeds not exceeding $1,000,000 during any fiscal year of the
Borrower; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of,
any property or asset of the Borrower or any Subsidiary, provided
that, if no Default exists or would result therefrom, such event shall
constitute a Prepayment Event only to the extent that the Net Proceeds
therefrom have not been applied to repair, restore or replace such
property or asset within 270 days after such event; or
(c) the issuance by Holdings, the Borrower or any Subsidiary of
any equity securities, or the receipt by Holdings, the Borrower or any
Subsidiary of any capital contribution, other than, in the case of
Borrower or any Subsidiary, any such issuance of equity securities to,
or receipt of any such capital contribution from the Borrower or a
Subsidiary; provided that no such issuance or receipt shall constitute
--------
a Prepayment Event if (i) such equity is part of the initial
$140,000,000 contribution and commitment of capital to Holdings
pursuant to the Securities Purchase Agreement or the immediate
contribution by Holdings of such capital to the Borrower or (ii),
after giving effect to such issuance or receipt (x) Senior Leverage
would be less than 5:1 and (y) the Borrower would be in Pro Forma
Compliance; or
(d) the incurrence by Holdings, the Borrower or any Subsidiary of
any Indebtedness, other than Indebtedness permitted by Section 6.01;
provided that (i) no such issuance or receipt shall constitute a
--------
Prepayment Event if, after giving effect to such issuance or receipt
(x) (I) Senior Leverage would be less than 5:1 and (II) the Borrower
would be in Pro Forma Compliance or (y) the Borrower shall have
incurred in the aggregate less than $150,000,000 of Indebtedness and
(ii) the foregoing shall not relieve the Borrower from any requirement
hereunder to obtain the consent of the Lenders for the incurrence of
any Indebtedness.
"Prime Rate" means the rate of interest per annum publicly
----------
announced from time to time by The Chase Manhattan Bank as its prime rate
in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is
publicly announced as being effective.
23
"Pro Forma Compliance" shall exist if (a) Holdings and the
--------------------
Borrower shall be in pro forma compliance with the covenants set forth in
--- -----
Section 6.12 recomputed, with respect to income statement items, as of the
last day of the most recently ended fiscal quarter for which financial
statements have been delivered in accordance with subsection 5.01 as if the
events with respect to which Pro Forma Compliance is being measured had
occurred on the first day of each relevant period with respect to which Pro
Forma Compliance is being measured and as if Restricted Payments under
Section 6.08(a)(iii) were deductions to EBITDA and (b) no Default or Event
of Default shall exist either immediately prior to the events with respect
to which Pro Forma Compliance is being determined or after giving effect to
such events.
"Qualified Vendor" means Ericsson Inc. or an affiliate thereof or
----------------
Lucent Technologies Inc. or an affiliate thereof.
"Qualified Vendor Agreement" shall have the meaning assigned
--------------------------
thereto in Section 6.01(a)(v).
"Real Property Assets" means all interests (including leasehold
--------------------
interests) of the Borrower and its Subsidiaries in real property.
"Real Property-Related Equipment" means all equipment (as defined
-------------------------------
in the UCC) of the Borrower or any Subsidiary that constitutes a fixture
(as defined in the UCC) on Real Property Assets.
"Real Property Subsidiary" means Triton PCS Property Company,
------------------------
L.L.C. and/or any Wholly Owned Subsidiary of the Borrower designated by the
Borrower as the Real Property Subsidiary by notice to the Administrative
Agent; provided, however, that (i) such Subsidiary has no obligations or
-------- -------
liabilities other than as permitted by Section 3.13, (ii) the stock of such
Subsidiary is pledged to the Collateral Agent for the benefit of the
Lenders in accordance with the terms of the Pledge Agreement and (iii) the
Borrower and such Subsidiary have entered into a Special Purpose Subsidiary
Funding Agreement.
"Register" has the meaning set forth in Section 9.04.
--------
"Related Business" means any business of the type conducted by
----------------
the Borrower and its Subsidiaries on the Effective Date or any business
contemplated to be conducted by the Borrower and its Subsidiaries in the
business plan
24
delivered to the Lenders prior to the date hereof and any business directly
related thereto (including the business contemplated to be conducted by the
Borrower by (S) 7.11(b) of the Stockholders Agreement, subject to the
conditions therein).
"Related Parties" means, with respect to any specified Person,
---------------
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
----------------
Exposures, Term Loans and unused Commitments representing more than 50% of
the sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws, the partnership agreement or other
organizational or governing documents of such Person, and any law, treaty,
rule or regulation, or determination, judgment, writ, injunction, decree or
order of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer" means any of the president, chief executive
-------------------
officer or chief financial officer of the Borrower.
"Restricted Payment" means any dividend or other distribution
------------------
(whether in cash, securities or other property) with respect to any shares
of any class of capital stock of the Borrower or any Subsidiary, or any
payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any such shares of
capital stock of the Borrower or any Subsidiary or any option, warrant or
other right to acquire any such shares of capital stock of the Borrower or
any Subsidiary.
"Revolving Availability Period" means the period from and
-----------------------------
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Revolving Loans hereunder, as
such commitment may be
25
(a) reduced from time to time pursuant to Section 2.06 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04. The initial amount of each Lender's Revolving
Commitment is set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Revolving
Commitment, as applicable. The initial aggregate amount of the Lenders'
Revolving Commitments is $100,000,000.
"Revolving Exposure" means, with respect to any Lender at any
------------------
time, the sum of the outstanding principal amount of such Lender's
Revolving Loans.
"Revolving Lender" means a Lender with a Revolving Commitment or,
----------------
if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to clause (c) of
--------------
Section 2.01.
"Revolving Maturity Date" means the date which is eight and one-
-----------------------
half years from the Effective Date.
"S&P" means Standard & Poor's.
---
"Secured Parties" has the meaning assigned to such term in the
---------------
Security Agreement.
"Secured Real Property Assets" means all Real Property Assets
----------------------------
(including Mortgaged Properties) in which the Administrative Agent, for the
benefit of the Secured Parties, has a first priority perfected Mortgage or
other first priority perfected security interest pursuant to the Security
Documents.
"Secured Real Property-Related Equipment" means Real Property
---------------------------------------
Related Equipment in which the Administrative Agent, for the benefit of
the Secured Parties, has a first priority perfected security interest
pursuant to the Security Documents.
"Securities Purchase Agreement" means the Securities Purchase
-----------------------------
Agreement by and among AW, Holdings, and the other parties thereto dated as
of October 8, 1997, including the schedules thereto.
"Security Agreement" means the Security Agreement among the
------------------
Borrower, the Subsidiary Loan Parties and the Administrative Agent,
substantially in the form of Exhibit E.
26
"Security Documents" means the Security Agreement, the Pledge
------------------
Agreement, the Mortgages and the Consents to Assignment and each other
security agreement or other instrument or document executed and delivered
pursuant to any of the foregoing or Section 5.12 or 5.13 to secure any of
the Obligations.
"Senior Debt" shall mean all Indebtedness of Holdings, the
-----------
Borrower and the Subsidiaries on a consolidated basis other than the
Subordinated Debt.
"Senior Leverage" means, on any date, the ratio of (a) Senior
---------------
Debt on such date to (b) Annualized EBITDA for the most recently ended
fiscal quarter for which financial statements have been delivered in
accordance with Section 5.01.
"Series A Preferred Stock" means the Series A Preferred Stock,
------------------------
par value $.01 per share, of Holdings.
"Series C Preferred Stock" means the Series C Preferred Stock,
------------------------
par value $.01 per share, of Holdings.
"Series D Preferred Stock" means the Series D Preferred Stock,
------------------------
par value $.01 per share, of Holdings.
"Special Purpose Subsidiary" means the License Subsidiary and the
--------------------------
Real Property Subsidiary.
"Special Purpose Subsidiary Funding Agreement" means an agreement
--------------------------------------------
between the Borrower and/or Triton PCS Operating Company, L.L.C. and each
Special Purpose Subsidiary whereby (a) such Special Purpose Subsidiary
agrees to provide to the Borrower the benefit of the use of such Special
Purpose Subsidiary's assets, (b) the Borrower agrees to pay to such Special
Purpose Subsidiary an amount equal to all liabilities of such Special
Purpose Subsidiary less any amounts contributed by the Borrower to the
equity of such Special Purpose Subsidiary to fund such liabilities, (c) the
Borrower agrees to cause all Contractual Obligations of such Special
Purpose Subsidiary to be performed and all Requirements of Law of such
Special Purpose Subsidiary to be complied with and (d) the Borrower and
such Special Purpose Subsidiary agree, for the benefit of the
Administrative Agent and the Secured Parties, to the assignment by each of
its rights thereunder to the Administrative Agent for the benefit of the
Secured Parties.
"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
27
(including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative
Agent is subject for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to
be subject to such reserve requirements without benefit of or credit for
proration, exemptions or offsets that may be available from time to time to
any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Stockholders Agreement" means the Stockholders' Agreement among
----------------------
AW, the Borrower and the other parties thereto dated the date hereof.
"Subordinated Debt" means high yield subordinated debt issued by
-----------------
the Borrower or Holdings on terms reasonably acceptable to the Lenders
maturing on a date that is not earlier than the date which is six months
subsequent to the Tranche B Maturity Date in a minimum aggregate principal
amount of $125,000,000 and the Indebtedness represented thereby and
refinancings of such Indebtedness; provided that (i) any such refinancing
Indebtedness (a) shall not have a greater outstanding principal amount, an
earlier maturity date, or a decreased weighted average life than the
Subordinated Debt refinanced and (b) shall be subordinated to the
Indebtedness created under the Loan Documents to at least the extent of,
and shall otherwise be issued on terms no less favorable to the Lenders
than, the Subordinated Debt refinanced and (ii) the proceeds of such
refinancing Indebtedness shall be used solely to repay the Subordinated
Debt refinanced thereby and fees and expenses in connection therewith.
"Subordinated Debt Documents" means the indenture under which the
---------------------------
Subordinated Debt, if any, is issued and all other instruments, agreements
and other documents evidencing or governing the Subordinated Debt, if any,
or providing for any Guarantee or other right in respect thereof.
"Subscribers" means as of any date, all customers then receiving
-----------
Wireless Services from the Borrower or any of its Subsidiaries none of the
subscriber payments (other than those disputed in good faith by such
customer) of which are, as of such date, past due more than 60 days (or
past due for more than such shorter period of time as the Borrower may
28
have established for accounting or credit policy purposes for treating a
customer as not being in good standing).
"subsidiary" means, with respect to any Person (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 Party" means any Subsidiary that is not a
---------------------
Foreign Subsidiary.
"System" means, as to any Person, assets constituting a radio
------
communications system authorized under the rules for wireless
communications services (including any license and the network, marketing,
distribution, sales, customer interface and operations functions relating
thereto) owned and operated by such Person.
"Taxes" means any and all present or future taxes, levies,
-----
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Term Loans" means Tranche A Term Loans and Tranche B Term Loans.
----------
"Total Capital" means, at any date, the sum of (a) Funded Debt
-------------
outstanding on such date plus (b) Contributed Equity on such date plus (c)
----
Committed Equity on such date.
"Total Debt" shall mean, at any time, all Indebtedness of
----------
Holdings, the Borrower and the Subsidiaries as determined on a consolidated
basis in accordance with GAAP.
"Tranche A Availability Period" means the period from and
-----------------------------
including the Effective Date to but excluding the
29
earlier of the third anniversary of the Effective Date and the date of
termination of the Tranche A Commitments.
"Tranche A Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche A Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the
Tranche A Term Loans to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06
and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The initial amount of each
Lender's Tranche A Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed
its Tranche A Commitment, as applicable. The initial aggregate amount of
the Lenders' Tranche A Commitments is $175,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or
----------------
an outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means the date that is eight and one-
-----------------------
half years from the Effective Date.
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
-------------------
Section 2.01.
"Tranche B Availability Period" means the period from and
-----------------------------
including the Effective Date to but excluding the earlier of the date that
is six months from the Effective Date and the date of termination of the
Tranche B Commitments.
"Tranche B Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche B Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the
Tranche B Term Loans to be made by such Lender hereunder, as such
commitment may be (a) reduced from time to time pursuant to Section 2.06
and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 9.04. The initial amount of each
Lender's Tranche B Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed
its Tranche B Commitment, as applicable. The initial aggregate amount of
the Lenders' Tranche B Commitments is $150,000,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment or
----------------
an outstanding Tranche B Term Loan.
30
"Tranche B Maturity Date" means the date that is nine and one
-----------------------
quarter years from the Effective Date.
"Tranche B Rate" means, with respect to any Tranche B Term Loan
--------------
(a) 1.75% per annum, in the case of an ABR Loan, and (b) 3.00% per annum,
in the case of a Eurodollar Loan.
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of
-------------------
Section 2.01.
"Transactions" means (a) the execution, delivery and performance
------------
by each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof, (b) the execution,
delivery and performance by each Loan Party of the Subordinated Debt
Documents, if any, to which it is to be a party, the issuance of the
Subordinated Debt, if any, and the use of the proceeds thereof and (c) the
Initial Equity Contributions.
"Type", when used in reference to any Loan or Borrowing, refers
----
to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"UCC" mean the Uniform Commercial Code of the State of New York.
---
"Wholly Owned Subsidiary" of any person shall mean a subsidiary
-----------------------
of such person of which securities (except for directors' qualifying
shares) or other ownership interests representing 100% of the equity or
100% of the ordinary voting power or 100% of the general partnership
interests are, at the time any determination is being made, owned,
controlled or held by such person or one or more wholly owned subsidiaries
of such person or by such person and one or more wholly owned subsidiaries
of such person.
"Withdrawal Liability" means liability to a Multiemployer Plan as
--------------------
a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Wireless Services" means broadband personal communications
-----------------
services provided in one or more Systems (including cellular services
provided on the 850 MHZ band to the extent such services constitute a
Related Business).
31
SECTION 1.02. Classification of Loans and Borrowings. For
---------------------------------------
purposes of this Agreement, Loans may be classified and referred to by
Class (e.g., a "Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or
---- ----
by Class and Type (e.g., a "Eurodollar Revolving Loan"). Borrowings also
----
may be classified and referred to by Class (e.g., a "Revolving Borrowing")
----
or by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a
---- ----
"Eurodollar Revolving Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein
----------------
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the 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 and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
-----------------------
expressly provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from time to time;
provided that, if the Borrower notifies the Administrative Agent that the
--------
Borrower requests an amendment to any provision hereof to eliminate the
effect of any change occurring after the date hereof in GAAP or in the
application thereof on the operation of such provision (or if the
Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless
of whether any such notice is given before or after such change in GAAP or
in
32
the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions
------------
set forth herein, each Lender agrees (a) to make Tranche A Term Loans to
the Borrower during the Tranche A Availability Period in an aggregate
principal amount not exceeding its Tranche A Commitment, (b) to make
Tranche B Term Loans to the Borrower during the Tranche B Availability
Period in a principal amount not exceeding its Tranche B Commitment and (c)
to make Revolving Loans to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will
not result in such Lender's Revolving Exposure exceeding such Lender's
Revolving Commitment; provided, however, that (i) on the Effective Date,
-------- -------
the Lenders will make Tranche B Term Loans to the Borrower in an aggregate
principal amount of not less than 50% of the initial aggregate amount of
the Lenders' Tranche B Commitments, and (ii) no Tranche A Term Loans or
Revolving Loans will be made during the Tranche B Availability Period
unless the Lenders have made Tranche B Term Loans to the Borrower in an
aggregate principal amount equal to the aggregate amount of the Lenders'
Tranche B Commitments. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans. Amounts repaid or prepaid in respect of Term
Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
---------------------
made as part of a Borrowing consisting of Loans of the same Class and Type
made by the Lenders ratably in accordance with their respective Commitments
of the applicable Class. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its
obligations hereunder; provided that the Commitments of the Lenders are
--------
several and no Lender shall be responsible for any other Lender's failure
to make Loans as required.
(b) Subject to Section 2.12, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as
the Borrower may request in accordance herewith. Each Lender at its option
may make any
33
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option
--------
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000. At the
time that each ABR Revolving Borrowing is made, such Borrowing shall be in
an aggregate amount that is an integral multiple of $1,000,000 and not less
than $2,000,000; provided that an ABR Revolving Borrowing may be in an
--------
aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments. Borrowings of more than one Type and Class may be
outstanding at the same time; provided that there shall not at any time be
--------
more than a total of 10 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Revolving Maturity Date, Tranche A Maturity
Date or Tranche B Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
------------------------
Borrowing or Term Borrowing, the Borrower shall notify the Administrative
Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business
Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Borrowing
Request in a form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving
Borrowing, Tranche A Term Borrowing or Tranche B Term Borrowing;
(ii) the aggregate amount of such Borrowing;
34
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated
by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.06.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified
with respect to any requested Eurodollar Revolving Borrowing, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance
with this Section, the Administrative Agent shall advise each Lender of the
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. The Administrative Agent
will make such Loans available to the Borrower by promptly crediting the
amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by
the Borrower in the applicable Borrowing Request.
(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
35
amount with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of
payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing
-------------------
and Term Borrowing initially shall be of the Type specified in the
applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided
in this Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from
such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request in a form approved by the
Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
36
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing
or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid
as provided herein, at the end of such Interest Period such Borrowing shall
be converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies
the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
(f) A Borrowing of any Class may not be converted to or
continued as a Eurodollar Borrowing if after giving effect thereto (i) the
Interest Period therefor would commence before and end after a date on
which any principal of the Loans of such Class is scheduled to be repaid
and (ii) the sum of the aggregate principal amount of outstanding
Eurodollar Borrowings of such Class with Interest Periods ending on or
prior to such scheduled repayment date plus the aggregate principal amount
of
37
outstanding ABR Borrowings of such Class would be less than the aggregate
principal amount of Loans of such Class required to be repaid on such
scheduled repayment date.
SECTION 2.06. Termination and Optional Reduction of Commitments.
-------------------------------------------------
(a) Unless previously terminated, (i) the Tranche A Commitments shall
terminate at 5:00 p.m., New York City time, on the last day of the Tranche
A Availability Period, (ii) the Tranche B Commitments shall terminate at
5:00 p.m., New York City time, on the last day of the Tranche B
Availability Period and (iii) the Revolving Commitments shall terminate on
the Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of
--------
the Commitments of any Class shall be in an amount that is an integral
multiple of $1,000,000 and not less than $2,000,000, (ii) the Borrower
shall not terminate or reduce the Revolving Commitments if, after giving
effect to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.09, the sum of the Revolving Exposures would exceed the
total Revolving Commitments and (iii) the Borrower may not reduce or
terminate the Tranche B Commitments if any portion of the Revolving
Commitments or Tranche A Commitments is outstanding.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section shall be irrevocable; provided that a
--------
notice of termination of the Revolving Commitments delivered by the
Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments of any Class shall be
permanent. Each reduction of the Commitments of any Class shall be made
ratably among the Lenders in accordance with their respective Commitments
of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
-------------------------------------
Borrower hereby unconditionally promises to pay (i) to the Administrative
Agent for the account of each
38
Lender the then unpaid principal amount of each Revolving Loan of such
Lender on the Revolving Maturity Date and (ii) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Term Loan of such Lender as provided in Section 2.08.
(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, to the extent permitted by law,
be prima facie evidence of the existence and amounts of the obligations
----- -----
recorded therein; provided that the failure of any Lender or the
--------
Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans
in accordance with the terms of this Agreement.
(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 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).
SECTION 2.08. Automatic Revolving Commitment Reductions;
------------------------------------------
Amortization of Term Loans. (a) The aggregate amount of the Lenders'
---------------------------
Revolving Commitments shall automatically and permanently reduce in eight
consecutive
39
quarterly reductions occurring on the date that is six years and six months
after the Effective Date and on each successive date thereafter which is
three months after the preceding reduction date, in the aggregate amount
set forth below for each reduction:
Reduction Amount
--------- ------
1-2 $ 5,000,000
--- -----------
3-6 $10,000,000
--- -----------
7-8 $25,000,000
--- -----------
(b) Subject to adjustment pursuant to paragraph (e) of this
Section, the Borrower shall repay Tranche A Term Loans in 18 consecutive
quarterly installments, payable on the date that is four years after the
Effective Date and on each successive date thereafter which is three months
after the preceding installment date, in the aggregate amount set forth
below for each installment:
Installment Amount
----------- ------
1-4 $ 4,375,000
--- -----------
5-8 $ 6,562,500
--- -----------
9-12 $ 8,750,000
---- -----------
13-16 $10,937,500
----- -----------
17-18 $26,250,000
----- -----------
(c) Subject to adjustment pursuant to paragraph (e) of this
Section, the Borrower shall repay Tranche B Term Loans in 21 consecutive
quarterly installments, payable on the date that is four years from the
Effective Date and on each successive date thereafter which is three months
after the preceding installment date, in the aggregate amount set forth
below for each installment:
Installment Amount
------------ ------
1-4 $ 375,000
--- ------------
5-8 $ 375,000
--- ------------
9-12 $ 375,000
---- ------------
13-16 $ 375,000
----- ------------
17-20 $ 7,500,000
----- ------------
21 $114,000,000
-- ------------
(d) To the extent not previously paid, (i) all Tranche A Term
Loans shall be due and payable on the Tranche A Maturity Date and (ii) all
Tranche B Term Loans shall be due and payable on the Tranche B Maturity
Date.
40
(e) If the initial aggregate amount of the Lenders' Term
Commitments of either Class exceeds the aggregate principal amount of Term
Loans of such Class that are made during the Tranche A Availability Period
or the Tranche B Availability Period, as the case may be, then the
scheduled repayments of Term Borrowings of such Class to be made pursuant
to this Section shall be reduced ratably by an aggregate amount equal to
such excess. Any prepayment of a Term Borrowing of either Class shall be
applied to reduce the subsequent scheduled repayments of the Term
Borrowings of such Class to be made pursuant to this Section ratably.
(f) Prior to any repayment of any Term Borrowings of either
Class hereunder, the Borrower shall select the Borrowing or Borrowings of
the applicable Class to be repaid and shall notify the Administrative Agent
by telephone (confirmed by telecopy) of such selection not later than 11:00
a.m., New York City time, three Business Days before the scheduled date of
such repayment; provided that each repayment of Term Borrowings of either
--------
Class shall be applied to repay any outstanding ABR Term Borrowings of such
Class before any other Borrowings of such Class. Each repayment of a
Borrowing shall be applied ratably to the Loans included in the repaid
Borrowing. Repayments of Term Borrowings shall be accompanied by accrued
interest on the amount repaid.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have
--------------------
the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of
any Prepayment Event, immediately after such Net Proceeds are received, the
Borrower shall prepay Term Borrowings and the Revolving Commitments shall
be automatically and permanently reduced in an aggregate amount (to be
applied ratably among the Tranche A Term Loans, the Tranche B Term Loans
and the Revolving Commitments based on their then respective amounts) equal
to (i) in the case of an event described in clause (c) of the definition of
"Prepayment Event", 50% of such Net Proceeds and (ii) in the case of an
event described in any other clause of the definition of "Prepayment
Event", 100% of such Net Proceeds.
(c) Following the end of the fiscal year of the Borrower ending
December 31, 2001 and following the end of each subsequent fiscal year, the
Borrower shall prepay Term Borrowings and the Revolving Commitments shall
be
41
automatically and permanently reduced in an aggregate amount (to be applied
ratably among the Tranche A Term Loans, the Tranche B Term Loans and the
Revolving Commitments based on their then respective amounts) equal to 50%
of Excess Cash Flow for such fiscal year. Each prepayment pursuant to this
paragraph shall be made on or before the date on which financial statements
are delivered pursuant to Section 5.01 with respect to the fiscal year for
which Excess Cash Flow is being calculated (and in any event within 105
days after the end of such fiscal year).
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (e) of this Section; provided that each prepayment of
--------
Borrowings of any Class shall be applied to prepay ABR Borrowings of such
Class before any other Borrowings of such Class. In the event of any
optional or mandatory prepayment of Term Borrowings made at a time when
Term Borrowings of both Classes remain outstanding, the Borrower shall
select Term Borrowings to be prepaid so that the aggregate amount of such
prepayment is allocated between the Tranche A Term Borrowings and Tranche B
Term Borrowings pro rata based on the aggregate principal amount of
outstanding Borrowings of each such Class; provided that any Tranche B
--------
Lender may elect, by notice to the Administrative Agent by telephone
(confirmed by telecopy) at least one Business Day prior to the prepayment
date, to decline all or any portion of any prepayment of its Tranche B Term
Loans pursuant to this Section (other than an optional prepayment pursuant
to paragraph (a) of this Section, which may not be declined), in which case
the Net Proceeds or Excess Cash Flow that would have been applied to prepay
Tranche B Term Loans but were so declined shall be applied to prepay
Tranche A Term Loans and to reduce the Revolving Commitments on a pro rata
basis based on their then respective amounts.
(e) The amount of any optional or mandatory prepayments
allocated to Tranche A Term Loans or Tranche B Term Loans shall be applied
pro rata to reduce the principal amount of the then remaining amortization
installments applicable to such Loans set forth in Section 2.08. The
amount of any optional or mandatory commitment reductions allocated to the
Revolving Loans shall be applied pro rata to reduce the principal amount of
the then remaining reductions applicable to such Commitments set forth in
Section 2.08. Any reduction of the Revolving Commitments shall be
accompanied by prepayment of Revolving Loans to the extent the aggregate
amount of such loans outstanding
42
exceeds the total amount of the Revolving Commitments as so reduced.
(f) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the
case of prepayment of a Eurodollar Revolving Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of
prepayment, (ii) in the case of prepayment of an ABR Revolving Borrowing,
not later than 11:00 a.m., New York City time, one Business Day 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; provided
--------
that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as
contemplated by Section 2.08, then such notice of prepayment may be revoked
if such notice of termination is revoked in accordance with Section 2.08.
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 shall be accompanied
by accrued interest to the extent required by Section 2.13.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
-----
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily unused amount of each
Commitment of such Lender for each day during the period from and including
the date hereof to but excluding the date on which such Commitment
terminates. Accrued commitment fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the
date on which any Commitments of such Lender shall expire or terminate,
commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and
shall be payable for the actual number of days elapsed (including the first
day but excluding the last day). For purposes of computing commitment fees
with respect to Revolving Commitments, a Revolving Commitment of a Lender
shall be deemed to be used
43
to the extent of the outstanding Revolving Loans of such Lender.
(b) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for
distribution, in the case of commitment fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
---------
Borrowing shall bear interest at the Alternate Base Rate plus the
Applicable Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Rate.
(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 (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section or (ii)
in the case of any other amount, 2% plus the rate applicable to ABR
Revolving Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving
Loans, upon termination of the Revolving Commitments; provided that (i)
--------
interest accrued pursuant to paragraph (c) of this Section shall be payable
on demand, (ii) in the event of any repayment or prepayment of any Loan
(other than a prepayment of an ABR Revolving Loan prior to the end of the
Revolving Availability Period), accrued interest on the principal amount
repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest
on such
44
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 Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that, by reason of
circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate for such
Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist (provided
that the Administrative Agent shall use commercially reasonable efforts to
determine whether or not the circumstances which have caused the notice,
continue to exist), (i) any Interest Election Request that requests the
conversion of any Borrowing to, or continuation of any Borrowing as, a
Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR
Borrowing.
45
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
----------------
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the London interbank market any
other condition (other than a condition relating to a Tax) affecting
this Agreement or Eurodollar 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 Eurodollar 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 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, as the case may be, 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
46
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 270 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 270-day period referred to
above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
-----------------------
payment of any principal of any Eurodollar Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event
of Default), (b) the conversion of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan or Term Loan on the
date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.11(g) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.17, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had
such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth
any amount or 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.
47
SECTION 2.15. Taxes. (a) Any and all payments by or on account
------
of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
--------
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender, and the Issuing Bank within 30 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender, or the Issuing Bank, on or with respect
to any payment by or on account of any obligation of the Borrower hereunder
or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender, the Issuing Bank or by the
Administrative Agent on its own behalf or on behalf of a Lender, or the
Issuing Bank, shall be conclusive absent manifest error.
(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
48
of the jurisdiction in which the Borrower is located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, including, without
limitation, if such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and intends to claim exemption from the U.S.
Federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Foreign Lender
delivers a Form W-8, a certificate representing that such Foreign Lender is
not a bank for purposes of Section 881(c) of the code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code of the
Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Foreign Lender claiming complete
exemption from, or a reduced rate of, U.S. Federal withholding tax on
payments of interest by the Borrower under this Agreement and the other
Loan Documents.
(f) If the Administrative Agent or a Lender receives a refund in
respect of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall within 30 days
from the date of such receipt pay over to the Borrower (a) such refund (but
only to the extent of indemnity payments made, or additional amounts paid,
by the Borrower under this Section 2.15 with respect to the Indemnified
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative agent or such Lender and (b) interest paid
by the relevant Governmental Authority with respect to such refund);
provided, however, that the Borrower, upon the request of the
-------- -------
Administrative Agent or such Lender shall repay the amount paid over to the
Borrower (plus penalties, interest or other charges) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender
is required to repay such refund to such Governmental Authority.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
--------------------------------------------------
Setoffs. (a) The Borrower shall make each payment required to be made by
--------
it hereunder or under
49
any other Loan Document (whether of principal, interest, 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 setoff 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 its offices at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, except that payments pursuant to Sections 2.13, 2.14, 2.15 and
9.03 shall be made directly to the Persons entitled thereto and payments
pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate
recipient promptly following receipt thereof. If any payment under any Loan
Document shall be due on a day that is not a Business Day, the date for
payment shall be extended to the next succeeding Business Day, and, in the
case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments under each Loan Document
shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of
principal, 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.
(c) If any Lender shall, by exercising any right of set off or
counterclaim or otherwise, obtain payment in respect of any Loan or Loans
as a result of which the unpaid principal portion of its Tranche A Term
Loans, Tranche B Term Loans or Revolving Loans shall be proportionately
less than the unpaid principal portion of the Tranche A Term Loans, Tranche
B Term Loans or Revolving Loans of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and
shall promptly pay to such other Lender the purchase price for, a
participation in the Tranche A Term Loans, Tranche B Term Loans or
Revolving Loans, as the case may be, of such other Lender, so that the
aggregate unpaid principal amount of the Tranche A Term Loans, Tranche B
Term Loans and Revolving Loans and
50
participations in Tranche A Term Loans, Tranche B Term Loans and Revolving
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Tranche A Term Loans, Tranche B Term Loans
and Revolving Loans then outstanding as the principal amount of its Tranche
A Term Loans, Tranche B Term Loans and Revolving Loans prior to such
exercise of any right of setoff or counterclaim or other event was to the
principal amount of all Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans outstanding prior to such exercise of any right of setoff
or counterclaim or other event; provided that (i) if any such
--------
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply
to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of
its Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of setoff and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders 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.
51
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(b), 2.04(c), 2.06(d) or 9.03(c), then
the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such
Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
-----------------------------------------------
(a) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section
2.15, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable
pursuant to Section 2.13 or 2.15, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
--------
written consent of the Administrative Agent, 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) in the case of any such assignment resulting from a claim for
compensation under
52
Section 2.13 or payments required to be made pursuant to Section 2.15, such
assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and
delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
Holdings and the Borrower represent and warrant to the Lenders
that:
SECTION 3.01. Organization; Powers. Each of Holdings, the
---------------------
Borrower and its Subsidiaries is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has
all requisite power and authority to carry on its business as now conducted
and to own and operate Systems in the areas set forth on Schedule 3.14 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
------------------------------
to be entered into by each Loan Party are within such Loan Party's
corporate or other organizational powers and have been duly authorized by
all necessary action. This Agreement has been duly executed and delivered
by the Borrower and constitutes, and each other Loan Document to which any
Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of the
Borrower or such Loan Party (as the case may be), enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
-------------------------------------
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except
such as have been obtained or made and are in full force and effect and
except filings necessary to perfect Liens created under the
53
Loan 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 any of their assets, or give rise to a right thereunder
to require any payment to be made by any Loan Party and (d) will not result
in the creation or imposition of any Lien on any asset of any Loan Party,
except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
------------------------------------------------
(a) Holdings and the Borrower have heretofore furnished to the
Lenders pro forma consolidated balance sheets as of October 31, 1997,
prepared giving effect to the Transactions as if the Transactions had
occurred on such date. Such pro forma consolidated balance sheets (i) have
been prepared in good faith based on the same assumptions used to prepare
the pro forma financial statements included in the Information Memorandum
(which assumptions are believed by the Borrower to be reasonable), (ii) are
based on the best information available to the Borrower after due inquiry,
(iii) accurately reflect all adjustments necessary to give effect to the
Transactions and (iv) present fairly, in all material respects, the pro
forma financial position of the Borrower and its consolidated Subsidiaries
as of such date as if the Transactions had occurred on such date.
(b) Except as disclosed in the financial statements referred to
above or the notes thereto or in the Information Memorandum and except for
the Disclosed Matters, after giving effect to the Transactions, none of
Holdings, the Borrower or its Subsidiaries has, as of the Effective Date,
any material contingent liabilities, unusual long-term commitments or
unrealized losses.
(c) Since October 31, 1997, there has been no material adverse
change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as a
whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
-----------
Subsidiaries has, or with respect to assets to be purchased from a
Qualified Vendor will have upon execution of the Qualified Vendor Agreement
and delivery of the assets contemplated thereby, good title to, or valid
leasehold interests in, all real and personal property material to its
business (including its Mortgaged Properties), except for minor defects in
title that do not
54
interfere with its ability to conduct its business as currently conducted
or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any
other Person, except for any such infringements that, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property
that is owned or leased by the Borrower or any of its Subsidiaries as of
the Effective Date after giving effect to the Transactions.
(d) As of the Effective Date, neither the Borrower nor any of
its Subsidiaries has received notice of, or has knowledge of, any pending
or contemplated condemnation proceeding affecting any Mortgaged Property or
any sale or disposition thereof in lieu of condemnation. Neither any
Mortgaged Property nor any interest therein is subject to any right of
first refusal, option or other contractual right to purchase such Mortgaged
Property or interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There
-------------------------------------
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting Holdings, the Borrower or any of
its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination and that, if adversely determined, could reasonably
be expected, individually or in the aggregate, to result in a Material
Adverse Effect (other than the Disclosed Matters) or (ii) that involve any
of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither none
of Holdings, the Borrower or any Subsidiary (i) has failed to comply with
any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of
any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.
55
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the
aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each Loan
------------------------------------
Party is in compliance with (a) all laws, regulations and orders of any
Governmental Authority applicable to it or its property and (b) the terms
of the PCS Documents and all other indentures, agreements and instruments
binding upon it or its property, except, in the case of agreements,
indentures and instruments other than the PCS Documents, where the failure
to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred
and is continuing.
SECTION 3.08. Investment and Holding Company Status. No Loan
--------------------------------------
Party is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935.
SECTION 3.09. Taxes. Each Loan Party has filed or caused to be
------
filed all Tax returns which, to the knowledge of the Borrower are required
to have been filed and has paid or caused to be paid all Taxes required to
have been paid by it, except (a) Taxes that are being contested in good
faith by appropriate proceedings and for which the Borrower or such
Subsidiary, as applicable, has set aside on its books reserves in
accordance with GAAP or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.
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
56
amounts, exceed by more than $1,000,000 the fair market value of the assets
of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the
-----------
Lenders all agreements, instruments and corporate or other restrictions to
which any Loan Party is subject, and all other matters known to any of
them, that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or
thereunder (as modified or supplemented by other information so furnished)
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, the Borrower represents
only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries; Parents. (a) Schedule 3.12 sets
----------------------
forth the name of, and the ownership interest of the Borrower in, each
Subsidiary of the Borrower and identifies each Subsidiary that is a
Subsidiary Loan Party, in each case as of the Effective Date. Each of the
License Subsidiary and the Real Property Subsidiary is a Wholly Owned
Subsidiary, and all the Capital Stock of each such Person is directly owned
by the Borrower free and clear of any Lien (other than Liens created by the
Security Documents).
(b) As of the Effective Date, the Capital Stock of Holdings will
be owned as set forth on Schedule 3.12. As of the date hereof, to the best
of the Borrower's knowledge, AW is a Wholly Owned Subsidiary of AT&T Corp.
(c) As of the date hereof, there is not, and as of the Effective
Date, there will not be, any issued or outstanding Capital Stock or other
interest of or in Holdings, the Borrower or any of its Subsidiaries other
than as described in subsections 3.12(a) and (b). All outstanding Capital
Stock of each Subsidiary of the Borrower is owned, directly or indirectly,
by the Borrower or another Subsidiary, and all outstanding Capital Stock of
the Borrower, is owned by Holdings, in each case free and clear of all
Liens whatsoever (other than Liens created by the Security Documents).
57
(d) All Licenses which are directly or indirectly held by the
Borrower or any of its Subsidiaries are owned, beneficially and of record
by the License Subsidiary, free and clear of all Liens (other than Liens
under the Security Documents or imposed by the Communications Act).
(e) All Real Property Assets and Real Property-Related Equipment
(other than Excluded Real Property Assets, Excluded Real Property-Related
Equipment, Secured Real Property Assets and Secured Real Property-Related
Equipment) which are directly or indirectly owned by the Borrower or any
other Loan Party are owned, beneficially and of record by the Real Property
Subsidiary, free and clear of all Liens (other than Liens under the
Security Documents or Permitted Encumbrances). At least 90% of the value
of (A) the Real Property Assets and (B) the Real Property-Related Equipment
of the Borrower and its Subsidiaries (excluding Secured Real Property
Assets and Secured Real Property-Related Equipment) are owned, beneficially
and of record, free and clear of all Liens (other than the Liens under the
Security Documents) by the Real Property Subsidiary.
SECTION 3.13. Absence of Non-Permitted Obligations. None of the
-------------------------------------
Special Purpose Subsidiaries has any obligations or liabilities other than
(a) under the Guarantee Agreement and the Security Agreement, (b) in the
case of the Real Property Subsidiary, under any lease of real property or
equipment which it has entered into in the ordinary course of business and
for taxes incurred in the ordinary course of business which are incident to
being the owner or lessee of real property and equipment, (c) under the
Special Purpose Subsidiary Funding Agreements and (d) franchise and
corporate taxes incurred in the ordinary course in order for it to continue
to maintain its existence.
SECTION 3.14. Licenses. (i) The Borrower and its Subsidiaries
---------
have the full use and benefit of all Licenses necessary to operate a System
in the BTAs listed on Schedule 3.14 and each other area in which the
Borrower or any Subsidiary conducts a broadband personal communications
services business, (ii) such Licenses have been duly issued by the FCC, are
held by the License Subsidiary and are in full force and effect and (iii)
the Borrower and its Subsidiaries are in compliance in all material
respects with all of the provisions of each such License.
SECTION 3.15. No Burdensome Restrictions. No Requirement of Law
---------------------------
or Contractual Obligation (other than, in the case of clause (b) below, any
restriction under subsection 6.08(a)) applicable to Holdings, the Borrower
or
58
any Subsidiary could reasonably be expected to (a) have a Material Adverse
Effect or (b) limit the ability of any Subsidiary to pay dividends or to
make distributions or advances to the Borrower or any other Subsidiary.
SECTION 3.16. Use of Proceeds. The Borrower will use the
----------------
proceeds of the Loans to fund capital expenditures related to the
construction of the Network, the acquisition of Related Businesses, working
capital needs of the Borrower and subscriber acquisition costs.
SECTION 3.17. Flood Insurance. To the extent reasonably
----------------
available, the Borrower has obtained for all Mortgaged Properties which are
located in a "flood hazard area", as designated in any Flood Insurance Rate
Map published by the Federal Emergency Management Agency, such flood
insurance in such total amount as the Administrative Agent has from time to
time reasonably required.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a description
----------
of all insurance maintained by or on behalf of the Borrower and its
Subsidiaries as of the Effective Date. As of the Effective Date, all
premiums in respect of such insurance have been paid.
SECTION 3.19. Labor Matters. As of the Effective Date, there
--------------
are no strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened. With
such exceptions as could not reasonably be expected to result in a Material
Adverse Effect, (i) the hours worked by and payments made to employees of
the Borrower and the Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters and (ii) all payments due from the
Borrower or any Subsidiary, or for which any claim may be made against the
Borrower or any Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary.
SECTION 3.20. Solvency. Immediately after the consummation of
---------
the Transactions to occur on the Effective Date and immediately following
the making of each Loan made on the Effective Date and after giving effect
to the application of the proceeds of such Loans, (a) the fair value of the
assets of each Loan Party, at a fair valuation, will exceed its debts and
liabilities, subordinated, contingent or otherwise; (b) the present fair
saleable value of the property of each Loan Party will be greater than the
amount that will be required to pay the probable liability
59
of its debts and other liabilities, subordinated, contingent or otherwise,
as such debts and other liabilities become absolute and matured; (c) each
Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; and (d) each Loan Party will not have unreasonably small capital
with which to conduct the business in which it is engaged as such business
is now conducted and is proposed to be conducted following the Effective
Date.
SECTION 3.21. FCC Compliance. (a) The Borrower and each
---------------
Subsidiary are in compliance in all material respects with the
Communications Act.
(b) The Borrower has no knowledge of any investigation, notice
of apparent liability, violation, forfeiture or other order or complaint
issued by or before the FCC, or of any other proceedings (other than
proceedings relating to the wireless communications industries generally)
of or before the FCC, which could reasonably be expected to have a Material
Adverse Effect.
(c) No event has occurred which (i) results in, or after notice
or lapse of time or both would result in, revocation, suspension, adverse
modifications, non-renewal, impairment, restriction or termination of, or
order of forfeiture with respect to, any License in any respect which could
reasonably be expected to have a Material Adverse Effect or (ii) affects or
could reasonably be expected in the future to affect any of the rights of
the Borrower or the License Subsidiary under any License held by the
Borrower or the License Subsidiary in any respect which could reasonably be
expected to have a Material Adverse Effect.
(d) The Borrower and the License Subsidiary have duly filed in a
timely manner all material filings, reports, applications, documents,
instruments and information required to be filed by it under the
Communications Act, and all such filings were when made true, correct and
complete in all material respects.
(e) The Borrower has no reason to believe that each License of
the Borrower or any Subsidiary will not be renewed in the ordinary course.
SECTION 3.22. Security Documents. (a) The Pledge Agreement is
-------------------
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable security
interest in the Collateral (as defined in the Pledge Agreement) and,
60
when the Collateral is delivered to the Administrative Agent, the Pledge
Agreement shall create a fully perfected first priority Lien on, and
security interest in, all right, title and interest of the pledgors
thereunder in such Collateral, in each case prior and superior in right to
any other person.
(b) The Security Agreement is effective to create in favor of
the Administrative Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable security interest in the Collateral (as
defined in the Security Agreement) and, when financing statements in
appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate, the Security Agreement shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest
of the grantors thereunder in such Collateral (other than the Intellectual
Property, as defined in the Security Agreement), in each case prior and
superior in right to any other person, other than with respect to Liens
expressly permitted by Section 6.02. Following an Event of Default, the
Borrowers rights under the PCS Documents (other than the Stockholders
Agreement) will be enforceable by the Lenders; provided, however, that the
-------- -------
Administrative Agent shall not assign the Network Licensing Agreement to a
third party without first obtaining AW's consent.
(c) When the Security Agreement is filed in the United States
Patent and Trademark Office and the United States Copyright Office, and,
with respect to Collateral in which a security interest cannot be perfected
by such filings, upon the filing of the financing statements referred to in
paragraph (b) above, the Security Agreement and such financing statements
shall constitute a fully perfected Lien on, and security interest in, all
right, title and interest of the grantors thereunder in the Intellectual
Property (as defined in the Security Agreement), in each case prior and
superior in right to any other person (it being understood that subsequent
recordings in the United States Patent and Trademark Office and the United
States Copyright Office may be necessary to perfect a lien on registered
trademarks, trademark applications and copyrights acquired by the grantors
after the date hereof).
(d) The Mortgages are effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a
legal, valid and enforceable Lien on all of the Borrower's right, title and
interest in and to the Mortgaged Property thereunder and the proceeds
thereof, and when the Mortgages are filed in the offices specified on
Schedule 3.22, the Mortgages shall constitute a fully
61
perfected Lien on, and security interest in, all right, title and interest
of the Borrower in such Mortgaged Property and the proceeds thereof, in
each case prior and superior in right to any other person, other than with
respect to the rights of persons pursuant to Liens expressly permitted by
Section 6.02.
SECTION 3.23. Copyrights, Trademarks, etc. The Borrower and the
----------------------------
Subsidiaries own, or are licensed to use, all copyrights, trademarks, trade
names, patents, technology, know-how and processes, service marks and
rights with respect to the foregoing that are (a) used in or necessary for
the conduct of their respective businesses as currently conducted and (b)
material to the business, assets, operations, properties, prospects or
condition (financial or otherwise) of the Borrower and the Subsidiaries
taken as a whole. The use of such copyrights, trademarks, trade names,
patents, technology, know-how and processes, service marks and rights with
respect to the foregoing by the Borrower and the Subsidiaries does not
infringe on the rights of any Person.
SECTION 3.24. Federal Regulations. No part of the proceeds of
--------------------
any Loans will be used in any manner which would result in a violation of
Regulation G, U or X of the Board as now and from time to time hereafter in
effect or to buy or carry "margin stock" (as defined thereunder) or to
refinance any Indebtedness incurred for such purpose.
SECTION 3.25. Assets and Business of Holdings.
--------------------------------
(a) As of the date hereof Holdings has, and as of the Effective
Date Holdings will have, no assets other than (i) the Capital Stock of
the Borrower, (ii) contract rights under the Securities Purchase
Agreement and (iii) (on the Effective Date) rights under the
Stockholders Agreement.
(b) Holdings is engaged in no business other than the holding of
such assets and the incurrence of debt permitted under Section
6.01(a).
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to
---------------
make Loans hereunder shall not become
62
effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion or opinions (addressed to the Administrative Agent and
the Lenders and dated the Effective Date) of (i) Xxxxxx & Xxxxxxx and
Xxxxxxxxx, Xxxx & Xxxxxxx LLP, counsel for the Borrower, which when
taken together will be substantially in the form of Exhibit B-1 and
(ii) Xxxxxx & Xxxxxxx, special counsel to the Borrower with respect to
FCC matters, substantially in the form of Exhibit B-2 and, in the case
of each such opinion required by this paragraph, covering such other
matters relating to the Loan Parties, the Loan Documents or the
Transactions as the Required Lenders shall reasonably request. The
Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received (i) a
certificate of the Secretary or Assistant Secretary of the Borrower
and each Subsidiary Loan Party dated the Effective Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws,
operating agreement or partnership agreement of such Loan Party as in
effect on the Effective Date and at all times since a date prior to
the date of the resolutions described in clause (B) below, (B) that
attached thereto is a true and complete copy of resolutions duly
adopted by the board of directors (or equivalent governing body),
members or partners of the Borrower and each Subsidiary Loan Party
authorizing the execution, delivery and performance of the Loan
Documents to which such person is a party and, in the case of the
Borrower, the borrowings hereunder, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect,
and (C) as to the incumbency and specimen signature of each officer or
partner of the Borrower (or its general partner) and any Subsidiary
Loan Party executing any Loan Document on behalf of such Loan Party;
(ii) a
63
certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (i) above; and (iii) such other documents as
the Lenders or Cravath, Swaine & Xxxxx, counsel for the Administrative
Agent, may reasonably request.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President
or a Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) Special Purpose Subsidiaries. The Borrower shall have
-----------------------------
transferred to a Real Property Subsidiary all Real Property Assets and
Real Property-Related Equipment other than (A) Real Property Assets
constituting rights under leases that as of the date hereof prohibit
such transfer (without regard to any such prohibition which contains
exceptions if the obligations under the applicable lease were to be
assumed by the Borrower or its Subsidiaries or if the Borrower or its
Subsidiaries were to take other actions which are reasonably within
their power to take ("Restricted Real Property Assets")) and (B)
equipment which constitutes a fixture to any Restricted Real Property
Asset ("Restricted Real Property-Related Equipment") but in any event
the Borrower shall have so transferred assets constituting at least
90% of the value of all Real Property Assets and Real Property-Related
Equipment of the Borrower and its Subsidiaries (excluding Secured Real
Property Assets and Secured Real Property-Related Equipment) as of the
date hereof and provided evidence reasonably satisfactory to the
Administrative Agent of the transfers described above and each of the
Real Property Subsidiary and the License Subsidiary shall have entered
into Special Purpose Subsidiary Funding Agreements with the Borrower.
(g) The Pledge Agreement shall have been duly executed by the
parties thereto, shall have been delivered to the Administrative Agent
and shall be in
64
full force and effect, and all the outstanding (i) intercompany
Indebtedness owed to any Loan Party by the Borrower or any Subsidiary
and (ii) equity interests that are owned by the Borrower or any
Subsidiary Loan Party (in each case as of the Effective Date after
giving effect to the Transactions) (A) shall have been duly and
validly pledged thereunder to the Administrative Agent for the ratable
benefit of the Secured Parties, and (B) certificates representing such
equity interests (except that such certificates representing equity
interests in a Foreign Subsidiary may be limited to 65% of the
outstanding shares of such partnership interests or equity interests
in such Foreign Subsidiary) and promissory notes evidencing such
intercompany Indebtedness shall be in the actual possession of the
Administrative Agent, accompanied by stock powers or other instruments
of transfer, endorsed in blank, with respect to such certificates and
such promissory notes.
(h) The Security Agreement shall have been duly executed by the
parties thereto, shall have been delivered to the Administrative Agent
and shall be in full force and effect, and all documents and
instruments, including Uniform Commercial Code financing statements,
required by law or reasonably requested by the Administrative Agent to
be filed, registered or recorded to create or perfect the Liens
intended to be created under the Security Agreement shall have been
delivered to the Administrative Agent.
(i) The Administrative Agent shall have received a completed
Perfection Certificate (giving effect to the Transactions) dated the
Effective Date and signed by an executive officer or Financial Officer
of the Borrower, together with all attachments contemplated thereby,
including the results of a search of the Uniform Commercial Code (or
equivalent) filings made with respect to the Borrower and the
Subsidiary Loan Parties in the jurisdictions contemplated by the
Perfection Certificate and copies of the financing statements (or
similar documents) disclosed by such search and evidence reasonably
satisfactory to the Administrative Agent that the Liens indicated by
such financing statements (or similar documents) are permitted by
Section 6.02 or have been released.
(j) The Guarantee Agreement shall have been duly executed by the
Subsidiary Loan Parties and the Administrative Agent, shall have been
delivered to the
65
Administrative Agent and shall be in full force and effect.
(k) The Indemnity, Subrogation and Contribution Agreement shall
have been duly executed by the parties thereto, shall have been
delivered to the Administrative Agent and shall be in full force and
effect.
(l) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect.
(m) The Administrative Agent shall have received from the
Borrower a photocopy, certified to be true and complete, of its
Licenses for the BTAs listed in Schedule 3.14 and such Licenses shall
be owned by the Borrower free and clear of all Liens other than liens
imposed by the Communications Act.
(n) The Administrative Agent shall have received from the
Borrower conformed copies, certified and true and complete, of (i) the
Securities Purchase Agreement, (ii) the Network License Agreement,
(iii) the Stockholders Agreement, (iv) the Roaming Agreement, (v) the
Resale Agreement (unexecuted) and (vi) the Special Purpose Subsidiary
Funding Agreements. Each of the agreements referred to in the previous
sentence (other than the Resale Agreement) shall have been duly
executed and delivered on behalf of each party thereto, shall have
been duly authorized thereby, and shall constitute a legal, valid and
binding obligation of such party, enforceable against such party in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law);
and the Borrower shall have delivered to the Lenders a certificate of
a Responsible Officer as to the accuracy of the foregoing.
(o) To the extent not expressly contemplated in the final form
of Securities Purchase Agreement or the final form of Restated
Certificate of Incorporation delivered to the Administrative Agent
prior to October 8, 1997, the Administrative Agent shall be satisfied
with (i) the corporate and capital structure of the Borrower and its
subsidiaries, (ii) the contributions to the Borrower's equity and
(iii) all legal, tax and accounting matters related to the
66
formation, capitalization and operations of the Borrower.
(p) The Borrower shall have entered into or, with respect to the
Qualified Vendor Agreement, will enter into within 30 days of the
Effective Date, (i) supply contracts with vendors for the build out of
the Network and the acquisition of related equipment, and, to the
extent material, such contracts shall be reasonably satisfactory to
the Lenders and (ii) such other agreements with third parties as may
be reasonably necessary to the conduct of its proposed operations in
accordance with its business plan.
(q) The Borrower shall have received all scheduled cash capital
contributions set forth on Schedule I to the Securities Purchase
Agreement, including contributions of $45,000,000 in cash on or prior
to the Effective Date as set forth therein.
(r) Each of Holdings, the Borrower, AW and the other parties
thereto shall have executed and delivered to the Administrative Agent
consents to assignment ("Consents to Assignment") to the
Administrative Agent for the benefit of the Secured Parties, in form
and substance satisfactory to the Administrative Agent, with respect
to the Securities Purchase Agreement, the Network License Agreement
and such of the other PCS Documents as are requested by the
Administrative Agent; provided, however, that, with respect to the
-------- -------
Network License Agreement, such Consent to Assignment will not permit
the Administrative Agent to assign the Network License Agreement to
any person other than the Lenders without first obtaining AW's
consent.
(s) The terms and conditions of any Subordinated Debt, if any,
and the provisions of the Subordinated Debt Documents, if any, shall
be satisfactory to the Lenders and the Administrative Agent shall have
received copies of any Subordinated Debt Documents, if any, certified
by a Responsible Officer as complete and correct.
(t) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the
Transactions shall have been obtained, and all applicable waiting
periods and appeal periods shall have expired or, with respect to the
consent of the FCC to the License Transfer (as defined in the
Securities Purchase Agreement) a Final Order (as defined in the
Securities Purchase Agreement)
67
shall have been obtained, in each case without the imposition of any
burdensome conditions and there shall be no governmental or judicial
action, actual or threatened, that could reasonably be expected to
restrain, prevent or impose burdensome conditions on the Transactions.
To the extent contemplated by the terms of this Agreement and the
Securities Purchase Agreement, the Transactions shall have been, or
substantially simultaneously with the initial funding of Loans on the
Effective Date shall be, consummated in accordance with the PCS
Documents and applicable law, without any amendment to or waiver of
any material terms or conditions of the PCS Documents not approved by
the Required Lenders. The Administrative Agent shall have received
copies of the PCS Documents and all certificates, opinions and other
documents delivered thereunder, certified by a Responsible Officer as
complete and correct and the PCS Documents shall contain no material
changes adverse to the interests of the Lenders compared to the final
form of such documents delivered to the Administrative Agent prior to
October 8, 1997.
(u) The Lenders shall have received pro forma consolidated
balance sheets of the Borrower and Holdings as of October 31, 1997,
reflecting all pro forma adjustments as if the Transactions had been
consummated on such date, and such pro forma consolidated balance
sheets shall be consistent in all material respects with the
projections and other information previously provided to the Lenders.
After giving effect to the Transactions, neither Holdings, the
Borrower nor any of their Subsidiaries shall have outstanding any
shares of preferred stock or any Indebtedness, other than (i)
Indebtedness incurred under the Loan Documents, (ii) the Subordinated
Debt and (iii) preferred stock issued to AW and the other equity
investors listed on Schedules I and II to the Securities Purchase
Agreement pursuant to the terms of the Securities Purchase Agreement.
(v) The Administrative Agent shall have received from the
Borrower (i) the financial statements referred to in Section 3.04 and
(ii) a certificate dated the Effective Date and duly executed by a
Responsible Officer of the Borrower certifying that attached thereto
is the annual budget of the Borrower for the fiscal year ending
December 31, 1998 as well as a 10-year business plan of the Borrower
satisfactory to the Administrative Agent with quarterly projections
for
68
at least the two-year period following the Effective Date.
(w) There shall have been no material adverse change in the
business, assets, results of operations, properties, prospects or
financial condition of the Borrower and the Subsidiaries, taken as a
whole, or of Holdings since October 31, 1997.
(x) Holdings and the Borrower shall be in Pro Forma Compliance.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans
shall not become effective unless each of the foregoing conditions is
satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m.,
New York City time, on the date hereof (and, in the event such conditions
are not so satisfied or waived, the Commitments shall terminate at such
time).
SECTION 4.02. Each Credit Event. The obligation of each Lender
------------------
to make a Loan on the occasion of any Borrowing, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing except with respect
to representations and warranties expressly made only as of the date
hereof or the Effective Date which shall be true in all material
respects as of such date.
(b) At the time of and immediately after giving effect to such
Borrowing no Default shall have occurred and be continuing and the
Borrower shall be in Pro Forma Compliance.
(c) At the time of and immediately after giving effect to such
Borrowing, the Borrower shall be in Pro Forma Compliance with (i) if
the Subordinated Debt has not been issued, the covenant set forth in
subsection 6.12(a) and (ii) if the Subordinated Debt has been issued,
the covenant set forth in subsection 6.12(b); provided, however, that,
-------- -------
after Holdings and the Borrower deliver the financial statements
required for the fiscal quarter ended September 30, 2000 pursuant to
Section 5.01, this clause (c) shall be deemed to have been satisfied
if at
69
the time of and immediately after giving effect to such Borrowing, the
Bororwer is in pro forma compliance with the covenants set forth in
Section 6.12(g) and (i).
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) and (b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full each of Holdings and the Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. Each
-------------------------------------------
of Holdings and the Borrower will furnish to the Administrative Agent and
each Lender:
(a) within 90 days after the end of each fiscal year its audited
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on by KPMG Peat Marwick, 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 the Borrower and its consolidated
Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year, its consolidated balance sheet
and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then
elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial
70
Officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action
taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with
Sections 6.08 and 6.12 and (iii) stating whether any change in GAAP or
in the application thereof has occurred since the date of the
Borrower's audited financial statements referred to in Section 3.04
and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported
on such financial statements stating whether they obtained knowledge
during the course of their examination of such financial statements of
any Default (which certificate may be limited to the extent required
by accounting rules or guidelines);
(e) no more than 45 days after the commencement of each fiscal
year, a detailed consolidated budget for such fiscal year, broken down
by fiscal quarters (including a projected consolidated balance sheet
and related statements of projected operations and cash flow as of the
end of and for each such fiscal quarter) and, promptly when available,
any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by Holdings, the Borrower or any Subsidiary with the Securities
and Exchange Commission, or any Governmental Authority succeeding to
any or all of the functions of said Commission, or with any national
securities exchange, as the case may be;
71
(g) on an annual basis, a copy of the projections as to the
performance of Holdings and the Borrower, presented in a manner
consistent with the projections in the Information Memorandum for the
period from the date of the most recent balance sheet included in the
financial statements delivered pursuant to (a) above through the last
day of the fiscal year in which the Tranche B Maturity Date occurs,
such projections to be accompanied by a certificate of a Responsible
Officer of the Borrower to the effect that such projections have been
prepared using assumptions believed in good faith by the management of
the Borrower to be reasonable as of the date of such certificate
(which shall be subsequent to the date of the most recent balance
sheet included in such financial statements).
(h) within 30 days after the end of each calendar month, a
certificate of a Responsible Officer setting forth (A) the aggregate
number of Subscribers at the end of the calendar month preceding such
calendar month and (B) the aggregate number of Subscribers at the end
of such calendar month;
(i) within 30 days after the end of each fiscal quarter, a
certificate of a Responsible Officer setting forth (A) the aggregate
number of Subscribers whose service terminated during such fiscal
quarter, (B) the aggregate number of Subscribers added during such
fiscal quarter and (C) certain revenue and system build information.
(j) within five Business Days after the same are sent, a copy of
any financial statement, report or notice which Holdings, the Borrower
or any Subsidiary sends to any Person under or pursuant to or in
connection with the Securities Purchase Agreement, the Network License
Agreement, the Stockholders Agreement, the Roaming Agreement, the
Resale Agreement, or any other PCS Document, in each case if such
statement, report or notice relates to an event that has resulted or
could reasonably be expected to result in an Event of Default or a
Material Adverse Effect; and, within five Business Days after the same
are received by Holdings, the Borrower or any Subsidiary, copies of
all notices sent to any such Person under or pursuant to or in
connection with any such agreement or instrument which notice relates
to an event that has resulted or could reasonably be expected to
result in an Event of Default or a Material Adverse Effect; and
72
(k) 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 the Administrative Agent or
any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. Upon a Responsible
---------------------------
Officer having knowledge of the following, the Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting Holdings, the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a
statement of a Financial Officer or other executive officer of the Borrower
setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The
---------------------------------
Borrower will furnish to the Administrative Agent prompt written notice of
any change (i) in any Loan Party's 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 any Loan Party's chief executive
office, its principal place of business, any office in which it maintains
books or records relating to Collateral owned by it or any office or
facility at which Collateral owned by it is located (including the
establishment of any such new office or facility), (iii) in any Loan
Party's identity or corporate structure or (iv) in any Loan Party's Federal
Taxpayer Identification Number. The Borrower agrees not to effect or
permit any change referred to in the preceding sentence unless all filings
73
have been made under the Uniform Commercial Code or otherwise that are
required in order for the Administrative 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 Administrative Agent if any material portion of the Collateral
is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a)
of Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer of the Borrower (i) setting forth the
information required pursuant to Section 2 of the Perfection Certificate or
confirming that there has been no change in such information since the date
of the Perfection Certificate delivered on the Effective Date or the date
of the most recent certificate delivered pursuant to this Section and (ii)
certifying that all Uniform Commercial Code financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in
each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent
necessary to protect and perfect the security interests under the
Collateral Agreement for a period of not less than 18 months after the date
of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Holdings and the
-------------------------------
Borrower will, and will cause each of its Subsidiaries to, do or cause to
be done all things necessary to preserve, renew and keep in full force and
effect its legal existence and the rights, licenses, permits, privileges,
franchises, patents, copyrights, trademarks and trade names material to the
conduct of its business; provided that the foregoing shall not prohibit any
--------
merger, consolidation, liquidation or dissolution permitted under Section
6.04.
SECTION 5.05. Payment of Obligations. Holdings and the Borrower
-----------------------
will, and will cause each of its Subsidiaries to, pay its Indebtedness and
other obligations, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof
is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books reserves with
respect thereto in
74
accordance with GAAP, (c) such contest effectively suspends collection of
the contested obligation and the enforcement of any Lien securing such
obligation and (d) the failure to make payment pending such contest could
not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Holdings and the
--------------------------
Borrower will, and will cause each of its Subsidiaries to, maintain (i) all
property necessary to the conduct of its business in good working order and
condition with such exceptions as would not have a Material Adverse Effect
and (ii) its accounting, software and billing systems and controls at a
level consistent with the standards of other reputable wireless services
providers and reasonably required in connection with the Borrower's
business.
SECTION 5.07. Insurance. Holdings and the Borrower will, and
----------
will cause each of its Subsidiaries to, maintain, with financially sound
and reputable insurance companies insurance on all its property in at least
such amounts and against at least such risks as are usually insured against
by companies engaged in the same or a similar business in the same or
similar locations, and furnish to the Administrative Agent, upon written
request, full information as to the insurance carried.
SECTION 5.08. Casualty and Condemnation. (a) Holdings and the
--------------------------
Borrower will furnish to the Administrative Agent and the Lenders prompt
written notice of any casualty or other insured damage to any 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 Administrative Agent is authorized to
collect such Net Proceeds and, if received by Holdings, the Borrower or any
Subsidiary, such Net Proceeds shall be paid over to the Administrative
Agent; provided that (i) if the aggregate Net Proceeds in respect of such
--------
event (other than proceeds of business income insurance) are less than
$3,000,000, such Net Proceeds shall be paid over to the Borrower unless a
Default has occurred and is continuing, and (ii) all proceeds of business
income insurance shall be paid over to the Borrower unless a Default has
occurred and is continuing. All such Net Proceeds retained by or paid over
to the Administrative Agent shall be held by the Administrative Agent and
released from time to time to pay
75
the costs of repairing, restoring or replacing the affected property in
accordance with the terms of the applicable Security Document, subject to
the provisions of the applicable Security Document regarding application of
such Net Proceeds during a Default.
(c) If any Net Proceeds retained by or paid over to the
Administrative Agent as provided above continue to be held by the
Administrative Agent on the date that is 270 days after the occurrence of
the event resulting in such Net Proceeds, then such Net Proceeds shall be
applied to prepay Term Borrowings as provided in Section 2.09(b).
SECTION 5.09. Books and Records; Inspection and Audit Rights.
-----------------------------------------------
Holdings and the Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which entries which are accurate
and complete in all material respects are made of all dealings and
transactions in relation to its business and activities. The Borrower
will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine
and make extracts from its books and records, and to discuss its affairs,
finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.
SECTION 5.10. Compliance with Laws. Holdings and the Borrower
---------------------
will, and will cause each of its Subsidiaries to, comply with all laws,
rules, regulations and orders of any Governmental Authority applicable to
it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material
Adverse Effect and to comply in all material respects with all of its
material Contractual Obligations (including obligations under any License).
SECTION 5.11. Use of Proceeds. The proceeds of the Loans,
----------------
together with the proceeds of the Initial Equity Contributions and the
Subordinated Debt, if any, will be used only to fund capital expenditures
related to the construction of the Network, the acquisition of Related
Businesses, working capital needs of the Borrower and subscriber
acquisition costs. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of
any of the Regulations of the Board, including Regulations G, U and X.
SECTION 5.12. Additional Subsidiaries. If any additional
------------------------
Subsidiary is formed or acquired after the
76
Effective Date, the Borrower will notify the Administrative Agent and the
Lenders thereof and (a) if such Subsidiary is a Subsidiary Loan Party, the
Borrower will cause such Subsidiary to become a party to the Pledge
Agreement (if such Subsidiary owns capital stock or intercompany
Indebtedness), the Security Agreement, the Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement as contemplated under
each agreement, within three Business Days after such Subsidiary is formed
or acquired and promptly take such actions to create and perfect Liens on
such Subsidiary's assets to secure the Obligations as the Administrative
Agent or the Required Lenders shall reasonably request and (b) if any
shares of capital stock or Indebtedness of such Subsidiary are owned by or
on behalf of any Loan Party, the Borrower will cause such shares and
promissory notes evidencing such Indebtedness to be pledged pursuant to the
Pledge Agreement within three Business Days after such Subsidiary is formed
or acquired (except that, if such Subsidiary is a Foreign Subsidiary,
shares of common stock of such Subsidiary to be pledged pursuant to the
Pledge Agreement may be limited to 65% of the outstanding shares of common
stock of such Subsidiary).
SECTION 5.13. Further Assurances. (a) Holdings and the Borrower
-------------------
will, and will cause each Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all
such further actions (including the filing and recording of financing
statements, fixture filings, mortgages, deeds of trust and other
documents), which may be required under any applicable law, or which the
Administrative Agent or the Required Lenders may reasonably request, to
effectuate the transactions contemplated by the Loan Documents or to grant,
preserve, protect or perfect the Liens created or intended to be created by
the Security Documents or the validity or priority of any such Lien, all at
the expense of the Loan Parties. The Borrower also agrees to provide to the
Administrative Agent, from time to time upon request, evidence reasonably
satisfactory to the Administrative Agent as to the perfection and priority
of the Liens created or intended to be created by the Security Documents
(including opinions of local counsel in the jurisdictions in which assets
of any Loan Party are located).
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower
or any Loan Party after the Effective Date (other than assets constituting
Collateral under the Security Documents that become subject to the Lien of
the Security Documents upon acquisition thereof), the Borrower will notify
the Administrative Agent and the
77
Lenders thereof, and, if requested by the Administrative Agent or the
Required Lenders, the Borrower will cause such assets to be subjected to a
Lien securing the Obligations and will take, and cause the Loan Parties to
take, such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the
Borrower. In addition, if (i) any License is acquired by the Borrower or
any Subsidiary (other than the License Subsidiary) the Borrower will
promptly transfer or cause the transfer to the License Subsidiary of such
License, (ii) any Real Property Assets (other than Restricted Real Property
Assets, Secured Real Property Assets and Excluded Real Property Assets) or
any Real Property-Related Equipment (other than Restricted Real Property-
Related Equipment, Secured Real Property-Related Equipment and Excluded
Real Property Equipment) is acquired by the Borrower or any Subsidiary
(other than the Real Property Subsidiary) the Borrower will promptly
transfer or cause the transfer of such assets to the Real Property
Subsidiary and (iii) any fee interests in real property having at the time
of acquisition thereof a purchase price or fair market value greater than
$1,000,000 (a "Mortgaged Property") are acquired by the Borrower or any
Subsidiary after the date hereof (including Mortgaged Properties of any
Person that becomes a Subsidiary or is merged with or into or consolidated
with the Borrower or any Subsidiary) the Borrower will promptly create or
cause to be created a first priority perfected Mortgage in favor of the
Administrative Agent for the benefit of the Secured Parties on, and pay all
recording taxes, title insurance costs, survey costs and other costs in
connection with such Mortgage.
SECTION 5.14. Interest Rate Protection. As promptly as
-------------------------
practicable, and in any event within 90 days after the Effective Date, the
Borrower will enter into, and thereafter until the final maturity of all
the Loans, will maintain in effect, one or more interest rate protection
agreements with one or more Lenders on such terms as shall be reasonably
satisfactory to the Administrative Agent, the effect of which shall be to
fix or limit the interest cost to the Borrower with respect to at least 50%
of the outstanding Indebtedness of the Borrower (other than indebtedness
which bears interest at a fixed rate) at a maximum rate reasonably
acceptable to the Administrative Agent.
SECTION 5.15. License Drop Down. As promptly as practicable,
------------------
and in any event with 90 days after the Effective Date, the Borrower shall
contribute to the License Subsidiary all Licenses owned by the Borrower
(including the
78
Licenses for the MTAs and BTAs listed in Schedule 3.14) and the License
Subsidiary shall own such Licenses free and clear of all Liens (other than
Liens imposed by the Communications Act).
SECTION 5.16. Business of Holdings; Immediate Contributions to
------------------------------------------------
the Borrower. (a) Holdings shall not engage in any business other than
-------------
holding the Capital Stock of the Borrower and issuing Indebtedness
permitted by Section 6.01.
(b) Holdings shall immediately contribute to the Borrower upon
receipt (i) any capital contributions and (ii) proceeds from the issuance
of any Indebtedness.
SECTION 5.17. Execution of Other Agreements. Within 30 days of
------------------------------
the Effective Date, the Borrower (or a wholly owned Subsidiary) and the
other parties thereto will enter into the Qualified Vendor Agreement and
deliver copies thereof to the Administrative Agent.
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; Certain Equity Securities. (a)
----------------------------------------
Holdings and the Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the Subordinated Debt issued on terms reasonably satisfactory to
the Lenders in an aggregate principal amount not to exceed $150,000,000;
provided that the proceeds of the Subordinated Debt shall be used by the
--------
Borrower solely to fund the build-out of the Network;
(iii) Indebtedness of the Borrower to any Subsidiary (other than any
Special Purpose Subsidiary) and of any Subsidiary (other than any Special
Purpose Subsidiary) to the Borrower or any other Subsidiary (other than any
Special Purpose Subsidiary); provided that Indebtedness of any Subsidiary
--------
that is not a Loan Party to the
79
Borrower or any Subsidiary Loan Party shall be subject to Section 6.05;
(iv) Guarantees by the Borrower of Indebtedness of any Subsidiary
(other than any License Subsidiary) and by any Subsidiary (other than any
Special Purpose Subsidiary) of Indebtedness of the Borrower or any other
Subsidiary (other than any Special Purpose Subsidiary); provided that
--------
Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of
any Subsidiary that is not a Loan Party shall be subject to Section 6.05;
(v) Indebtedness of the Borrower or any Subsidiary (other than a
Special Purpose Subsidiary) incurred to finance the acquisition from a
Qualified Vendor of cellular equipment and ancillary services required for
the initial buildout of the Network pursuant to a purchase agreement
between Triton PCS Equipment Company, L.L.C. and such Qualified Vendor to
be entered into within 30 days of the Closing Date (the "Qualified Vendor
Agreement"); provided that the aggregate principal amount of such
--------
Indebtedness shall not exceed $65 million at any time outstanding;
(vi) Capital Lease Obligations of the Borrower or any Subsidiary
(other than any Special Purpose Subsidiary) with respect to the leasing by
the Borrower of tower sites and equipment that is a fixture thereto;
provided that such Capital Lease Obligations shall not exceed $25,000,000
--------
in aggregate principal amount at any time outstanding;
(vii) Indebtedness (other than Indebtedness described in (v) or (vi)
above) of the Borrower or any Subsidiary (other than any Special Purpose
Subsidiary) incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier maturity date or decreased weighted average life
thereof; provided that such Indebtedness is incurred prior to or within 90
--------
days after such acquisition or the completion of such construction or
improvement and shall not exceed $10,000,000 in aggregate principal amount
at any time outstanding;
80
(viii) Indebtedness incurred to refinance any senior secured
Indebtedness; provided that (x) such refinancing Indebtedness (a) shall
--------
not have a greater outstanding principal amount, an earlier maturity date
or a decreased weighted average life than the Indebtedness refinanced (b)
shall be subordinated to the Indebtedness created under the Loan Documents
to at least the extent of, and shall otherwise be issued on terms no less
favorable to the Lenders than, the Subordinated Debt and (y) the proceeds
of such Indebtedness shall be used solely to repay the senior secured
Indebtedness refinanced thereby and fees and expenses in connection
therewith;
(ix) to the extent that the accrual of dividends with respect to the
Series A Preferred Stock would be considered Indebtedness, the accrual of
dividends with respect to such Series A Preferred Stock; provided that no
--------
dividends may be paid in respect thereof under any circumstances prior to
the date that is six months after the Tranche B Maturity Date; and
(x) other unsecured Indebtedness of the Borrower and the
Subsidiaries (other than any Special Purpose Subsidiary); provided that the
--------
aggregate principal amount of such Indebtedness shall not exceed $3,000,000
at any time outstanding.
(b) Holdings and the Borrower will not, and will not permit any
Subsidiary to, issue any preferred stock (other than preferred stock of
Holdings issued pursuant to the terms of the Securities Purchase Agreement)
or be or become liable in respect of any obligation (contingent or
otherwise) to purchase, redeem, retire, acquire or make any other payment
in respect of any shares of capital stock of Holdings, the Borrower or any
Subsidiary or any option, warrant or other right to acquire any such shares
of capital stock, except for the obligation of Holdings to repurchase
unvested rights to Common Stock of Holdings in an amount not to exceed
$2,000 in the aggregate. No preferred stock issued by Holdings, the
Borrower or any Subsidiary shall be mandatorily redeemable or subject to
mandatory purchase by the Borrower or any Subsidiary, and no dividends may
be paid (it being understood that dividends may accrue) in respect thereof
under any circumstances prior to the date that is six months after the
Tranche B Maturity Date.
SECTION 6.02. Liens. Holdings and the Borrower will not, and
------
will not permit any Subsidiary to, create, incur, assume or permit to exist
any Lien on any property or asset now owned or hereafter acquired by it, or
assign or
81
sell any income or revenues (including accounts receivable) or rights in
respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Subsidiary (other than the License Subsidiary or the Property Subsidiary)
existing on the date hereof and set forth in Schedule 6.02; provided that
--------
(A) such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary and (B) such Lien shall secure only those
obligations which it secures on the date hereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
--------
(A) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, as the case may
be, (B) such Lien shall not apply to any other property or assets of the
Borrower or any Subsidiary and (C) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Subsidiary, as the case may be;
(v) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (A) such security
interests secure Indebtedness permitted by clause (vii) of Section
6.01(a), (B) such security interests and the Indebtedness secured thereby
are incurred prior to or within 180 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
(vi) Liens (not to exceed $3,000,000 in aggregate at any time
outstanding) on goods (and the documents of title related thereto) the
purchase price of which is financed by a documentary letter of credit
issued for the account of the Borrower or its Subsidiaries (other than
the Special Purpose Subsidiaries), provided that such Lien secures only
the obligations of the Borrower
82
or such Subsidiaries in respect of such letter of credit; and
(vii) Liens on assets acquired from a Qualified Vendor securing
Indebtedness permitted by clause (v) of Section 6.01(a) incurred to
finance the acquisition of such assets; provided, however, that (i) such
-------- -------
Qualified Vendor and the Collateral Agent, on behalf of the Secured
Parties, enter into an intercreditor agreement or joint security
agreement providing for the sharing of the security interest in such
assets on terms satisfactory to the Administrative Agent and (ii) the
Borrower or a wholly owned Subsidiary has title to such assets.
SECTION 6.03. Sale and Lease-Back Transactions. The Borrower
---------------------------------
will not, nor will it permit any Subsidiary to, enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer
any property, real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or
other property which it intends to use for substantially the same purpose
as the property being sold or transferred.
SECTION 6.04. Fundamental Changes. (a) Holdings and the
--------------------
Borrower will not, and will not permit any Subsidiary to, merge into or
consolidate with any other Person, or permit any other Person to merge into
or consolidate with it, or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall
have occurred and be continuing (i) any Subsidiary (other than the License
Subsidiary or the Property Subsidiary) may merge into the Borrower in a
transaction in which the Borrower is the surviving corporation, (ii) any
Subsidiary (other than the License Subsidiary or the Property Subsidiary)
may merge into any Subsidiary (other than the License Subsidiary or the
Property Subsidiary) in a transaction in which the surviving entity is a
Wholly Owned Subsidiary and (iii) any Subsidiary (other than the License
Subsidiary on the Property Subsidiary) may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is
in the best interests of the Borrower and is not materially disadvantageous
to the Lenders.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted or contemplated to be conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and Related
Businesses.
83
SECTION 6.05. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions. The Borrower will not, and will not permit any of its
-------------
Subsidiaries to, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a Wholly Owned Subsidiary prior to such
merger) any capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee
any obligations of, or make or permit to exist any investment or
any other interest in, any other Person, or purchase or otherwise acquire
(in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof, to the extent such
investments would not be permitted under any other clause of this
Section;
(c) investments by the Borrower and its Subsidiaries (other than the
License Subsidiary or the Property Subsidiary) in the capital stock of
their Subsidiaries; provided that any such shares of capital stock held
--------
by a Loan Party shall be pledged pursuant to the Pledge Agreement
(subject to the limitations applicable to common stock of a Foreign
Subsidiary referred to in Section 5.12) and no investments may be made
in Subsidiaries that are not Loan Parties;
(d) loans or advances made by the Borrower to any Subsidiary and made
by any Subsidiary to the Borrower or any other Subsidiary; provided that
--------
any such loans and advances made by a Loan Party shall be evidenced by a
promissory note pledged pursuant to the Pledge Agreement and no loans or
advances may be made to Subsidiaries that are not Loan Parties;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that a Subsidiary shall not Guarantee the Subordinated Debt
unless (A) such Subsidiary also has Guaranteed the Obligations pursuant
to the Guarantee Agreement, (B) such Guarantee of the Subordinated Debt
is subordinated to such Guarantee of the Obligations on terms no less
favorable to the Lenders than the subordination provisions of the
Subordinated Debt and (C) such Guarantee of the Subordinated Debt
provides for the release and termination thereof, without action by any
party, upon any release and termination of such Guarantee of the
Obligations; and
84
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business.
SECTION 6.06. Asset Sales. Holdings and the Borrower
------------
will not, and will not permit any Subsidiary to, sell, transfer, lease or
otherwise dispose of any asset, including any capital stock, nor will the
Borrower permit any of it Subsidiaries to issue any additional shares of
its capital stock or other ownership interest in such Subsidiary, except in
the case of the Borrower and its Subsidiaries:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a Subsidiary;
provided that any such sales, transfers or dispositions involving a
--------
Subsidiary that is not a Loan Party shall be made in compliance with
Section 6.09; and
(c) sales, transfers and dispositions of assets (other than capital
stock of a Subsidiary) that are not permitted by any other clause of
this Section; provided that the aggregate fair market value of all
assets sold, transferred or otherwise disposed of in reliance upon this
clause (c) shall not exceed $1,000,000 during any fiscal year of the
Borrower;
provided that all sales, transfers, leases and other dispositions permitted
--------
hereby shall be made for fair value and solely for cash consideration.
SECTION 6.07. Hedging Agreements. Holdings and the Borrower
-------------------
will not, and will not permit any Subsidiary to, enter into any Hedging
Agreement, other than (a) Hedging Agreements required by Section 5.14 and
(b) Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed
in the conduct of its business or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of
----------------------------------------
Indebtedness. (a) The Borrower will not, nor will it permit any
-------------
Subsidiary to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment, except (i) the Borrower may declare and
pay
85
dividends with respect to its capital stock payable solely in additional
shares of its common stock, (ii) Subsidiaries may declare and pay dividends
ratably with respect to their capital stock, provided that no distribution
--------
referred to in this clause (ii) shall be permitted to be made by any
Special Purpose Subsidiary if any Default or Event of Default shall have
occurred and be continuing or would result therefrom, (iii) the Borrower
may make Restricted Payments, not exceeding $1,000,000 during any fiscal
year, pursuant to and in accordance with stock option plans or other
benefit plans for management or employees of the Borrower and its
Subsidiaries and (iv) if no Default has occurred and is continuing, the
Borrower may make Restricted Payments to Holdings to fund, as and when due,
payments of regularly scheduled interest and principal in respect of any
Indebtedness incurred by Holdings that is permitted by Section 6.01(a),
other than payments in respect of the Subordinated Debt prohibited by the
subordination provisions thereof.
(b) Holdings and the Borrower will not, and will not permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any
payment or other distribution (whether in cash securities or other
property) of or in respect of principal of or interest on any Indebtedness,
or any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancelation or termination
of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness permitted by
Section 6.01 (a), other than payments in respect of the Subordinated
Debt prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01; and
(iv) payment of secured Indebtedness permitted by Section 6.01(a)
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness.
SECTION 6.09. Transactions with Affiliates. Holdings and the
-----------------------------
Borrower will not, and will not permit any Subsidiary to, sell, lease or
otherwise transfer any
86
property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of
its Affiliates, except (a) transactions in the ordinary course of business
that are at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) transactions between or among the
Borrower and the Subsidiary Loan Parties not involving any other Affiliate
and (c) any Restricted Payment permitted by Section 6.08.
SECTION 6.10. Restrictive Agreements. The Borrower will not,
-----------------------
nor will it permit any Subsidiary to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Borrower or
any Subsidiary to create, incur or permit to exist any Lien upon any of its
property or assets, or (b) the ability of any Subsidiary to pay dividends
or other distributions with respect to any shares of its capital stock or
to make or repay loans or advances to the Borrower or any other Subsidiary
or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and
--------
conditions imposed by law or by any Loan Document or Subordinated Debt
Document, (ii) the foregoing shall not apply to restrictions and conditions
existing on the date hereof identified on Schedule 6.10 (but shall apply to
any extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition), (iii) the foregoing shall not
apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold
and such sale is permitted hereunder, (iv) clause (a) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement
relating to secured Indebtedness permitted by this Agreement if such
restrictions or conditions apply only to the property or assets securing
such Indebtedness and (v) clause (a) of the foregoing shall not apply to
customary provisions in leases restricting the assignment thereof.
SECTION 6.11. Amendment of Material Documents. Holdings and the
--------------------------------
Borrower will not, and will not permit any Subsidiary to, amend, modify or
waive any of its rights under (a) any agreement relating to material
Indebtedness, (b) its certificate of incorporation, by-laws or other
organizational documents, (c) the Special Purpose Subsidiary Funding
Agreements or (d) the PCS Documents, in the case of clauses (a), (b) and
(c) above, in a manner adverse to the
87
interests of the Lender and, in the case of clause (d) above, in a manner
that could be adverse in a material respect to the interests of the Lenders
provided that, if requested by the Borrower, the Administrative Agent will
--------
review any contemplated amendment or waiver of such debt or other
agreements and promptly advise the Borrower if such amendment or waiver
could be adverse to the interests of the Lenders.
SECTION 6.12. Financial Covenants. (a) Senior Debt to Total
-------------------- --------------------
Capital. Holdings and the Borrower will not permit the ratio of Senior
--------
Debt to Total Capital in each case on any day on which a Borrowing occurs
and the last day of each fiscal quarter to exceed .50 to 1; provided,
--------
however, that if (i) all Unfunded Commitments (as defined in the Securities
-------
Purchase Agreement) have been contributed in full in cash to the Borrower
and (ii) Covered Pops meet or exceed 60% of the aggregate number of Pops
within the Licensed Territory (as defined in the Network License Agreement)
then the ratio of Senior Debt to Total Capital may exceed .5 to 1 but shall
not exceed .55 to 1.
(b) Total Debt to Total Capital. Holdings and the Borrower will
----------------------------
not permit the ratio of Total Debt to Total Capital in each case on any day
on which a Borrowing occurs and the last day of each fiscal quarter to
exceed .7 to 1.
(c) Covered Pops. The Borrower will not permit Covered Pops as
-------------
a percentage of the total number of Pops in the BTAs and MTAs listed on
Schedule 3.14 on or after any date set forth below to be less than the
percentage set forth opposite such date.
Minimum Covered
---------------
Date Pops
---- ----
June 30, 1999 40%
June 30, 2000 60%
June 30, 2001 75%
June 30, 2002 and thereafter 80%
(d) Subscribers. The Borrower will not permit the number of
------------
Subscribers on or after any date set forth below to be less than the number
of Subscribers set forth opposite such date:
88
Minimum
-------
Date Subscribers
---- -----------
December 31, 1999 90,000
June 30, 2000 140,000
December 31, 2000 215,000
June 30, 2001 255,000
December 31, 2001 and
thereafter 320,000
(e) Aggregate Service Revenue. The Borrower will not permit
-------------------------
Aggregate Service Revenue for any period of four consecutive fiscal
quarters ending on or after any date set forth below to be less than
Aggregate Service Revenue set forth opposite such date.
Minimum Aggregate
-----------------
Date Service Revenue
---- ---------------
December 31, 1999 $ 15,000,000
June 30, 2000 $ 35,000,000
December 31, 2000 $ 72,000,000
June 30, 2001 $ 95,000,000
December 31, 2001 $120,000,000
June 30, 2002 $140,000,000
December 31, 2002 and
thereafter $165,000,000
(f) Total Debt to Annualized EBITDA. Holdings and the Borrower
-------------------------------
will not permit the ratio of (i) Total Debt outstanding on any day from and
including (A) the last day of any fiscal quarter set forth below through
(B) the day immediately preceding the last day of the immediately following
fiscal quarter to (ii) Annualized EBITDA for the period ending on the date
referred to in clause (i)(A) above to exceed the ratio set forth opposite
such date:
Fiscal Quarter
Ending On Ratio
--------- -----
December 31, 2001 19.0 to 1
March 31, 2002 17.0 to 1
June 30, 2002 14.0 to 1
September 30, 2002 11.0 to 1
December 31, 2002 8.0 to 1
June 30, 2003 6.0 to 1
December 31, 2003 and
thereafter 4.5 to 1
(g) Total Debt to Annualized Adjusted EBITDA. Holdings and the
-----------------------------------------
Borrower will not permit the ratio of (i) Total Debt outstanding on any day
from and including (A) the last day of any fiscal quarter set forth below
89
through (B) the day immediately preceding the last day of the immediately
following fiscal quarter to (ii) Annualized Adjusted EBITDA for the period
ending on the date referred to in clause (i)(A) above to exceed the ratio
set forth opposite such date:
Fiscal Quarter
Ending On Ratio
--------- -----
September 30, 2000 23.0 to 1
December 31, 2000 17.0 to 1
March 31, 2001 14.0 to 1
June 30, 2001 12.0 to 1
September 30, 2001 10.0 to 1
December 31, 2001 8.0 to 1
March 31, 2002 and thereafter 6.0 to 1
(h) Senior Debt to Annualized EBITDA. Holdings and the
--------------------------------
Borrower will not permit the ratio of (i) Senior Debt outstanding on any
day from and including (A) the last day of any fiscal quarter set forth
below through (B) the day immediately preceding the last day of the
immediately following fiscal quarter to (ii) Annualized EBITDA for the
period ending on the date referred to in clause (i)(A) above to exceed the
ratio set forth opposite such date:
Fiscal Quarter
Ending On Ratio
-------------- -----
December 31, 2001 15.0 to 1
March 31, 2002 13.0 to 1
June 30, 2002 11.0 to 1
September 30, 2002 9.0 to 1
December 31, 2002 6.0 to 1
June 30, 2003 4.5 to 1
December 31, 2003 and
thereafter 3.0 to 1
(i) Senior Debt to Annualized Adjusted EBITDA. Holdings and the
------------------------------------------
Borrower will not permit the ratio of (i) Senior Debt outstanding on any
day from and including (A) the last day of any fiscal quarter set forth
below through (B) the day immediately preceding the last day of the
immediately following fiscal quarter to (ii) Annualized
90
Adjusted EBITDA for the period ending on the date referred to in clause
(i)(A) above to exceed the ratio set forth opposite such date:
Fiscal Quarter
Ending On Ratio
-------------- -----------
September 30, 2000 20.0 to 1
December 31, 2000 14.0 to 1
March 31, 2001 12.0 to 1
June 30, 2001 10.0 to 1
September 30, 2001 8.0 to 1
December 31, 2001 6.0 to 1
March 31, 2002 and
thereafter 4.0 to 1
(j) Interest Coverage Ratio. Holdings and the Borrower will not
------------------------
permit the ratio of (i) Consolidated EBITDA for any period of four
consecutive fiscal quarters ending on any date or during any "Test Period"
set forth below to (ii) Cash Interest Expense for such period to be less
than the ratio set forth opposite such date or Test Period:
Date or Test Period Ratio
------------------- -----------
September 30, 2002 1.25 to 1
December 31, 2002 -
March 31, 2004 1.50 to 1
June 30, 2004 and
thereafter 2.25 to 1
(k) Fixed Charges Ratio. Holdings and the Borrower will not
-------------------
permit the ratio of (i) Consolidated EBITDA for any period of four
consecutive fiscal quarters ending during any "Test Period" set forth below
to Fixed Charges for such period to be less than the ratio set forth
opposite such Test Period.
Test Period Ratio
----------- ----------
September 30, 2002 -
June 30, 2003 1.05 to 1
September 30, 2003 and
thereafter 1.10 to 1
91
(l) Capital Expenditures. The Borrower will not permit Capital
--------------------
Expenditures of the Borrower and its Subsidiaries for any period set forth
below to exceed the sum set forth opposite such period:
Period Amount
------ ------
Date of formation through
December 31, 1998 $275,000,000
January 1, 1999 - December 31, 1999 $200,000,000
January 1, 2000 - December 31, 2000 $ 75,000,000
January 1, 2001 - December 31, 2001 $ 15,000,000
January 1, 2002 - December 31, 2002 $ 15,000,000
; provided that any permitted amount which is not expended in any of the
--------
periods specified above may be carried over for expenditure in the
immediately subsequent period.
SECTION 6.13. Liabilities of Special Purpose Subsidiaries. The
--------------------------------------------
Borrower will not:
(a) permit the License Subsidiary to incur, assume or permit to exist
any liabilities (other than under the Guarantee Agreement and the Security
Agreement and the Communications Act and taxes and other liabilities
incurred in the ordinary course in order to maintain its existence) or to
engage in any business or activities other than the holding of Licenses; or
(b) permit the Real Property Subsidiary to incur, assume or permit to
exist any liabilities (other than under the Guarantee Agreement and the
Security Agreement and other liabilities incurred in the ordinary course of
business which are incident to being the lessee of real property or the
purchaser, owner or lessee of equipment and taxes and other liabilities in
the ordinary course in order to maintain its existence) or to engage in any
business or activities other than the owning or leasing, as lessee, of Real
Property Assets and the leasing, as lessor, or, as the case may be,
subleasing, as sublessor, thereof to the Borrower, and the owning of Real
Property-Related Equipment constituting fixtures thereto and the leasing
thereof to the Borrower.
92
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 five days;
(c) any representation or warranty made or deemed made by or on behalf
of any Loan Party in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any
report, certificate, financial statement or other document furnished
pursuant to or in connection with any Loan Document or any amendment or
modification thereof or waiver thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of the Borrower and Holdings), 5.11 or 5.16(b)
or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);
(f) any Loan Party shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and
payable;
93
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
--------
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any Loan Party or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect or
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or
for a substantial part of its assets, and, in any such case, such
proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
(i) any Loan Party shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary or for a substantial part of its assets, (iv)
file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) any Loan Party shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
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(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Borrower,
any Loan Party or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by
a judgment creditor to attach or levy upon any assets of the Borrower or
any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
(m) any Lien purported to be created under any Security Document shall
cease to be, or shall be asserted by any Loan Party not to be, a valid
and perfected Lien on any Collateral, with the priority required by the
applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction
permitted under the Loan Documents or (ii) as a result of the
Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it
under the Pledge Agreement or the Administrative Agent's failure to file
necessary continuation financing statements or make required filings
with the Patent and Trademark Office of the United States after delivery
to the Administrative Agent by the Borrower of executed copies of such
financing statements and filings.
(n) any of the Security Documents shall cease to be or shall be
asserted by any Loan Party not to be in full force and effect;
(o) the Guarantee Agreement shall cease to be or shall be asserted by
any Loan Party not to be in full force and effect or the Borrower;
(p) a Change in Control shall occur;
(q) the failure of the Borrower to make any payments required to be
made to the FCC or any other Governmental Authority with respect to any
License held by the Borrower or any Subsidiary or any Indebtedness or
other payment obligations relating thereto as and when due which failure
could reasonably
95
be expected to lead to the loss, termination, revocation, non-renewal or
material impairment of any License or otherwise result in a Material
Adverse Effect;
(r) any termination (prior to the expiration of its term), revocation
or non-renewal by the FCC of one or more Licenses of the Borrower or its
Subsidiaries;
(s) the Borrower's right to use any "AT&T" trademark pursuant to the
Network License Agreement shall terminate (it being understood that, on
or after the date which is five years from the Effective Date, neither
the non-renewal of the Network License Agreement by AW nor the
termination of the Network License Agreement by AW as a result of a
Disqualifying Transaction (as defined in the Stockholders Agreement)
shall constitute an Event of Default hereunder);
(t) the loss by any Loan Party of any rights to the benefit of, or the
occurrence of any default or the termination of any rights under, any
application, marketing or other material agreements, which loss,
occurrence or termination could reasonably be expected to affect in a
material and adverse respect the Borrower's ability to satisfy its
obligations to the Lenders hereunder or to result in a Material Adverse
Effect (it being understood that, on or after the date which is five
years from the Effective Date, neither the non-renewal of the Network
License Agreement by AW nor the termination of the Network License
Agreement by AW as a result of a Disqualifying Transaction (as defined
in the Stockholders Agreement) shall constitute an Event of Default
hereunder); or
(u) the failure of any party to the Securities Purchase Agreement or
the Stockholders Agreement to comply with any funding or contribution
obligation under such Agreement and such failure shall continue
unremedied for a period of 30 days;
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the 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
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principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and
all fees and other obligations of the Borrower accrued hereunder, shall
become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the
Borrower; and in case of any event with respect to the Borrower described
in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting
the generality of the foregoing, (a) the Administrative Agent shall not be
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
97
by the Required Lenders (or such other number or percentage of the Lenders
as shall be necessary under the circumstances as provided in Section 9.02),
and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default
unless and until written notice thereof is given to the Administrative
Agent by the Borrower or a Lender, and the Administrative Agent shall not
be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any
Loan Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other
terms or conditions set forth in any Loan Document, (iv) the validity,
enforceability, effectiveness or genuineness of any Loan Document or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to
be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any 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
98
any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions of the preceding paragraphs shall apply
to any such sub-agent and to the Related Parties of each Administrative
Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative
Agent may resign at any time by notifying the Lenders, the Issuing Bank and
the Borrower. Upon any such resignation, the Required Lenders shall have
the right, in consultation with the Borrower, to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall
have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Bank,
appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to
99
make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document or related agreement or any
document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it c/o Triton Communications
L.L.C., 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxx 00000,
Attention of Xxxxx Xxxxx and Xxxxxxxx Xxxxxxxxx (Telecopy No. 610-933-
2683);
with copies to
Klienbard, Xxxx & Brecker LLP
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx and Xxxxx Xxxxx
Telecopy: 000-000-0000
and
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx and Xxxxxx Xxxxxxx
Telecopy: 000-000-0000
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, Xxx Xxxxx Xxxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention of Xxxx Xxxx (Telecopy No. (000) 000-0000), with a
copy to The Chase Manhattan Bank, 000 Xxxx Xxxxxx, Xxx Xxxx 00000,
Attention of Xxx Xxxxx (Telecopy No. (000) 000-0000); and
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
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Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
--------------------
Administrative Agent or any Lender in exercising any right or power
hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent 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 the
Administrative 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 the Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the Loan Party or Loan
Parties that are parties thereto, in each case with the consent of the
Required Lenders; provided that no such agreement shall (i) increase the
--------
Commitment of any Lender without the written consent of such Lender, (ii)
reduce the principal amount of any Loan or reduce the rate of interest
thereon, or reduce any fees payable hereunder, without the written consent
of each Lender affected thereby, (iii) postpone the scheduled date of
payment of the principal amount of any Loan, or any interest thereon, or
any fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby,
(iv) change Section 2.16(b) or (c) in a
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manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any
other provision of any Loan Document specifying the number or percentage of
Lenders (or Lenders of any Class) required to waive, amend or modify any
rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of
such Class, as the case may be), (vi) release any Subsidiary Loan Party
from its Guarantee under the Collateral Agreement (except as expressly
provided in the Collateral Agreement), or limit its liability in respect of
such Guarantee, without the written consent of each Lender, (vii) release
all or a substantial part of the Collateral from the Liens of the Security
Documents, without the written consent of each Lender, (viii) change any
provisions of any Loan Document in a manner that by its terms adversely
affects the rights in respect of payments due to Lenders holding Loans of
any Class differently than those holding Loans of any other Class, without
the written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each affected Class or (ix)
change the rights of the Tranche B Lenders to decline mandatory prepayments
as provided in Section 2.09, without the written consent of Tranche B
Lenders holding a majority of the outstanding Tranche B Loans; provided
--------
further that (A) no such agreement shall amend, modify or otherwise affect
-------
the rights or duties of the Administrative Agent without the prior written
consent of the Administrative Agent and (B) any waiver, amendment or
modification of this Agreement that by its terms affects the rights or
duties under this Agreement of the Revolving Lenders (but not the Tranche A
Lenders and Tranche B Lenders), the Tranche A Lenders (but not the
Revolving Lenders and Tranche B Lenders) or the Tranche B Lenders (but not
the Revolving Lenders and Tranche A Lenders) may be effected by an
agreement or agreements in writing entered into by the Borrower and
requisite percentage in interest of the affected Class of Lenders.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
-----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including due diligence expenses
and the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the
Loan Documents or any amendments, modifications or waivers of the
provisions thereof (whether or not the transactions contemplated
102
hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent 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 with the Loans made hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Administrative 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 owned or
operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any
--------
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent 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
103
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 Revolving Exposures,
outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
-----------------------
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, 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 Administrative Agent, the Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided
--------
that (i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, each of the Borrower and the Administrative Agent must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000
104
unless each of the Borrower and the Administrative Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement, except that this clause (iii) shall not be construed
to prohibit the assignment of a proportionate part of all the assigning
Lender's rights and obligations in respect of one Class of Commitments or
Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire; and provided further that any consent of the
----------------
Borrower otherwise required under this paragraph shall not be required if
an Event of Default under clause (h) or (i) of Article VII has occurred and
is continuing. Subject to acceptance and recording thereof pursuant to
paragraph (d) of this Section, from and after the effective date specified
in each Assignment and Acceptance the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of Sections 2.13, 2.14, 2.15
and 9.03). Any assignment or transfer by a Lender of rights or obligations
under this Agreement that does not comply with this paragraph shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph
(e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York
a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
--------
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent 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
105
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, 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
Commitment 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 Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of the Loan
Documents; provided that such agreement or instrument may provide that such
--------
Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the first proviso to Section
9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided such Participant agrees to be subject to Section 2.16(c)
as though it were a Lender.
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(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would
be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 2.15 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.15(e) as though it were a
Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such
--------
pledge or assignment of a security interest shall release a Lender from any
of its obligations 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 the Administrative 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 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
107
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 Document and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among
the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement
shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each
of the other parties hereto, and thereafter shall be 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 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.
108
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out
of or relating to any Loan Document, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
or any other Loan Document shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring any
action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection
which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any
other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in
this Agreement or any other Loan Document will affect the right of any
party to this Agreement to serve process in any other manner permitted by
law.
Section 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
---------------------
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
109
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 Administrative Agent and
----------------
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or
by any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or
any suit, action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject
to an agreement containing provisions substantially the same as those of
this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a
breach of this Section or (ii) becomes available to the Administrative
Agent or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all
-----------
information received from or the Borrower relating to or the Borrower or
its business, other than any such information that is available to the
Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information
--------
received from the Borrower after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered
110
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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
TRITON PCS, INC.,
by /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
TRITON PCS HOLDINGS, INC.,
by /s/ Xxxxx X. Xxxxx
-------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK, individually and
as Administrative Agent,
by /s/ Xxx X. Xxxxx
-----------------------
Name: Xxx X. Xxxxx
Title: Vice President
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
by /s/ R. Xxxxx Xxxxxxxxxx
------------------------
Name: R. Xxxxx Xxxxxxxxxx
Title: Vice President
111
TORONTO DOMINION BANK (TEXAS),
by /s/ Xxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANKBOSTON, N.A.,
by /s/ Xxxxx Xxxx
-----------------------
Name: Xxxxx Xxxx
Title: Director
BANK OF HAWAII,
by /s/ Xxxxxxxxx X. Xxxxxxx
------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
BANK OF TOKYO - MITSUBISHI, NEW YORK BRANCH,
by /s/ Xxxxx X. Xxxxxx
-----------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
BARCLAYS BANK PLC,
by /s/ Xxxxxx Xxxx
-----------------------
Name: Xxxxxx Xxxx
Title: Managing Director
112
BHF BANK AKTIENGESELLSCHAFT
by /s/ Xxxxxxxxxx Xxxx
-----------------------
Name: Xxxxxxxxxx Xxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by /s/ Xxx Xxxxxx
-----------------------
Name: Xxx Xxxxxx
Title: Senior Vice President
THE FUJI BANK, LIMITED
New York Branch
by /s/ Xxxxx Xxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President &
Manager
GENERAL ELECTRIC CAPITAL CORPORATION,
by /s/ Xxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager, Operations
ING HIGH INCOME PRINCIPAL PRESERVATION FUND
HOLDINGS, LDC
by ING CAPITAL ADVISORS,INC., as
Investment Advisor
by /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President &
Portfolio Manager
113
XXXXXX COMMERCIAL PAPER, INC.,
by /s/ Xxxxxx X. Xxx
-----------------------
Name: Xxxxxx X. Xxx
Title: Authorized Signatory
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
by /s/ Xxxx Xxxxxxxxx Xxxxxxxx
---------------------------
Name: Xxxx Xxxxxxxxx
Xxxxxxxx
Title: Authorized Signatory
XXX XXXXXX AMERICAN CAPITAL PRIME RATE
INCOME TRUST,
by /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
and Director
LIST OF EXHIBITS
EXHIBIT A Form of Assignment and Acceptance
EXHIBIT B-1 Form of Opinion of Borrower's Counsel
EXHIBIT B-2 Form of Opinion of FCC Counsel
EXHIBIT B-3 Form of Opinion of Local Counsel
EXHIBIT C Form of Guarantee Agreement
EXHIBIT D Form of Pledge Agreement
EXHIBIT E Form of Security Agreement
EXHIBIT F Form of Indemnity Subrogation and Contribution Agreement
EXHIBIT A
[Form of]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of February , 1998 (the
"Credit Agreement"), among Triton PCS, Inc., a Delaware corporation (the
"Borrower"), Triton PCS Holdings, Inc., a Delaware corporation ("Holdings"), the
lenders listed on Schedule 2.01 thereto (the "Lenders") and The Chase Manhattan
Bank, as administrative agent for the Lenders (in such capacity, the
"Administrative Agent") and collateral agent. Terms defined in the Credit
Agreement are used herein with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Effective Date set forth below (but not prior
to the registration of the information contained herein in the Register pursuant
to Section 9.04(d) of the Credit Agreement), the interests set forth below (the
"Assigned Interest") in the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, including, without limitation, the
amounts and percentages set forth below of (i) the Commitments of the Assignor
on the Assignment Date and (ii) the Loans owing to the Assignor which are
outstanding on the Assignment Date. From and after the Assignment Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
Loan Documents and (ii) the Assignor shall, to the extent of the interests
assigned by this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, the
forms specified in Section 2.15(e) of the Credit Agreement, duly completed and
executed by such Assignee, (ii) if the Assignee is not already a Lender under
the Credit Agreement, an Administrative Questionnaire duly completed by the
Assignee and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment ("Assignment Date")
(may not be fewer than 5 Business
Days after the Date of Assignment):
2
Percentage Assigned of
Applicable Facility/Commitment
(set forth, to at least 8 decimals,
as a percentage of the Facility and
the aggregate Commitments
Facility/Commitment Principal Amount Assigned of all Lenders thereunder)
------------------- ------------------------- --------------------------
Revolving Credit $ %
Tranche A $ %
Tranche B $ %
The terms set forth above are hereby agreed to:
_____________________________, as Assignor,
By_______________________________________
Name:
Title:
_____________________________, as Assignee,
By_______________________________________
Name:
Title:
The undersigned hereby consent
to the above assignment /*/
TRITON PCS, INC., THE CHASE MANHATTAN BANK, as Administrative
Agent,
By________________________________
Name:
Title: By_______________________________________
Name:
Title:
_____________________
/*/ To be completed to the extent consents are required under Section
9.04(b) of the Credit Agreement.
EXHIBIT B-1
[Letterhead of]
Xxxxxx & Xxxxxxx and/or
Xxxxxxxxx Xxxx & Xxxxxxx
February , 1998
The Chase Manhattan Bank,
as Administrative Agent and Collateral Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Chase Securities Inc.,
X.X. Xxxxxx Securities Inc.
Toronto Dominion Securities USA
as Arrangers
c/o Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The Lenders party to the Credit
Agreement referred to below (all of
the Addressees, collectively, the
"Creditors")
Ladies and Gentlemen:
We have acted as counsel to Triton PCS, Inc., a Delaware corporation
(the "Borrower"), Triton PCS Holdings, Inc., a Delaware corporation ("Holdings")
and each of the subsidiaries of the Borrower listed on the attached Schedule A
(the "Subsidiaries"), in connection with the execution and delivery today of,
and the consummation of the transactions contemplated by, the Credit Agreement
dated as of February , 1998 (the "Credit Agreement"), among the Borrower, the
financial institutions party thereto as lenders (the "Lenders") and The Chase
Manhattan Bank, as administrative agent (in such capacity, the "Administrative
Agent") and as collateral agent (in such capacity, the "Collateral Agent"). This
opinion is delivered pursuant to Section 4.02(b) of the Credit Agreement.
Capitalized terms used but not defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
(a) the Credit Agreement;
(b) the Guarantee Agreement;
(c) the Security Agreement;
(d) the Pledge Agreement;
(e) the Indemnity, Subrogation and Contribution Agreement;
(f) the Mortgages;
(g) UCC-1 financing statements, copies of which are attached
hereto as Exhibit A (the "Financing Statements"); and
(h) the Assignment of Rights.
2
In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records, agreements,
instruments and other documents, and have made such other investigations, as we
have deemed necessary for the purpose of this opinion.
References in this opinion to the "[ ] UCC" shall mean the
Uniform Commercial Code as in effect on the date hereof in the State of [ ].
[References in this opinion to the "[ ] UCC", the "[ ] UCC", the
"[ ] UCC", the "[ ] UCC" and the "[ ] UCC", shall mean the
Uniform Commercial Code as in effect on the date hereof in the States of
[ ], [ ], [ ], [ ] and [ ], respectively, and solely as
set forth in the CCH Secured Transactions Guide and without regard to the case
law decided thereunder.
Based upon the foregoing, it is our opinion that:
1. The Borrower and each Loan Party (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite corporate power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business and
is in good standing in each jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect, and (d) has the corporate power and
authority to execute, deliver and perform its obligations under each of the Loan
Documents to which it is a party and, in the case of the Borrower, to borrow
under the Credit Agreement.
2. The execution, delivery and performance of each of the Loan
Documents by the Borrower and each Loan Party thereto, the borrowings thereunder
and the creation of the security interests contemplated thereby (a) have been
duly authorized by all requisite corporate and, if necessary, stockholder action
of the Borrower and each Loan Party and (b) will not (i) violate (A) any
provision of the certificate of incorporation or by-laws of the Borrower or any
Loan Party, (B) any law, statute, rule or regulation or any order of any
Governmental Authority applicable to the Borrower or any Loan Party or their
properties or (C) any provision of any indenture or other material agreement or
other material instrument to which the Borrower or any Subsidiary is a party or
by which any of them or any of their property is or may be bound, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or
lapse of time or both) a default under, or give rise to any right to accelerate
or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the Borrower or any Loan Party (other
than any Lien created under the Loan Documents).
3. Each Loan Document has been duly executed and delivered by the
Borrower and each Loan Party thereto and constitutes the legal, valid and
binding obligation of the Borrower and each such Loan Party, in each case
enforceable against the Borrower and each such Subsidiary in accordance with its
terms.
4. No action, consent or approval of, registration or filing with or
any other action by any Governmental Authority is or will be required in
connection with the execution, delivery and performance of the Loan Documents by
the Loan Parties party thereto or the consummation of the transactions
contemplated thereby, other than (i) the filing of any UCC-1 financing
statements and filings with the United States Patent and Trademark Office and
the United States Copyright Office, (ii) the recordation of the Mortgages and
(iii) such authorizations and approvals as have already been obtained and are in
full force and effect.
5. There are not any actions, suits or proceedings at law or in
equity or by or before any Governmental Authority now pending or, to our
knowledge, threatened against or affecting the Borrower or any Loan Party or any
business, property or rights of any such person (i) that involve any Loan
Documents or the transactions contemplated thereby or (ii) 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.
6. All shares of capital stock of each Loan Party have been duly and
validly authorized and issued, are fully paid and non-assessable and are owned
by the Borrower, directly or indirectly, free and clear of all Liens (other than
Liens created under the Loan Documents). No authorized but unissued or treasury
shares of capital stock of any Loan Party are subject to any option, warrant,
right to call or commitment of any kind.
3
Neither the Borrower nor any Loan Party is subject to any obligation (contingent
or otherwise) to repurchase or otherwise acquire or retire any shares of its
capital stock or any securities convertible into or for shares of its capital
stock. Neither the Borrower nor any Loan Party is a party to any agreement
restricting the transfer or voting of any shares of any capital stock of any
Subsidiary.
7. Neither the Borrower nor any Loan Party is an "investment
company" or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940.
8. Neither the Borrower nor any Loan Party is a "holding company" or
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935.
9. The making of the Loans to the Borrower and the application of
the proceeds thereof by the Borrower pursuant to the terms of the Credit
Agreement will not violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
10. The Pledge Agreement, together with possession by the Collateral
Agent of the stock certificates or notes evidencing the Pledged Securities (as
defined in the Pledge Agreement), creates in favor of the Collateral Agent for
the benefit of the Secured Parties a valid and perfected security interest in,
lien on or pledge of the Collateral (as defined in the Pledge Agreement),
subject to no equal or prior security interest of any creditor.
11. The Security Agreement creates in favor of the Collateral Agent
for the benefit of the Secured Parties a valid and perfected security interest
in, lien on or pledge of those items and types of Collateral (as defined in the
Security Agreement).
12. Upon the filing of the Security Agreement in the United States
Patent and Trademark Office and the United States Copyright Office, the
Collateral Agent for the benefit of the Secured Parties will have a valid and
duly perfected security interest in the Intellectual Property (as defined in the
Security Agreement).
13. The Financing Statements (a) are in proper form for filing under
the applicable laws of the State of [ ], (b) adequately identify the
Collateral described therein to provide sufficient notice to third parties of
the security interest referenced therein and (c) are required to be filed with
the Office of the Secretary of State of the State of [ ] and with the
Recorder of [and ] County [Counties]. Upon the filing
of the [ ] Financing Statements, the Collateral Agent for the benefit of the
Secured Parties will have a valid and duly perfected security interest in those
items and types of Collateral (as defined in the Security Agreement) in which a
security interest may be perfected under the [ ] UCC (the "Filing
Collateral"). The filing of the Financing Statements [with the recorders and]
in the offices described above are the only actions, recordings or filings
necessary to publish notice and protect the validity of and to establish of
record the rights of the parties under the Security Agreement with respect to
the Collateral, except (i) that continuation statements under the [ ] UCC are
are required to be filed within six months prior to the expiration of five years
from the date of filing of the Financing Statements, and (ii) that a security
interest in or pledge of money or instruments, other than money or instruments
constituting chattel paper, cannot be perfected by filing financing statements,
but must be perfected by taking physical possession thereof.
14. Subject to appropriate continuation or perfection under the [
] UCC as set forth in the preceding paragraph, the priority of the security
interest in, lien on or pledge of the Collateral created by the Pledge Agreement
and the Security Agreement with respect to any extension of credit (each, a
"Further Advance") made or deemed to have been made by the Creditors after the
date (the "Perfection Date") on which the security interest in, lien on or
pledge of the Collateral shall have been perfected will be the same as the
priority of the security interest, lien on or pledge of the Collateral with
respect to all extensions of credit made or deemed to have been made by the
Creditors on or before the Perfection Date, and such priority will not be
affected by the rights in and to the Collateral of any third party whose
interest in the Collateral attached thereto after the Perfection Date but prior
to the date of such Further Advance.
15. [The [ ] Financing Statements (a) are in proper form for
filing under the [ ] UCC, (b) adequately identify the Collateral described
therein to provide sufficient notice to third parties of the security interest
referenced therein and (c) are required to be filed with the Office of the
Secretary of State of
4
the State of [ ] and with the Recorder of [and ] County
[Counties]. Upon the filing of the [ ] Financing Statements, the
Collateral Agent for the benefit of the Secured Parties will have a valid and
duly perfected security interest in those items and types of Collateral (as
defined in the Security Agreement) in which a security interest may be perfected
under the [ ] UCC./**/]
16. None of the Collateral Agent or the other Creditors is required
(a) to be qualified to do business, file any designation for service of process
or file any reports or pay any taxes in the Commonwealth of Pennsylvania, or (b)
to comply with any statutory or regulatory requirement applicable only to
financial institutions chartered or qualified or required to be chartered or
qualified to do business in the Commonwealth of Pennsylvania, in each case by
reason of the execution and delivery or filing or recording, as applicable, of
any of the Documents, or by reason of the participation in any of the
transactions under or contemplated by the Documents, including, without
limitation, the extension of any credit contemplated thereby, the making and
receipt of payments pursuant thereto and the exercise of any remedy thereunder.
If it were determined that such qualification and filing were required, the
validity of the Documents would not be affected thereby, but (a) if the
Collateral Agent were not qualified it would be precluded from enforcing its
rights as collateral agent on behalf of the Creditors in the courts of the
Commonwealth of Pennsylvania until such time as it is admitted to transact
business in the Commonwealth of Pennsylvania or (b) assuming the Creditors would
institute remedies without the Collateral Agent, they would be precluded from
enforcing their rights in the courts of the Commonwealth of Pennsylvania until
such time as they were admitted to transact business in the Commonwealth of
Pennsylvania. However, the lack of qualification would not result in any waiver
of rights or remedies pending such qualification.
We are admitted to practice in the State of New York and the
Commonwealth of Pennsylvania. We express no opinion as to matters under or
involving the laws of any jurisdiction other than the laws of the State of New
York and the Commonwealth of Pennsylvania, the General Corporation Law of the
State of Delaware, the Federal Laws of the United States and [, to the extent
specifically referred to herein, the [ ] UCC].
This opinion may be relied upon by each of you, by any successors and
assigns of the Administrative Agent or the Collateral Agent, and any
participant, assignee or successor to the interests of the Lenders under the
Loan Documents.
Very truly yours,
______________________
/**/ Repeat for each state, if any, as to which counsel opines on the basis
of a review of the CCH Secured Transactions Guide.
Schedule A
SUBSIDIARIES
[List all subsidiaries of the Borrower]
EXHIBIT B-2
[Letterhead of]
FCC Counsel
February , 1998
The Chase Manhattan Bank,
as Administrative Agent and Collateral Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Chase Securities Inc.,
X.X. Xxxxxx Securities Inc
Toronto Dominion Securities USA
as Arrangers
c/p Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The Lenders party to the Credit
Agreement referred to below (all of
the Addressees, collectively, the
"Creditors")
Ladies and Gentlemen:
We have acted as special FCC counsel to Triton PCS, Inc., a Delaware
corporation (the "Borrower"), Triton PCS Holdings, Inc., a Delaware corporation
("Holdings"), and each of the subsidiaries of the Borrower listed on the
attached Schedule A (the "Subsidiaries"), in connection with the execution and
delivery today of, and the consummation of the transactions contemplated by, the
Credit Agreement dated as of February , 1998 (the "Credit Agreement"), among the
Borrower, the financial institutions party thereto as lenders (the "Lenders")
and The Chase Manhattan Bank, as administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent (in such capacity, the
"Collateral Agent"). This opinion is delivered pursuant to Section 4.02(b) of
the Credit Agreement. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
In connection with this opinion, we have examined, and relied upon,
the FCC licensing records and copies of documents filed by the Borrower and the
License Subsidiary with the FCC and have compared these records to the licenses
listed in Schedule I (the "Licenses"). We also have obtained, and relied upon as
to matters of fact, without independent investigation, such certifications from
officers of the Borrower (the "Officers' Certificates") as we have deemed
necessary for purposes of this opinion. We have also examined FCC orders and
other records of the FCC's Wireless Telecommunications Bureau (the "FCC Files")
and have made telephone inquiries to FCC staff in the FCC's Wireless
Telecommunications Bureau with respect to the opinions stated in paragraphs
(iii), (iv), and (vi) herein. We have also examined the Credit Agreement and the
form of Notes which may be delivered pursuant to the Credit Agreement after the
date hereof, the Guarantee Agreement, the Pledge Agreement, the Securities
Agreement and such other documents and records and made such other
investigations as we have deemed relevant and necessary in connection with this
opinion.
As to matters of fact, we have relied upon and assumed the accuracy
and completeness of the FCC files, the documents filed by the Borrower and the
License Subsidiary with the FCC, and the Officers' Certificate(s). In rendering
this opinion, we have not independently investigated, established or verified
the factual basis of any opinion set forth herein, and, unless otherwise
indicated herein, have relied for such matters solely upon the FCC Files, the
documents filed by the Borrower and the License Subsidiary with the FCC and the
Officers' Certificate(s).
We have assumed: (i) the authenticity of all documents submitted to
us as originals and the conformity with the original documents of any copies
thereof submitted to us as certified, conformed or
2
photostatic copies for our examination; (ii) that the signatures on all
documents examined by us are genuine; (iii) that where any such signature
purports to have been made in a corporate, governmental, fiduciary or other
capacity, the person who affixed such signature to such documents had authority
to do so; and (iv) that all public files, records and certificates of, or
furnished by, governmental or regulatory agencies or authorities are true,
correct and complete.
As to all matters covered by the opinion letter delivered to you on
the date hereof by Xxxxxx & Xxxxxxx, counsel to the Borrower, we have relied
upon such opinion letter and assumed the accuracy of the legal opinions
expressed therein.
Based upon our examination of the foregoing documents, records and
disclosures and subject to the qualifications, assumptions and limitations set
forth herein, we are of the opinion that:
(i) The execution, delivery and performance of the Credit
Agreement, the Guarantee Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Pledge Agreement, the Security Agreement
or any other Loan Document and any Notes, the borrowings under the
Credit Agreement and the use of the proceeds thereof, the granting of
security interests under the Security Documents and the guaranteeing
of the Obligations under the Guarantee Agreement will not result in a
violation of the Communications Act or any order, rule or regulation
of the FCC.
(ii) No consent, approval, authorization, order, registration,
filing or qualification of or with, or any other act by, any court or
governmental agency or body is required under the Communications Act
or the rules, regulations and published policies of the FCC for the
valid execution, delivery and consummation of and performance under
the Loan Documents or the consummation by the Loan Parties of the
transactions contemplated thereby.
(iii) The License Subsidiary holds and has the full use and
benefit of and the right to use all of the Licenses held by it. Such
Licenses are in full force and effect and we are not aware of any
other licenses or other approvals or authorizations required by the
Borrower or any Restricted Subsidiary to conduct its business as now
operated or as contemplated to be operated by it.
(iv) To the best of our knowledge, there is no material respect
in which the operation of the Borrower and the Subsidiaries'
businesses is not in accordance with the Licenses, the Communications
Act and all orders, rules, regulations and published policies of the
FCC.
(v) To the best of our knowledge, there are no material
proceedings threatened, pending or contemplated before the FCC against
or involving the properties, businesses or Licenses of the Borrower or
any Subsidiary.
(vi) To the best of our knowledge, no event has occurred as of
the date hereof that permits, or with notice or lapse of time or both
would permit, the suspension, revocation or termination of such
License or that might result in any other material impairment of the
rights of the Borrower or the Subsidiaries therein.
This opinion letter is rendered to you in connection with the above-
described transactions. It may not be relied upon by you for any other purpose,
or relied upon by any other Person without our prior written consent.
Very truly yours,
Schedule I
PCS Licenses Held by the License Subsidiary
Location Call Sign Market No.
-------- --------- ----------
EXHIBIT B-3
[Letterhead of]
Local Counsel
February , 1998
The Chase Manhattan Bank,
as Administrative Agent and Collateral Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Chase Securities Inc.,
X.X. Xxxxxx Securities Inc
Toronto Dominion Securities USA
as Arrangers
c/o Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
The Lenders party to the Credit
Agreement referred to below (all of
the Addressees, collectively, the
"Creditors")
Ladies and Gentlemen:
We have acted as special counsel in the State of [ ] (the
"State") to Triton PCS, Inc., a Delaware corporation (the "Borrower"), Triton
PCS Holdings, Inc., a Delaware corporation ("Holdings"), and each of the
subsidiaries of the Borrower listed on the attached Schedule A (the
"Subsidiaries"), in connection with the execution and delivery today of, and the
consummation of the transactions contemplated by, the Credit Agreement dated as
of February , 1998 (the "Credit Agreement"), among the Borrower, the financial
institutions party thereto as lenders (the "Lenders") and The Chase Manhattan
Bank, as administrative agent (in such capacity, the "Administrative Agent") and
as collateral agent (in such capacity, the "Collateral Agent"). This opinion is
delivered pursuant to Section 4.02(b) of the Credit Agreement. Capitalized terms
used but not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the following
documents (collectively, the "Documents"):
(a) the Credit Agreement;
(b) the Guarantee Agreement;
(c) the Security Agreement;
(d) the Pledge Agreement;
(e) the Indemnity, Subrogation and Contribution Agreement;
(f) the Mortgages;
(g) UCC-1 financing statements, copies of which are attached
hereto as Exhibit A (the "Financing Statements"); and
(h) the Assignment of Rights.
2
In addition, we have examined originals or copies, certified or
otherwise identified to our satisfaction, of such records, agreements,
instruments and other documents, and have made such other investigations, as we
have deemed necessary for the purpose of this opinion.
References in this opinion to the "UCC" shall mean the Uniform
Commercial Code as in effect on the date hereof in the State.
In rendering this opinion to you, we have assumed that:
(a) there has occurred due execution and delivery of the
Documents; and
(b) except as otherwise set forth in the applicable Security
Documents, the Borrower and each Guarantor, as applicable, owns the
Mortgaged Property (as defined in [the] [each] Mortgage) and the
Collateral (as defined in the Security Agreement and the Pledge
Agreement).
Subject to the foregoing assumptions, we are of the opinion that:
1. None of the Collateral Agent or the other Creditors is required
(a) to be qualified to do business, file any designation for service of process
or file any reports or pay any taxes in the State, or (b) to comply with any
statutory or regulatory requirement applicable only to financial institutions
chartered or qualified or required to be chartered or qualified to do business
in the State, in each case by reason of the execution and delivery or filing or
recording, as applicable, of any of the Documents, or by reason of the
participation in any of the transactions under or contemplated by the Documents,
including, without limitation, the extension of any credit contemplated thereby,
the making and receipt of payments pursuant thereto and the exercise of any
remedy thereunder. If it were determined that such qualification and filing were
required, the validity of the Documents would not be affected thereby, but (a)
if the Collateral Agent were not qualified it would be precluded from enforcing
its rights as collateral agent on behalf of the Creditors in the courts of the
State until such time as it is admitted to transact business in the State or (b)
assuming the Creditors would institute remedies without the Collateral Agent,
they would be precluded from enforcing their rights in the courts of the State
until such time as they were admitted to transact business in the State.
However, the lack of qualification would not result in any waiver of rights or
remedies pending such qualification.
2. The execution, delivery, filing or recording, as applicable, and
performance by the Borrower and each Guarantor of each of the Documents to which
each of them is a party (i) will not violate any existing law, governmental rule
or regulation of the State and (ii) do not require any license, permit,
authorization, consent or other approval of, any exemption by, or any
registration, recording or filing with any court, administrative agency or other
Governmental Authority of the State.
3. Assuming that the Security Agreement and the Pledge Agreement
were governed by the law of the State for the purpose of rendering the opinion
set forth in this paragraph, each of the Security Agreement and the Pledge
Agreement is in proper form under the applicable laws of the State to (i) be
enforceable against the grantors or pledgors named therein in accordance with
its terms and (ii) create and constitute a valid security interest in, lien on
or pledge of the Collateral.
4. The Mortgage[s] [is] [are] in proper form under applicable laws
of the State (a)(i) to be accepted for recording by the Recorder of [and ]
County [Counties] and (ii) to be enforceable against the Borrower and each
Guarantor, as applicable, in accordance with [its] [their] terms, and (b)(i) to
create and constitute valid, legal, binding and enforceable mortgage lien[s] on
the real property described therein (the "Real Property"), (ii) to create and
constitute valid, legal, binding and enforceable perfected security interests in
such of the Mortgaged Property (the "UCC Property") as is subject to the
provisions of Article 9 of the UCC, and (iii) to create and constitute valid,
legal, binding and enforceable perfected common law liens on or pledges of such
of the Mortgaged Property as is not UCC Property or Real Property (such
property, together with the UCC Property, the "Personal Property").
5. The Financing Statements relating to the Mortgage[s] (a) are in
proper form under the applicable laws of the State for filing, (b) adequately
identify the collateral described therein to provide sufficient notice to third
parties of the security interest referenced therein and (c) are required to be
filed with the Office of the
3
Secretary of State of the State and with the Recorder of [and ]
County [Counties]. The Financing Statements relating to the Security Agreement
(a) are in proper form under the applicable laws of the State for filing, (b)
adequately identify the collateral described therein to provide sufficient
notice to third parties of the security interest referenced therein and (c) are
required to be filed with the Office of the Secretary of State of the State and
with the Recorder of [and ] County [Counties]. Upon the filing
of the Financing Statements, the Collateral Agent for the benefit of the
Creditors will have a valid and duly perfected security interest in and lien on
the Personal Property and Collateral (including after-acquired property)
described in the Mortgage[s] and the Security Agreement, respectively.
6. The recording of the Mortgage[s] and the filing of the Financing
Statements with the recorders and in the offices described above are the only
actions, recordings or filings necessary to publish notice and protect the
validity of and to establish of record the rights of the parties under the
Mortgage[s] and Security Agreement, except (i) that continuation statements
under the UCC are required to be filed within six months prior to the expiration
of five years from the date of filing of the Financing Statements, and (ii) that
a security interest in or pledge of money or instruments, other than money or
instruments constituting chattel paper, cannot be perfected by filing Financing
Statements or recording a Mortgage, but must be perfected by taking physical
possession thereof.
7. Subject to appropriate continuation or perfection under the UCC
as set forth the preceding paragraph, the priority of the security interest in,
lien on or pledge of the Collateral created by the Security Agreement and the
Pledge Agreement with respect to any extension of credit (each, a "Further
Advance") made or deemed to have been made by the Creditors after the date (the
"Perfection Date") on which the security interest in, lien on or pledge of the
Collateral shall have been perfected will be the same as the priority of the
security interest, lien on or pledge of the Collateral with respect to all
extensions of credit made or deemed to have been made by the Creditors on or
before the Perfection Date, and such priority will not be affected by the rights
in and to the Collateral of any third party whose interest in the Collateral
attached thereto after the Perfection Date but prior to the date of such Further
Advance.
8. The Collateral Agent has the power without naming all the
Creditors in any applicable legal proceeding to exercise remedies under the
Security Documents for the realization of any of the Mortgaged Property or the
Collateral in its own name, as collateral agent.
9. No taxes or other charges, including, without limitation,
intangible or documentary stamp taxes, mortgage or recording taxes, transfer
taxes or similar charges, are payable to the State or to any jurisdiction
therein on account of the execution or delivery or recording or filing of the
Mortgage[s] or any of the other Documents or the creation of the indebtedness
evidenced or secured by any of the Documents, as applicable, except for nominal
filing or recording fees.
[In the event that an intangible tax would be required to be paid in
connection with any of the transactions described in the preceding paragraph,
please describe with specificity in the context of this transaction, and the
collateral to be secured in your State, (a) the nature of the tax, (b) how and
when it is paid, (c) how it is calculated, (d) what forms or other documentation
would be required, and (e) any other information that would be necessary or
useful in order for the Borrower or any Guarantor to comply with the payment of
such tax. In the event that an intangible tax would not be required to be paid,
please specify that the intangible tax is inapplicable and the basis for such
conclusion.]
10. The transfer of all or any portion of the Mortgaged Property in
connection with the exercise of any remedy under the Mortgage[s], including,
without limitation, by way of judicial foreclosure, will not restrict, affect or
impair the liability of the Borrower and the other Loan Parties with respect to
the indebtedness secured thereby or the mortgagee's rights or remedies relating
thereto, including the foreclosure or enforcement of any other security interest
or liens securing such indebtedness, and the laws of the State do not require a
lienholder to elect to pursue its remedies either against mortgaged real
property or personal property where such lienholder holds security interests and
liens on both real and personal property of a debtor.
11. A State court or a federal court applying the choice of laws
principles prevailing under the laws of the State to which the question is
presented will give effect to the provisions in the Documents selecting
4
the laws of the State of New York as the governing law thereof (except as
therein provided) and will apply such laws, rather than the laws of the State,
to the construction and application thereof.
12. Assuming that the Documents were governed by the law of the State
for the purpose of rendering the opinion set forth in this paragraph, (a) none
of the provisions of the Documents will violate any law, statute or regulation
of the State relating to usury and (b) the use of counterpart copies of any of
the Documents does not affect the enforceability of any of the Documents.
We are admitted to practice in the State. We express no opinion as to
matters under or involving the laws of any jurisdiction other than laws of the
United States and the State and its political subdivisions.
This opinion may be relied upon by each of you, by any successors and
assigns of the Administrative Agent or the Collateral Agent, and any
participant, assignee or successor to the interests of the Lenders under the
Loan Documents.
Very truly yours,
SCHEDULE A
SUBSIDIARIES
[List all subsidiaries of the Borrower]
GUARANTEE AGREEMENT dated as of February 4, 1998, among
TRITON PCS HOLDINGS, INC., a Delaware corporation ("Holdings"),
each of the subsidiaries listed on Schedule I hereto (each such
subsidiary individually, a "Subsidiary" and, together with
Holdings, the "Guarantors") of TRITON PCS, INC., a Delaware
corporation (the "Borrower"), and THE CHASE MANHATTAN BANK, a
Delaware corporation, as collateral agent (the "Collateral
Agent") for the Secured Parties (as defined in the Credit
Agreement referred to below).
Reference is made to the Credit Agreement dated as of February 3, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Holdings, the Borrower, the lenders from time to time party
thereto (the "Lenders") and The Chase Manhattan Bank, as Administrative Agent
and Collateral Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower pursuant to, and upon
the terms and subject to the conditions specified in, the Credit Agreement. Each
of the Subsidiaries is a direct or indirect wholly owned Subsidiary of the
Borrower and acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders. Holdings owns all the capital stock of the
Borrower and acknowledges that it will derive substantial benefit from the
making of the Loans by the Lenders. The obligations of the Lenders to make Loans
are conditioned on, among other things, the execution and delivery by the
Guarantors of a Guarantee Agreement in the form hereof. As consideration
therefor and in order to induce the Lenders to make Loans, the Guarantors are
willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Loan Parities to the
Secured Parties under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents and (c) unless otherwise agreed upon in writing by the
applicable Lender party thereto, all obligations of the Borrower, monetary or
otherwise, under each Interest Rate Protection Agreement entered into with a
counterparty that was a Lender at the time such Interest Rate Protection
Agreement was entered into (all the monetary and other obligations referred to
in the preceding clauses (a) through (c) being collectively called the
"Obligations"). Each Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation.
Anything contained in this Agreement to the contrary notwithstanding, the
obligations of each Guarantor hereunder shall be limited to a maximum aggregate
amount equal to the greatest amount that would not render such Guarantor's
obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of Title 11 of the United States Code or any
provisions of applicable state law (collectively, the "Fraudulent Transfer
Laws"), in each case after giving effect to all other liabilities of such
Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (a) in respect of intercompany indebtedness to the Borrower or
Affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder and
(b) under any Guarantee of senior unsecured indebtedness or Indebtedness
subordinated in right of payment to the Obligations which Guarantee contains a
limitation as to maximum amount similar to that set forth in this paragraph,
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount)
2
and after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation, contribution, reimbursement, indemnity or similar rights of such
Guarantor pursuant to (i) applicable law or (ii) any agreement providing for an
equitable allocation among such Guarantor and other Affiliates of the Borrower
of obligations arising under Guarantees by such parties (including the
Indemnity, Subrogation and Contribution Agreement).
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Borrower of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment.
SECTION 3. Security. Each of the Guarantors authorizes the Collateral
Agent and each of the other Secured Parties, to (a) take and hold security for
the payment of this Guarantee and the Obligations and exchange, enforce, waive
and release any such security, (b) apply such security and direct the order or
manner of sale thereof as they in their sole discretion may determine and (c)
release or substitute any one or more endorsees, other guarantors of other
obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
the Collateral Agent or any other Secured Party in favor of the Borrower or any
other person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Collateral Agent or any other Secured
Party to assert any claim or demand or to enforce any remedy under the Credit
Agreement, any other Loan Document or any other agreement, by any waiver or
modification of any provision of any thereof, by any default, failure or delay,
wilful or otherwise, in the performance of the Obligations, or the failure to
perfect any security interest in, or the release of, any of the security held by
or on behalf of the Collateral Agent or any other Secured Party, or by any other
act or omission that may or might in any manner or to any extent vary the risk
of any Guarantor or that would otherwise operate as a discharge of each
Guarantor as a matter of law or equity (other than the indefeasible payment in
full in cash of all the Obligations).
SECTION 6. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each of the Guarantors waives any defense based on or arising
out of any defense of the Borrower or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower, other than the final and indefeasible payment in full
in cash of the Obligations. The Collateral Agent and the other Secured Parties
may, at their election, foreclose on any security held by one or more of them by
one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with the Borrower or any other
guarantor or exercise any other right or remedy available to them against the
Borrower or any other guarantor, without affecting or impairing in any way the
liability of any Guarantor hereunder except to the extent the Obligations have
been fully, finally and indefeasibly paid in cash.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
or such other Secured Party as designated thereby in cash the amount of such
unpaid Obligations. Upon payment by any Guarantor of any sums to the Collateral
Agent or any Secured Party as provided above, all rights of such Guarantor
against the Borrower arising as a result thereof by way of right of subrogation,
3
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment in
full in cash of all the Obligations. In addition, any indebtedness of the
Borrower now or hereafter held by any Guarantor is hereby subordinated in right
of payment to the prior payment in full of the Obligations during the existence
of an Event of Default. If any amount shall erroneously be paid to any Guarantor
on account of (i) such subrogation, contribution, reimbursement, indemnity or
similar right or (ii) any such indebtedness of the Borrower, such amount shall
be held in trust for the benefit of the Secured Parties and shall forthwith be
paid to the Collateral Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 8. Information. Each of the Guarantors assumes all responsibility
for being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Obligations and the nature, scope and extent of the risks that such
Guarantor assumes and incurs hereunder, and agrees that none of the Collateral
Agent or the other Secured Parties will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
SECTION 10. Termination. The Guarantees made hereunder (a) shall
terminate when all the Obligations have been indefeasibly paid in full and the
Lenders have no further commitment to lend under the Credit Agreement and (b)
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Secured Party or any Guarantor upon the bankruptcy
or reorganization of the Borrower, any Guarantor or otherwise.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Collateral Agent, and a counterpart
hereof shall have been executed on behalf of the Collateral Agent, and
thereafter shall be binding upon such Guarantor and the Collateral Agent and
their respective successors and assigns, and shall inure to the benefit of such
Guarantor, the Collateral Agent and the other Secured Parties, and their
respective successors and assigns, except that no Guarantor shall have the right
to assign its rights or obligations hereunder or any interest herein (and any
such attempted assignment shall be void). If all of the capital stock of a
Guarantor is sold, transferred or otherwise disposed of to a person that is not
an Affiliate of the Borrower pursuant to a transaction permitted by Section 6.06
of the Credit Agreement, such Guarantor shall be released from its obligations
under this Agreement without further action. This Agreement shall be construed
as a separate agreement with respect to each Guarantor and may be amended,
modified, supplemented, waived or released with respect to any Guarantor without
the approval of any other Guarantor and without affecting the obligations of any
other Guarantor hereunder.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties 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 this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice or demand in similar or other circumstances.
4
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Guarantors with respect to which such waiver, amendment or modification relates
and the Collateral Agent, with the prior written consent of the Required Lenders
(except as otherwise provided in the Credit Agreement).
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it in
care of the Borrower at the address set forth in the Credit Agreement.
SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any other fee or amount payable under this Agreement or any other
Loan Document is outstanding and unpaid and as long as the Commitments have not
been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in counterparts,
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract, and shall become effective as provided in
Section 11. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 17. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, 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 shall affect any right that the
Collateral Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any Guarantor or its properties in the courts of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that 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 the other Loan Documents in any
New York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
5
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 19. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. 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 AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
SECTION 20. Additional Guarantors. Pursuant to Section 5.12 of the Credit
Agreement, each Subsidiary Loan Party of the Borrower that was not in existence
or not a Subsidiary Loan Party on the date of the Credit Agreement is required
to enter into this Agreement as a Guarantor upon becoming a Subsidiary Loan
Party. Upon execution and delivery after the date hereof by the Collateral Agent
and such a Subsidiary of an instrument in the form of Annex 1, such Subsidiary
Loan Party shall become a Guarantor hereunder with the same force and effect as
if originally named as a Guarantor herein. The execution and delivery of any
instrument adding an additional Guarantor as a party to this Agreement shall not
require the consent of any other Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this Agreement.
SECTION 21. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Secured Party is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other Indebtedness at any time owing by such Secured Party to
or for the credit or the account of any Guarantor against any or all the
obligations of such Guarantor now or hereafter existing under this Agreement and
the other Loan Documents held by such Secured Party, irrespective of whether or
not such Secured Party shall have made any demand under this Agreement or any
other Loan Document and although such obligations
6
may be unmatured. The rights of each Secured Party under this Section 21 are in
addition to other rights and remedies (including other rights of setoff) which
such Secured Party may have.
SECTION 22. FCC Consent. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by any of the Collateral
Agent and the Secured Parties with respect to the Licenses or any license of the
Federal Communications Commission ("FCC") unless and until any required approval
under the Federal Communications Act of 1934, and any applicable rules and
regulations thereunder, requiring the consent to or approval of such action by
the FCC or any governmental or other authority, have been satisfied.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
TRITON PCS HOLDINGS, INC.,
By_______________________________________
Name:
Title:
TRITON MANAGEMENT COMPANY, INC.,
By_______________________________________
Name:
Title:
EACH OF THE OTHER SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
By: TRITON MANAGEMENT COMPANY, INC.,
its manager,
___________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
By_______________________________________
Name:
Title:
Schedule I to the
Guarantee Agreement
Subsidiary Guarantor Address
-------------------- -------
1. Triton Management Company, Inc. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
2. Triton PCS Holdings Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
3. Triton PCS Operating Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
4. Triton PCS License Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
5. Triton PCS Property Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
6. Triton PCS Equipment Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Annex 1 to the
Guarantee Agreement
SUPPLEMENT NO. [ ] dated as of , to the Guarantee
Agreement dated as of February , 1998, among TRITON PCS
HOLDINGS, INC., a Delaware corporation ("Holdings"), each of the
subsidiaries listed on Schedule I thereto (each such subsidiary
individually, a "Subsidiary" and, together with Holdings, the
"Guarantors") of TRITON PCS, INC., a Delaware corporation (the
"Borrower"), and THE CHASE MANHATTAN BANK, a Delaware
corporation, as collateral agent (the "Collateral Agent") for the
Secured Parties (as defined in the Credit Agreement referred to
below).
A. Reference is made to the Credit Agreement dated as of February ,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from time to time party
thereto (the "Lenders") and The Chase Manhattan Bank, as Administrative Agent
and Collateral Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guarantee Agreement and the
Credit Agreement.
C. The Guarantors have entered into the Guarantee Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.12 of the Credit
Agreement, each Subsidiary Loan Party of the Borrower that was not in existence
or not a Subsidiary Loan Party on the date of the Credit Agreement is required
to enter into the Guarantee Agreement as a Guarantor upon becoming a Subsidiary
Loan Party. Section 20 of the Guarantee Agreement provides that additional
Subsidiaries of the Borrower may become Guarantors under the Guarantee Agreement
by execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary of the Borrower (the "New Guarantor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Guarantor under the Guarantee Agreement in order to induce the Lenders to make
additional Loans and as consideration for Loans previously made.
Accordingly, the Collateral Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 20 of the Guarantee Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Guarantee
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guarantee Agreement applicable to it as a Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof
except for representations and warranties which by their terms refer to a
specific date. Each reference to a "Guarantor" in the Guarantee Agreement shall
be deemed to include the New Guarantor. The Guarantee Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, insolvency, 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. This Supplement may be executed in counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Collateral Agent shall have received counterparts of this Supplement that, when
taken together, bear the signatures of the New Guarantor and the Collateral
Agent. Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guarantee
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
2
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent for
its out-of-pocket expenses in connection with this Supplement, including the
fees, disbursements and other charges of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have duly
executed this Supplement to the Guarantee Agreement as of the day and year first
above written.
[NAME OF NEW GUARANTOR],
By_______________________________________
Name:
Title:
Address:
THE CHASE MANHATTAN BANK, as Collateral Agent,
By_______________________________________
Name:
Title:
PLEDGE AGREEMENT dated as of February 4, 1998, among TRITON
PCS, INC., a Delaware corporation (the "Borrower"), each Subsidiary of
the Borrower listed on Schedule I hereto (each such Subsidiary
individually a "Subsidiary Pledgor" and collectively, the "Subsidiary
Pledgors") TRITON PCS HOLDINGS, INC., a Delaware corporation
("Holdings"); the Borrower, the Subsidiary Pledgors and Holdings are
referred to collectively herein as the "Pledgors") and THE CHASE
MANHATTAN BANK, a Delaware corporation ("Chase"), as collateral agent
(in such capacity, the "Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
Reference is made to (a) the Credit Agreement dated as of February 3, 1998
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Holdings, the Borrower, the lenders from time to time party
thereto (the "Lenders") and Chase, as administrative agent for the Lenders and
Collateral Agent, and (b) the Guarantee Agreement dated as of February 4, 1998
(as amended, supplemented or otherwise modified from time to time, the
"Guarantee Agreement") among the Pledgors and the Collateral Agent.
The Lenders have agreed to make Loans to the Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit Agreement.
The Guarantors have agreed to guarantee, among other things, all the obligations
of the Borrower under the Credit Agreement. The obligations of the Lenders to
make Loans are conditioned upon, among other things, the execution and delivery
by the Pledgors of a Pledge Agreement in the form hereof to secure (a) the due
and punctual payment by the Borrower of (i) the principal of and premium, if
any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of the Borrower to the Secured
Parties under the Credit Agreement and the other Loan Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and liabilities
of the Borrower under or pursuant to the Credit Agreement and the other Loan
Documents, (c) the due and punctual payment and performance of all the
covenants, agreements, obligations and liabilities of each Subsidiary Pledgor
and of Holdings under or pursuant to the Guarantee Agreement or the other Loan
Documents and (d) the due and punctual payment and performance of all
obligations of the Borrower or any other Loan Party under each Hedging Agreement
entered into with any counterparty that was a Lender at the time such Hedging
Agreement was entered into (all the monetary and other obligations referred to
in the preceding clauses (a) through (d) being referred to collectively as the
"Obligations"). Capitalized terms used herein and not defined herein shall have
meanings assigned to such terms in the Credit Agreement.
Accordingly, the Pledgors and the Collateral Agent, on behalf of itself and
each Secured Party (and each of their respective successors or assigns), hereby
agree as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Pledgor hereby transfers, grants,
bargains, sells, conveys, hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its successors and assigns, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest in all of the Pledgor's right, title and
interest in, to and under (a) the shares of capital stock, membership interests
or other equity interests owned by it all of which are listed on Schedule II
hereto and any shares of capital stock, membership interests or other equity
interests obtained in the future by the Pledgor and the certificates
representing all such shares, membership interests or other equity interests
(the "Pledged Interests"); provided that the Pledged Interests shall not include
(i) more than 65% of the issued and outstanding shares of stock of any Foreign
Subsidiary or (ii) to the extent that applicable law requires that a Subsidiary
of the Pledgor issue directors' qualifying shares, such qualifying shares;
(b)(i) the debt securities owned by it all of which are listed opposite the name
of the Pledgor on Schedule II hereto, (ii) any debt securities in the future
issued to the Pledgor and (iii) the promissory notes and any other instruments
evidencing such debt securities (the "Pledged Debt Securities"); (c) all other
property that may be delivered to and held by the Collateral Agent pursuant to
the terms hereof; (d) subject to Section 5, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed, in respect of,
2
in exchange for or upon the conversion of the securities referred to in clauses
(a) and (b) above; (e) subject to Section 5, all rights and privileges of the
Pledgor with respect to the securities and other property referred to in clauses
(a), (b), (c) and (d) above; and (f) all proceeds of any of the foregoing (the
items referred to in clauses (a) through (f) above being collectively referred
to as the "Collateral"). Upon delivery to the Collateral Agent, (a) any stock
certificates, notes or other securities now or hereafter included in the
Collateral (the "Pledged Securities") shall be accompanied by stock powers duly
executed in blank or other instruments of transfer satisfactory to the
Collateral Agent and by such other instruments and documents as the Collateral
Agent may reasonably request and (b) all other property comprising part of the
Collateral shall be accompanied by proper instruments of assignment duly
executed by the applicable Pledgor and such other instruments or documents as
the Collateral Agent may reasonably request. Each delivery of Pledged Securities
shall be accompanied by a schedule describing the securities theretofore and
then being pledged hereunder, which schedule shall be attached hereto as
Schedule II and made a part hereof. Each schedule so delivered shall supersede
any prior schedules so delivered.
TO HAVE AND TO HOLD the Collateral, together with all right, title,
interest, powers, privileges and preferences pertaining or incidental thereto,
unto the Collateral Agent, its successors and assigns, for the ratable benefit
of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
(b) Each Pledgor will cause any Indebtedness for borrowed money owed to
the Pledgor by any person to be evidenced by a duly executed promissory note
that is pledged and delivered to the Collateral Agent pursuant to the terms
thereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor hereby
represents, warrants and covenants, as to itself and the Collateral pledged by
it hereunder, to and with the Collateral Agent that:
(a) the Pledged Stock represents that percentage as set forth on
Schedule II of the issued and outstanding shares of each class of the
capital stock of the issuer with respect thereto;
(b) except for the security interest granted hereunder, the Pledgor
(i) is and will at all times continue to be the direct owner, beneficially
and of record, of the Pledged Securities indicated on Schedule II, (ii)
holds the same free and clear of all Liens, except for Liens permitted by
clause (g) of the definition of "Permitted Encumbrances" in the Credit
Agreement, (iii) will make no assignment, pledge, hypothecation or transfer
of, or create or permit to exist any security interest in or other Lien on,
the Collateral, other than pursuant hereto, and (iv) subject to Section 5,
will cause any and all Collateral, whether for value paid by the Pledgor or
otherwise, to be forthwith deposited with the Collateral Agent and pledged
or assigned hereunder;
(c) the Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend
its title or interest thereto or therein against any and all Liens (other
than the Lien created by this Agreement), however arising, of all persons
whomsoever;
(d) no consent of any other person (including stockholders or
creditors of any Pledgor) and no consent or approval of any Governmental
Authority or any securities exchange was or is necessary to the validity of
the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of this
Agreement, when the Pledged Securities, certificates or other documents
representing or evidencing the Collateral are delivered to the Collateral
Agent in accordance with this Agreement, the Collateral Agent will obtain,
subject to clause (g) of the definition of "Permitted Encumbrances" in the
Credit Agreement, a valid and perfected first lien upon and security
interest in such Pledged Securities as security for the payment and
performance of the Obligations;
3
(f) the pledge effected hereby is effective to vest in the Collateral
Agent, on behalf of the Secured Parties, the rights of the Collateral Agent
in the Collateral as set forth herein;
(g) all of the Pledged Stock has been duly authorized and validly
issued and is fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged Stock is
accurate and complete in all material respects as of the date hereof; and
(i) the pledge of the Pledged Stock pursuant to this Agreement does
not violate Regulation G, T, U or X of the Federal Reserve Board or any
successor thereto as of the date hereof.
SECTION 4. Registration in Nominee Name; Denominations. The Collateral
Agent, on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent.
Each Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Pledgor. The Collateral Agent shall at all times
have the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms of
this Agreement, the Credit Agreement and the other Loan Documents;
provided, however, that such Pledgor will not be entitled to exercise any
such right if the result thereof could materially and adversely affect the
rights inuring to a holder of the Pledged Securities or the rights and
remedies of any of the Secured Parties under this Agreement or the Credit
Agreement or any other Loan Document or the ability of the Secured Parties
to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each Pledgor,
or cause to be executed and delivered to each Pledgor, all such proxies,
powers of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant to
subparagraph (i) above and to receive the cash dividends it is entitled to
receive pursuant to subparagraph (iii) below.
(iii) Each Pledgor shall be entitled to receive and retain any and all
cash dividends, interest and principal paid on the Pledged Securities to
the extent and only to the extent that such cash dividends, interest and
principal are permitted by, and otherwise paid in accordance with, the
terms and conditions of the Credit Agreement, the other Loan Documents and
applicable laws. All noncash dividends, interest and principal, and all
dividends, interest and principal paid or payable in cash or otherwise in
connection with a partial or total liquidation or dissolution, return of
capital, capital surplus or paid-in surplus, and all other distributions
(other than distributions referred to in the preceding sentence) made on or
in respect of the Pledged Securities, whether paid or payable in cash or
otherwise, whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or any
part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer
may be a party or otherwise, shall be and become part of the Collateral,
and, if received by any Pledgor, shall not be commingled by such Pledgor
with any of its other funds or property but shall be held separate and
apart therefrom, shall be held in trust for the benefit of the Collateral
Agent and shall be forthwith delivered to the Collateral Agent in the same
form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the
4
sole and exclusive right and authority to receive and retain such dividends,
interest or principal. All dividends, interest or principal received by the
Pledgor contrary to the provisions of this Section 5 shall be held in trust for
the benefit of the Collateral Agent, shall be segregated from other property or
funds of such Pledgor and shall be forthwith delivered to the Collateral Agent
upon demand in the same form as so received (with any necessary endorsement).
Any and all money and other property paid over to or received by the Collateral
Agent pursuant to the provisions of this paragraph (b) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon
receipt of such money or other property and shall be applied in accordance with
the provisions of Section 7. After all Events of Default have been cured or
waived, the Collateral Agent shall, within five Business Days after all such
Events of Default have been cured or waived, repay to each Pledgor all cash
dividends, interest or principal (without interest), that such Pledgor would
otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii)
above and which remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default,
all rights of any Pledgor to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section
5, and the obligations of the Collateral Agent under paragraph (a)(ii) of this
Section 5, shall cease, and all such rights shall thereupon become vested in the
Collateral Agent, which shall have the sole and exclusive right and authority
to exercise such voting and consensual rights and powers, provided that, unless
otherwise directed by the Required Lenders, the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Pledgors to exercise such rights. After all Events of
Default have been cured or waived, such Pledgor will have the right to exercise
the voting and consensual rights and powers that it would otherwise be entitled
to exercise pursuant to the terms of paragraph (a)(i) above.
SECTION 6. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Collateral Agent may sell the Collateral, or any part thereof,
at public or private sale or at any broker's board or on any securities
exchange, for cash, upon credit or for future delivery as the Collateral Agent
shall deem appropriate. The Collateral Agent shall be authorized at any such
sale (if it deems it advisable to do so) to restrict the prospective bidders or
purchasers to persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to the
distribution or sale thereof, and upon consummation of any such sale the
Collateral Agent shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof the Collateral so sold. Each such purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of any Pledgor, and, to the extent permitted by applicable
law, the Pledgors hereby waive all rights of redemption, stay, valuation and
appraisal any Pledgor now has or may at any time in the future have under any
rule of law or statute now existing or hereafter enacted.
The Collateral Agent shall give a Pledgor 10 days' prior written notice
(which each Pledgor agrees is reasonable notice within the meaning of Section 9-
504(3) of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions) of the Collateral Agent's intention to
make any sale of such Pledgor's Collateral. Such notice, in the case of a public
sale, shall state the time and place for such sale and, in the case of a sale at
a broker's board or on a securities exchange, shall state the board or exchange
at which such sale is to be made and the day on which the Collateral, or portion
thereof, will first be offered for sale at such board or exchange. Any such
public sale shall be held at such time or times within ordinary business hours
and at such place or places as the Collateral Agent may fix and state in the
notice of such sale. At any such sale, the Collateral, or portion thereof, to be
sold may be sold in one lot as an entirety or in separate parcels, as the
Collateral Agent may (in its sole and absolute discretion) determine. The
Collateral Agent shall not be obligated to make any sale of any Collateral if it
shall determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. The Collateral Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case any sale of all or any part of the
Collateral is made on credit or for future delivery, the Collateral so sold may
be retained by the Collateral Agent until the sale price is paid in full by the
purchaser or purchasers thereof, but the Collateral Agent shall not incur any
liability in case any such purchaser or purchasers shall fail to take up and pay
for the Collateral so sold and, in case of any such failure, such Collateral may
be sold again upon like notice. At any public (or, to the extent permitted by
applicable law, private) sale made pursuant to this Section 6, any Secured Party
may bid for or
5
purchase, free from any right of redemption, stay or appraisal on the part of
any Pledgor (all said rights being also hereby waived and released), the
Collateral or any part thereof offered for sale and may make payment on account
thereof by using any claim then due and payable to it from such Pledgor as a
credit against the purchase price, and it may, upon compliance with the terms of
sale, hold, retain and dispose of such property without further accountability
to such Pledgor therefor. For purposes hereof, (a) a written agreement to
purchase the Collateral or any portion thereof shall be treated as a sale
thereof, (b) the Collateral Agent shall be free to carry out such sale pursuant
to such agreement and (c) such Pledgor shall not be entitled to the return of
the Collateral or any portion thereof subject thereto, notwithstanding the fact
that after the Collateral Agent shall have entered into such an agreement all
Events of Default shall have been remedied and the Obligations paid in full. As
an alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to foreclose
upon the Collateral and to sell the Collateral or any portion thereof pursuant
to a judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 6 shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-504(3) of the Uniform Commercial
Code as in effect in the State of New York or its equivalent in other
jurisdictions.
SECTION 7. Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 6, as well as any Collateral consisting of cash,
shall be applied by the Collateral Agent as follows:
FIRST, to the payment of all costs and expenses incurred by the
Collateral Agent in connection with such sale or otherwise in connection
with this Agreement, any other Loan Document or any of the Obligations,
including all court costs and the reasonable fees and expenses of its
agents and legal counsel, the repayment of all advances made by the
Collateral Agent hereunder or under any other Loan Document on behalf of
any Pledgor and any other costs or expenses incurred in connection with the
exercise of any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in accordance
with the amounts of the Obligations owed to them on the date of any such
distribution); and
THIRD, to the Pledgors, their successors or assigns, or as a court of
competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of the Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 8. Reimbursement of Collateral Agent. (a) Each Pledgor agrees to
pay upon demand to the Collateral Agent the amount of any and all reasonable
expenses, including the reasonable fees, other charges and disbursements of its
counsel and of any experts or agents, that the Collateral Agent may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder or (iv) the failure by such Pledgor to perform or
observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the other
Loan Documents, each Pledgor agrees to indemnify the Collateral Agent and the
Indemnitees (as defined in Section 9.05 of the Credit Agreement) against, and
hold each Indemnitee harmless from, any and all losses, claims, damages,
liabilities and related expenses, including reasonable counsel fees, other
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties hereto
of their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby or (ii) any claim,
litigation,
6
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) Any amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 8 shall remain operative and in full force and effect regardless
of the termination of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Obligations, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan
Document or any investigation made by or on behalf of the Collateral Agent or
any other Secured Party. All amounts due under this Section 8 shall be payable
on written demand therefor and shall bear interest at the rate specified in
Section 2.11(c) of the Credit Agreement.
SECTION 9. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Collateral Agent's name or in the name of such Pledgor, to ask for, demand,
xxx for, collect, receive and give acquittance for any and all moneys due or to
become due under and by virtue of any Collateral, to endorse checks, drafts,
orders and other instruments for the payment of money payable to the Pledgor
representing any interest or dividend or other distribution payable in respect
of the Collateral or any part thereof or on account thereof and to give full
discharge for the same, to settle, compromise, prosecute or defend any action,
claim or proceeding with respect thereto, and to sell, assign, endorse, pledge,
transfer and to make any agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be construed as requiring
or obligating the Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
SECTION 10. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties 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 provisions of this Agreement or consent to any departure by any
Pledgor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Pledgor in any case shall entitle such Pledgor to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to a written agreement entered into between the
Collateral Agent and the Pledgor or Pledgors with respect to which such waiver,
amendment or modification is to apply, subject to any consent required in
accordance with Section 9.02 of the Credit Agreement.
SECTION 11. Securities Act, etc. In view of the position of the Pledgors
in relation to the Pledged Securities, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct
7
of the Collateral Agent if the Collateral Agent were to attempt to dispose of
all or any part of the Pledged Securities, and might also limit the extent to
which or the manner in which any subsequent transferee of any Pledged Securities
could dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Collateral Agent in any attempt to dispose of all or
part of the Pledged Securities under applicable Blue Sky or other state
securities laws or similar laws analogous in purpose or effect. Each Pledgor
recognizes that in light of such restrictions and limitations the Collateral
Agent may, with respect to any sale of the Pledged Securities, limit the
purchasers to those who will agree, among other things, to acquire such Pledged
Securities for their own account, for investment, and not with a view to the
distribution or resale thereof. Each Pledgor acknowledges and agrees that in
light of such restrictions and limitations, the Collateral Agent, in its sole
and absolute discretion, (a) may proceed to make such a sale whether or not a
registration statement for the purpose of registering such Pledged Securities or
part thereof shall have been filed under the Federal Securities Laws and (b) may
approach and negotiate with a single potential purchaser to effect such sale.
Each Pledgor acknowledges and agrees that any such sale might result in prices
and other terms less favorable to the seller than if such sale were a public
sale without such restrictions. In the event of any such sale, the Collateral
Agent shall incur no responsibility or liability for selling all or any part of
the Pledged Securities at a price that the Collateral Agent, in its sole and
absolute discretion, may in good xxxxx xxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might have
been realized if the sale were deferred until after registration as aforesaid or
if more than a single purchaser were approached. The provisions of this Section
11 will apply notwithstanding the existence of a public or private market upon
which the quotations or sales prices may exceed substantially the price at which
the Collateral Agent sells.
SECTION 12. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if for
any reason the Collateral Agent desires to sell any of the Pledged Securities of
the Borrower at a public sale, it will, at any time and from time to time, upon
the written request of the Collateral Agent, use its best efforts to take or to
cause the issuer of such Pledged Securities to take such action and prepare,
distribute and/or file such documents, as are required or advisable in the
reasonable opinion of counsel for the Collateral Agent to permit the public sale
of such Pledged Securities. Each Pledgor further agrees to indemnify, defend and
hold harmless the Collateral Agent, each other Secured Party, any underwriter
and their respective officers, directors, affiliates and controlling persons
from and against all loss, liability, expenses, costs of counsel (including,
without limitation, reasonable fees and expenses to the Collateral Agent of
legal counsel), and claims (including the costs of investigation) that they may
incur insofar as such loss, liability, expense or claim arises out of or is
based upon any alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto) or in any notification or
offering circular, or arises out of or is based upon any alleged omission to
state a material fact required to be stated therein or necessary to make the
statements in any thereof not misleading, except insofar as the same may have
been caused by any untrue statement or omission based upon information furnished
in writing to such Pledgor or the issuer of such Pledged Securities by the
Collateral Agent or any other Secured Party expressly for use therein. Each
Pledgor further agrees, upon such written request referred to above, to use its
best efforts to qualify, file or register, or cause the issuer of such Pledged
Securities to qualify, file or register, any of the Pledged Securities under the
Blue Sky or other securities laws of such states as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Pledgor will bear all costs and
expenses of carrying out its obligations under this Section 12. Each Pledgor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section 12 and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section 12 may be specifically enforced.
SECTION 13. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument relating to any of the foregoing,
(c) any exchange, release or nonperfection of any other collateral, or any
release or amendment or waiver of or consent to or departure from any guaranty,
for all or any of the Obligations or (d) any other circumstance that might
otherwise constitute a defense available to, or a discharge of, any Pledgor in
respect of the Obligations or in respect of this Agreement (other than the
indefeasible payment in full of all the
8
Obligations).
SECTION 14. Termination or Release. (a) This Agreement and the security
interests granted hereby shall terminate when all the Obligations have been
indefeasibly paid in full and the Lenders have no further commitment to lend
under the Credit Agreement.
(b) Upon any sale or other transfer by any Pledgor of any Collateral that
is permitted under the Credit Agreement to any person that is not a Pledgor, or,
upon the effectiveness of any written consent to the release of the security
interest granted hereby in any Collateral pursuant to Section 9.02(b) of the
Credit Agreement, the security interest in such Collateral shall be
automatically released.
(c) In connection with any termination or release pursuant to paragraph (a)
or (b), the Collateral Agent shall execute and deliver to any Pledgor, at such
Pledgor's expense, all documents that such Pledgor shall reasonably request to
evidence such termination or release. Any execution and delivery of documents
pursuant to this Section 14 shall be without recourse to or warranty by the
Collateral Agent.
SECTION 15. Notices. All communications and notices hereunder shall be in
writing and given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Subsidiary Pledgor shall be given to
it in care of the Borrower at the address set forth in the Credit Agreement.
SECTION 16. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Collateral Agent its rights and remedies
hereunder.
SECTION 17. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
no Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Loan Documents.
If all of the capital stock of a Pledgor is sold, transferred or otherwise
disposed of to a person that is not an Affiliate of the Borrower pursuant to a
transaction permitted by Section 6.06 of the Credit Agreement, such Pledgor
shall be released from its obligations under this Agreement without further
action. This Agreement shall be construed as a separate agreement with respect
to each Pledgor and may be amended, modified, supplemented, waived or released
with respect to any Pledgor without the approval of any other Pledgor and
without affecting the obligations of any other Pledgor hereunder.
SECTION 18. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by each Pledgor herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other Secured Parties and
shall survive the making by the Lenders of the Loans, regardless of any
investigation made by the Secured Parties or on their behalf, and shall continue
in full force and effect as long as the principal of or any accrued interest on
any Loan or any other fee or amount payable under this Agreement or any other
Loan Document is outstanding and unpaid and as long as the Commitments have not
been terminated.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
9
SECTION 19. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 20. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original, but all of
which, when taken together, shall constitute a single contract, and shall
become effective as provided in Section 17. Delivery of an executed
counterpart of a signature page to this Agreement by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 21. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to
this Agreement. Section headings used herein are for convenience of
reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting this
Agreement.
SECTION 22. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that, to the extent permitted
by applicable law, 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 shall affect
any right that the Collateral Agent or any other Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement
or the other Loan Documents against any Pledgor or its properties in the
courts of any jurisdiction.
(b) Each Pledgor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that 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 the other Loan
Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law,
the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 15. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 23. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. 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 24. Additional Pledgors. Pursuant to Section 5.12 of the
Credit Agreement, each Subsidiary of the Borrower that was not in existence
or not a Subsidiary on the date of the Credit Agreement is required to
enter in this Agreement as a Subsidiary Pledgor upon becoming a Subsidiary
if such Subsidiary owns or possesses property of a type that would be
considered Collateral hereunder. Upon execution and delivery by the
Collateral Agent and a Subsidiary of an instrument in the form of Annex 1,
such Subsidiary shall become a Subsidiary Pledgor hereunder with the same
force and effect as if originally named as a Subsidiary Pledgor herein.
The execution and delivery of such instrument shall not require the consent
of any Pledgor hereunder. The rights and obligations of each Pledgor
hereunder shall remain in full force and effect notwithstanding the
addition of any new Subsidiary Pledgor as a party to this Agreement.
10
SECTION 25. Execution of Financing Statements. Pursuant to Section
9-402 of the Uniform Commercial Code as in effect in the State of New York,
each Pledgor authorizes the Collateral Agent to file financing statements
with respect to the Collateral owned by it without the signature of such
Pledgor in such form and in such filing offices as the Collateral Agent
reasonably determines appropriate to perfect the security interests of the
Collateral Agent under this Agreement. A carbon, photographic or other
reproduction of this Agreement shall be sufficient as a financing statement
for filing in any jurisdiction.
SECTION 26. FCC Consent. Notwithstanding anything herein which may
be construed to the contrary, no action shall be taken by any of the
Collateral Agent and the Secured Parties with respect to the Pledged
Securities (including termination or suspension of voting rights) unless
and until any required approval under the Federal Communications Act of
1934, and any applicable rules and regulations thereunder, requiring the
consent to or approval of such action by the FCC or any governmental or
other authority, have been satisfied.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
TRITON PCS, INC.,
By _______________________________________
Name:
Title:
TRITON PCS HOLDINGS, INC.,
By _______________________________________
Name:
Title:
TRITON MANAGEMENT COMPANY, INC.,
By _______________________________________
Name:
Title:
EACH OF THE OTHER SUBSIDIARIES LISTED ON
SCHEDULE I HERETO,
By: TRITON MANAGEMENT COMPANY, INC.,
its manager,
__________________________________
Name:
Title:
11
THE CHASE MANHATTAN BANK, as Collateral
Agent,
By_______________________________________
Name:
Title:
Schedule I to the
Pledge Agreement
SUBSIDIARY PLEDGORS
Name Address
---- -------
1. Triton Management Company, Inc. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
2. Triton PCS Holdings Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
3. Triton PCS Operating Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
4. Triton PCS License Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
5. Triton PCS Property Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
6. Triton PCS Equipment Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Schedule II to the
Pledge Agreement
CAPITAL STOCK
Number of Registered Number and Percentage of
Issuer Certificates Owner Class of Shares Shares
------ ------------ ---------- --------------- --------
Triton PCS, Inc. 1 Triton PCS 100 shares of
Holdings, Inc. common stock 100%
Triton Management
Company, Inc. 2 Triton PCS, Inc. 100 shares of common stock 100%
LIMITED LIABILITY COMPANY MEMBERSHIP INTERESTS
Number Percentage of
Number of Registered and Class Membership
Issuer Certificates Owner of Interests of Interests
------ ------------- ---------- ------------ -------------
Triton PCS Holdings Company L.L.C. 1 Triton PCS, Inc. 100 units 100%
Triton PCS Operating Company L.L.C. 1 Triton PCS Holdings
Company L.L.C. 100 units 100%
Triton PCS License Company L.L.C. 1 Triton PCS Holdings
Company L.L.C. 100 units 100%
Triton PCS Property Company L.L.C. 1 Triton PCS Holdings
Company L.L.C. 100 units 100%
Triton PCS Equipment Company L.L.C. 1 Triton PCS Holdings
Company L.L.C. 100 units 100%
DEBT SECURITIES
None.
Annex 1 to the
Pledge Agreement
SUPPLEMENT NO. dated as of , to the PLEDGE AGREEMENT dated
as of February , 1998, among TRITON PCS, INC., a Delaware
corporation (the "Borrower") and each subsidiary of the
Borrower listed on Schedule I thereto (each such subsidiary
individually a "Subsidiary Pledgor" and collectively, the
"Subsidiary Pledgors" and TRITON PCS HOLDINGS, INC., a
Delaware corporation ("Holdings"); the Borrower, the
Subsidiary Pledgors and Holdings are referred to collectively
herein as the "Pledgors") and THE CHASE MANHATTAN BANK, a
Delaware corporation ("Chase"), as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below)
A. Reference is made to (a) the Credit Agreement dated as of February
, 1998 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto (the "Lenders") and Chase, as administrative agent for the
Lenders and Collateral Agent, and (b) the Guarantee Agreement dated as of
February , 1998 (as amended, supplemented or otherwise modified from time
to time, the "Guarantee Agreement") among the Pledgors and the Collateral
Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
C. The Pledgors have entered into the Pledge Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.12 of the Credit
Agreement, each Subsidiary of the Borrower that was not in existence or not
a Subsidiary on the date of the Credit Agreement is required to enter into
the Pledge Agreement as a Subsidiary Pledgor upon becoming a Subsidiary if
such Subsidiary owns or possesses property of a type that would be
considered Collateral under the Pledge Agreement. Section 24 of the Pledge
Agreement provides that such Subsidiaries may become Subsidiary Pledgors
under the Pledge Agreement by execution and delivery of an instrument in
the form of this Supplement. The undersigned Subsidiary (the "New
Pledgor") is executing this Supplement in accordance with the requirements
of the Credit Agreement to become a Subsidiary Pledgor under the Pledge
Agreement in order to induce the Lenders to make additional Loans and as
consideration for Loans previously made.
Accordingly, the Collateral Agent and the New Pledgor agree as follows:
SECTION 1. In accordance with Section 24 of the Pledge Agreement, the
New Pledgor by its signature below becomes a Pledgor under the Pledge
Agreement with the same force and effect as if originally named therein as
a Pledgor and the New Pledgor hereby agrees (a) to all the terms and
provisions of the Pledge Agreement applicable to it as a Pledgor thereunder
and (b) represents and warrants that the representations and warranties
made by it as a Pledgor thereunder are true and correct on and as of the
date hereof except for representations and warranties which by their terms
refer to a specific date. In furtherance of the foregoing, the New
Pledgor, as security for the payment and performance in full of the
Obligations (as defined in the Pledge Agreement), does hereby create and
grant to the Collateral Agent, its successors and assigns, for the benefit
of the Secured Parties, their successors and assigns, a security interest
in and lien on all of the New Pledgor's right, title and interest in and to
the Collateral (as defined in the Pledge Agreement) of the New Pledgor.
Each reference to a "Subsidiary Pledgor" or a "Pledgor" in the Pledge
Agreement shall be deemed to include the New Pledgor. The Pledge Agreement
is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Supplement shall become effective
when the Collateral Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New
Pledgor and the Collateral Agent. Delivery of an executed signature
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page to this Supplement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all
its Pledged Securities.
SECTION 5. Except as expressly supplemented hereby, the Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable, but
the validity, legality and enforceability of the remaining provisions
contained herein and in the Pledge Agreement shall not in any way be
affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 15 of the Pledge Agreement. All
communications and notices hereunder to the New Pledgor shall be given to
it in care of the Borrower as set forth in the Credit Agreement.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel
for the Collateral Agent.
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent have duly
executed this Supplement to the Pledge Agreement as of the day and year
first above written.
[NAME OF NEW PLEDGOR],
By_______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral Agent,
By_______________________________________
Name:
Title:
Schedule I to
Supplement No. [ ]
to the Pledge Agreement
Pledged Securities of the New Pledgor
-------------------------------------
CAPITAL STOCK OR OTHER EQUITY INTEREST
Number and Percentage of
Class of Shares Shares
Number of Registered or Other or Other
Issuer Certificate Owner Equity Interest Equity Interest
------ ---------- ---------- --------------- ---------------
DEBT SECURITIES
Principal
Issuer Amount Date of Note Maturity Date
------ --------- ------------ -------------
SECURITY AGREEMENT dated as of February 4, 1998, among
Triton PCS, Inc., a Delaware corporation (the "Borrower"),
TRITON PCS HOLDINGS, INC., a Delaware corporation
("Holdings"), each subsidiary of the Borrower listed on
Schedule I hereto (each such subsidiary individually a
"Subsidiary" and, together with Holdings, the "Guarantors";
the Guarantors and the Borrower are referred to collectively
herein as the "Grantors") and THE CHASE MANHATTAN BANK, a
Delaware corporation ("Chase"), as collateral agent (in such
capacity, the "Collateral Agent") for the Secured Parties
(as defined herein).
Reference is made to (a) the Credit Agreement dated as of February 3,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Holdings, the Borrower, the lenders from time to
time party thereto (the "Lenders") and Chase, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent") and Collateral
Agent and (b) the Guarantee Agreement dated as of February , 1998 (as
amended, supplemented or otherwise modified from time to time, the
"Guarantee Agreement"), among the Guarantors and the Collateral Agent.
The Lenders have agreed to make Loans to the Borrower, pursuant to,
and upon the terms and subject to the conditions specified in, the Credit
Agreement. Each of the Guarantors has agreed to guarantee, among other
things, all the obligations of the Borrower under the Credit Agreement.
The obligations of the Lenders to make Loans are conditioned upon, among
other things, the execution and delivery by the Grantors of an agreement in
the form hereof to secure (a) the due and punctual payment by the Borrower
of (i) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations, including fees, costs,
expenses and indemnities, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding),
of the Borrower to the Secured Parties under the Credit Agreement and the
other Loan Documents, (b) the due and punctual performance of all
covenants, agreements, obligations and liabilities of the Borrower under or
pursuant to the Credit Agreement and the other Loan Documents, (c) the due
and punctual payment and performance of all the covenants, agreements,
obligations and liabilities of each Loan Party under or pursuant to this
Agreement and the other Loan Documents and (d) the due and punctual payment
and performance of all obligations of the Borrower or any Loan Party under
each Hedging Agreement entered into with any counterparty that was a Lender
at the time such Hedging Agreement was entered into (all the monetary and
other obligations described in the preceding clauses (a) through (d) being
collectively called the "Obligations").
Accordingly, the Grantors and the Collateral Agent, on behalf of
itself and each Secured Party (and each of their respective successors or
assigns), hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Definition of Terms Used Herein. Unless the context
otherwise requires, all capitalized terms used but not defined herein shall
have the meanings set forth in the Credit Agreement.
SECTION 1.02. Definition of Certain Terms Used Herein. As used
herein, the following terms shall have the following meanings:
"Account Debtor" shall mean any person who is or who may become
obligated to any Grantor under, with respect to or on account of an
Account.
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"Accounts" shall mean any and all right, title and interest of any
Grantor to payment for goods and services sold or leased, including any
such right evidenced by chattel paper, whether due or to become due,
whether or not it has been earned by performance, and whether now or
hereafter acquired or arising in the future, including accounts receivable
from Affiliates of the Grantors.
"Accounts Receivable" shall mean all Accounts and all right, title and
interest in any returned goods, together with all rights, titles,
securities and guarantees with respect thereto, including any rights to
stoppage in transit, replevin, reclamation and resales, and all related
security interests, liens and pledges, whether voluntary or involuntary, in
each case whether now existing or owned or hereafter arising or acquired.
"Collateral" shall mean all (a) Accounts Receivable, (b) Documents,
(c) Equipment, (d) General Intangibles, (e) Inventory, (f) cash and cash
accounts, (g) Investment Property and (h) Proceeds.
"Commodity Account" shall mean an account maintained by a Commodity
Intermediary in which a Commodity Contract is carried out for a Commodity
Customer.
"Commodity Contract" shall mean a commodity futures contract, an
option on a commodity futures contract, a commodity option or any other
contract that, in each case, is (a) traded on or subject to the rules of a
board of trade that has been designated as a contract market for such a
contract pursuant to the federal commodities laws or (b) traded on a
foreign commodity board of trade, exchange or market, and is carried on the
books of a Commodity Intermediary for a Commodity Customer.
"Commodity Customer" shall mean a person for whom a Commodity
Intermediary carries a Commodity Contract on its books.
"Commodity Intermediary" shall mean (a) a person who is registered as
a futures commission merchant under the federal commodities laws or (b) a
person who in the ordinary course of its business provides clearance or
settlement services for a board of trade that has been designated as a
contract market pursuant to federal commodities laws.
"Copyright License" shall mean any written agreement, now or hereafter
in effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the
right to license, or granting any right to such Grantor under any Copyright
now or hereafter owned by any third party, and all rights of such Grantor
under any such agreement.
"Copyrights" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all copyright rights in any work subject to
the copyright laws of the United States or any other country, whether as
author, assignee, transferee or otherwise, and (b) all registrations and
applications for registration of any such copyright in the United States or
any other country, including registrations, recordings, supplemental
registrations and pending applications for registration in the United
States Copyright Office, including those listed on Schedule II.
"Credit Agreement" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Documents" shall mean all instruments, files, records, ledger sheets
and documents covering or relating to any of the Collateral.
"Entitlement Holder" shall mean a person identified in the records of
a Securities Intermediary as the person having a Security Entitlement
against the Securities Intermediary. If a person acquires a Security
Entitlement by virtue of Section 8-501(b)(2) or (3) of the Uniform
Commercial Code, such person is the Entitlement Holder.
"Equipment" shall mean all equipment, furniture and furnishings, and
all tangible personal property similar to any of the foregoing, including
tools, parts and supplies of every kind and description, and all
improvements, accessions or appurtenances thereto, that are now or
hereafter owned by any Grantor. The term
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Equipment shall include Fixtures.
"Financial Asset" shall mean (a) a Security, (b) an obligation of a
person or a share, participation or other interest in a person or in
property or an enterprise of a person, which is, or is of a type, dealt
with in or traded on financial markets, or which is recognized in any area
in which it is issued or dealt in as a medium for investment or (c) any
property that is held by a Securities Intermediary for another person in a
Securities Account if the Securities Intermediary has expressly agreed with
the other person that the property is to be treated as a Financial Asset
under Article 8 of the Uniform Commercial Code. As the context requires,
the term Financial Asset shall mean either the interest itself or the means
by which a person's claim to it is evidenced, including a certificated or
uncertificated Security, a certificate representing a Security or a
Security Entitlement.
"Fixtures" shall mean all items of Equipment, whether now owned or
hereafter acquired, of any Grantor that become so related to particular
real estate that an interest in them arises under any real estate law
applicable thereto.
"General Intangibles" shall mean all choses in action and causes of
action and all other assignable intangible personal property of any Grantor
of every kind and nature (other than Accounts Receivable) now owned or
hereafter acquired by any Grantor, including corporate or other business
records, indemnification claims, contract rights (including rights under
leases, whether entered into as lessor or lessee, Hedging Agreements and
other agreements), Intellectual Property, goodwill, registrations,
franchises, tax refund claims and any letter of credit, guarantee, claim,
security interest or other security held by or granted to any Grantor to
secure payment by an Account Debtor of any of the Accounts Receivable.
"Intellectual Property" shall mean all intellectual and similar
property of any Grantor of every kind and nature now owned or hereafter
acquired by any Grantor, including inventions, designs, Patents,
Copyrights, Licenses, Trademarks, trade secrets, confidential or
proprietary technical and business information, know-how, show-how or other
data or information, software and databases and all embodiments or
fixations thereof and related documentation, registrations and franchises,
and all additions, improvements and accessions to, and books and records
describing or used in connection with, any of the foregoing.
"Inventory" shall mean all goods of any Grantor, whether now owned or
hereafter acquired, held for sale or lease, or furnished or to be furnished
by any Grantor under contracts of service, or consumed in any Grantor's
business, including raw materials, intermediates, work in process,
packaging materials, finished goods, semi-finished inventory, scrap
inventory, manufacturing supplies and spare parts, and all such goods that
have been returned to or repossessed by or on behalf of any Grantor.
"Investment Property" shall mean all Securities (whether certificated
or uncertificated), Security Entitlements, Securities Accounts, Commodity
Contracts and Commodity Accounts of any Grantor, whether now owned or
hereafter acquired by any Grantor.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including those listed on Schedule III (other than those license agreements
in existence on the date hereof and listed on Schedule III and those
license agreements entered into after the date hereof, which by their terms
prohibit assignment or a grant of a security interest by such Grantor as
licensee thereunder).
"Obligations" shall have the meaning assigned to such term in the
preliminary statement of this Agreement.
"Patent License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any
invention on which a Patent, now or hereafter owned by any Grantor or which
any Grantor otherwise has the right to license, is in existence, or
granting to any Grantor any right to make, use or sell any invention on
which a Patent, now or hereafter owned by any third party, is in existence,
and all rights of any Grantor under any such agreement.
"Patents" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all
4
letters patent of the United States or any other country, all registrations
and recordings thereof, and all applications for letters patent of the
United States or any other country, including registrations, recordings and
pending applications in the United States Patent and Trademark Office or
any similar offices in any other country, including those listed on
Schedule IV, and (b) all reissues, continuations, divisions, continuations-
in-part, renewals or extensions thereof, and the inventions disclosed or
claimed therein, including the right to make, use and/or sell the
inventions disclosed or claimed therein.
"Perfection Certificate" shall mean a certificate substantially in the
form of Annex 2 hereto, completed and supplemented with the schedules and
attachments contemplated thereby, and duly executed by a Financial Officer
of the Borrower.
"Proceeds" shall mean any consideration received from the sale,
exchange, license, lease or other disposition of any asset or property that
constitutes Collateral, any value received as a consequence of the
possession of any Collateral and any payment received from any insurer or
other person or entity as a result of the destruction, loss, theft, damage
or other involuntary conversion of whatever nature of any asset or property
which constitutes Collateral, and shall include , (a) any claim of any
Grantor against any third party for (and the right to xxx and recover for
and the rights to damages or profits due or accrued arising out of or in
connection with) (i) past, present or future infringement of any Patent now
or hereafter owned by any Grantor, or licensed under a Patent License, (ii)
past, present or future infringement or dilution of any Trademark now or
hereafter owned by any Grantor or licensed under a Trademark License or
injury to the goodwill associated with or symbolized by any Trademark now
or hereafter owned by any Grantor, (iii) past, present or future breach of
any License and (iv) past, present or future infringement of any Copyright
now or hereafter owned by any Grantor or licensed under a Copyright License
and (b) any and all other amounts from time to time paid or payable under
or in connection with any of the Collateral.
"Secured Parties" shall mean (a) the Lenders, (b) the Administrative
Agent, (c) the Collateral Agent, (d) each counterparty to an Hedging
Agreement entered into with the Borrower or any Loan Party if such
counterparty was a Lender at the time the Hedging Agreement was entered
into, (e) the beneficiaries of each indemnification obligation undertaken
by any Grantor under any Loan Document and (f) the successors and assigns
of each of the foregoing.
"Securities" shall mean any obligations of an issuer or any shares,
participations or other interests in an issuer or in property or an
enterprise of an issuer which (a) are represented by a certificate
representing a security in bearer or registered form, or the transfer of
which may be registered upon books maintained for that purpose by or on
behalf of the issuer, (b) are one of a class or series or by its terms is
divisible into a class or series of shares, participations, interests or
obligations and (c)(i) are, or are of a type, dealt with or trade on
securities exchanges or securities markets or (ii) are a medium for
investment and by their terms expressly provide that they are a security
governed by Article 8 of the Uniform Commercial Code.
"Securities Account" shall mean an account to which a Financial Asset
is or may be credited in accordance with an agreement under which the
person maintaining the account undertakes to treat the person for whom the
account is maintained as entitled to exercise rights that comprise the
Financial Asset.
"Security Entitlements" shall mean the rights and property interests
of an Entitlement Holder with respect to a Financial Asset.
"Security Interest" shall have the meaning assigned to such term in
Section 2.01.
"Security Intermediary" shall mean (a) a clearing corporation or (b) a
person, including a bank or broker, that in the ordinary course of its
business maintains securities accounts for others and is acting in that
capacity.
"Trademark License" shall mean any written agreement, now or hereafter
in effect, granting to any third party any right to use any Trademark now
or hereafter owned by any Grantor or which any Grantor otherwise has the
right to license, or granting to any Grantor any right to use any Trademark
now or hereafter owned by any third party, and all rights of any Grantor
under any such agreement.
5
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names,
trade styles, trade dress, logos, other source or business identifiers,
designs and general intangibles of like nature, now existing or hereafter
adopted or acquired, all registrations and recordings thereof, and all
registration and recording applications filed in connection therewith,
including registrations and registration applications in the United States
Patent and Trademark Office, any State of the United States or any similar
offices in any other country or any political subdivision thereof, and all
extensions or renewals thereof, including those listed on Schedule V, (b)
all goodwill associated therewith or symbolized thereby and (c) all other
assets, rights and interests that uniquely reflect or embody such goodwill.
SECTION 1.03. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to
this Agreement.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor
hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, and hereby grants
to the Collateral Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, a security interest in, all of such
Grantor's right, title and interest in, to and under the Collateral (the
"Security Interest"). Without limiting the foregoing, the Collateral Agent
is hereby authorized to file one or more financing statements (including
fixture filings), continuation statements, filings with the United States
Patent and Trademark Office or United States Copyright Office (or any
successor office or any similar office in any other country) or other
documents for the purpose of perfecting, confirming, continuing, enforcing
or protecting the Security Interest granted by each Grantor, without the
signature of any Grantor, and naming any Grantor or the Grantors as debtors
and the Collateral Agent as secured party.
SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any
other Secured Party to, or in any way alter or modify, any obligation or
liability of any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the
Collateral Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid
rights in and title to the Collateral with respect to which it has
purported to grant a Security Interest hereunder and has full power and
authority to grant to the Collateral Agent the Security Interest in such
Collateral pursuant hereto and to execute, deliver and perform its
obligations in accordance with the terms of this Agreement, without the
consent or approval of any other person other than any consent or approval
which has been obtained.
SECTION 3.02. Filings. (a) The Perfection Certificate has been duly
prepared, completed and executed and the information set forth therein is
correct and complete. Fully executed Uniform Commercial Code financing
statements (including fixture filings, as applicable) or other appropriate
filings, recordings or registrations containing a description of the
Collateral have been delivered to the Collateral Agent for filing in each
governmental, municipal or other office specified in Schedule 6 to the
Perfection Certificate, which are all the filings, recordings and
registrations (other than filings required to be made in the United States
Patent and Trademark Office and the United States Copyright Office in order
to perfect the Security Interest in Collateral consisting of United States
Patents, Trademarks and Copyrights) that are necessary to publish notice of
and protect the validity of and to establish a legal, valid and perfected
security interest in favor of
6
the Collateral Agent (for the ratable benefit of the Secured Parties) in
respect of all Collateral in which the Security Interest may be perfected
by filing, recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided
under applicable law with respect to the filing of continuation statements.
(b) Each Grantor represents and warrants that fully executed security
agreements in the form hereof and containing a description of all
Collateral consisting of Intellectual Property with respect to United
States Patents and United States registered Trademarks (and Trademarks for
which United States registration applications are pending) and United
States registered Copyrights have been delivered to the Collateral Agent
for recording by the United States Patent and Trademark Office and the
United States Copyright Office pursuant to 35 U.S.C. (S) 261, 15 U.S.C. (S)
1060 or 17 U.S.C. (S) 205 and the regulations thereunder, as applicable,
and otherwise as may be required pursuant to the laws of any other
necessary jurisdiction, to protect the validity of and to establish a
legal, valid and perfected security interest in favor of the Collateral
Agent (for the ratable benefit of the Secured Parties) in respect of all
Collateral consisting of Patents, Trademarks and Copyrights in which a
security interest may be perfected by filing, recording or registration in
the United States (or any political subdivision thereof) and its
territories and possessions, or in any other necessary jurisdiction, and no
further or subsequent filing, refiling, recording, rerecording,
registration or reregistration is necessary (other than such actions as are
necessary to perfect the Security Interest with respect to any Collateral
consisting of Patents, Trademarks and Copyrights (or registration or
application for registration thereof) acquired or developed after the date
hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in
all Collateral in which a security interest may be perfected by filing,
recording or registering a financing statement or analogous document in the
United States (or any political subdivision thereof) and its territories
and possessions pursuant to the Uniform Commercial Code or other applicable
law in such jurisdictions and (c) a security interest that shall be
perfected in all Collateral in which a security interest may be perfected
upon the receipt and recording of this Agreement with the United States
Patent and Trademark Office and the United States Copyright Office, as
applicable[, within the three month period (commencing as of the date
hereof) pursuant to 35 U.S.C. (S) 261 or 15 U.S.C. (S) 1060 or the one
month period (commencing as of the date hereof) pursuant to 17 U.S.C. (S)
205 and otherwise as may be required pursuant to the laws of any other
necessary jurisdiction]. The Security Interest is and shall be prior to any
other Lien on any of the Collateral, other than Liens expressly permitted
to be prior to the Security Interest pursuant to Section 6.02 of the Credit
Agreement.
SECTION 3.04. Absence of Other Liens. The Collateral is owned by the
Grantors free and clear of any Lien, except for Liens expressly permitted
pursuant to Section 6.02 of the Credit Agreement. The Grantor has not filed
or consented to the filing of (a) any financing statement or analogous
document under the Uniform Commercial Code or any other applicable laws
covering any Collateral, (b) any assignment in which any Grantor assigns
any Collateral or any security agreement or similar instrument covering any
Collateral with the United States Patent and Trademark Office or the United
States Copyright Office or (c) any assignment in which any Grantor assigns
any Collateral or any security agreement or similar instrument covering any
Collateral with any foreign governmental, municipal or other office, which
financing statement or analogous document, assignment, security agreement
or similar instrument is still in effect, except, in each case, for Liens
expressly permitted pursuant to Section 6.02 of the Credit Agreement.
ARTICLE IV
Covenants
SECTION 4.01. Change of Name; Location of Collateral; Records; Place
of Business. (a) Each Grantor agrees promptly to notify the Collateral
Agent in writing of any change (i) in its 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 its chief executive office, its
principal place of business, any office in which it maintains books or
records relating to Collateral owned by it or any office or facility at
which Collateral owned by it is located
7
(including the establishment of any such new office or facility), (iii) in
its identity or corporate structure or (iv) in its Federal Taxpayer
Identification Number. Each Grantor 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 first priority security
interest in all the Collateral. Each Grantor agrees promptly to notify the
Collateral Agent if any material portion of the Collateral owned or held by
such Grantor is damaged or destroyed.
(b) Each Grantor agrees to maintain, at its own cost and expense,
such complete and accurate records with respect to the Collateral owned by
it as is consistent with its current practices and in accordance with such
prudent and standard practices used in industries that are the same as or
similar to those in which such Grantor is engaged, but in any event to
include complete accounting records indicating all payments and proceeds
received with respect to any part of the Collateral, and, at such time or
times as the Collateral Agent may reasonably request, promptly to prepare
and deliver to the Collateral Agent a duly certified schedule or schedules
in form and detail satisfactory to the Collateral Agent showing the
identity, amount and location of any and all Collateral.
SECTION 4.02. Periodic Certification. Each year, at the time of
delivery of annual financial statements with respect to the preceding
fiscal year pursuant to Section 5.01 of the Credit Agreement, the Borrower
shall deliver to the Collateral Agent a certificate executed by a Financial
Officer of the Borrower (a) 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 such certificate or
the date of the most recent certificate delivered pursuant to Section 4.02
and (b) certifying that all Uniform Commercial Code financing statements
(including fixture filings, as applicable) or other appropriate filings,
recordings or registrations, including all refilings, rerecordings and
reregistrations, containing a description of the Collateral have been filed
of record in each governmental, municipal or other appropriate office in
each jurisdiction identified pursuant to clause (a) above to the extent
necessary to protect and perfect the Security Interest 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). Each certificate delivered pursuant to this Section 4.02 shall
identify in the format of Schedule II, III, IV or V, as applicable, all
Intellectual Property of any Grantor in existence on the date thereof and
not then listed on such Schedules or previously so identified to the
Collateral Agent.
SECTION 4.03. Protection of Security. Each Grantor shall, at
its own cost and expense, take any and all actions necessary to defend
title to the Collateral against all persons and to defend the Security
Interest of the Collateral Agent in the Collateral and the priority thereof
against any Lien not expressly permitted pursuant to Section 6.02 of the
Credit Agreement.
SECTION 4.04. Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all
such further instruments and documents and take all such actions as the
Collateral Agent may from time to time request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies
created hereby, including the payment of any fees and taxes required in
connection with the execution and delivery of this Agreement, the granting
of the Security Interest and the filing of any financing statements
(including fixture filings) or other documents in connection herewith or
therewith. If any amount payable under or in connection with any of the
Collateral shall be or become evidenced by any promissory note or other
instrument, such note or instrument shall be immediately pledged and
delivered to the Collateral Agent, duly endorsed in a manner satisfactory
to the Collateral Agent.
Without limiting the generality of the foregoing, each Grantor
hereby authorizes the Collateral Agent, with prompt notice thereof to the
Grantors, to supplement this Agreement by supplementing Schedule II, III,
IV or V hereto or adding additional schedules hereto to specifically
identify any asset or item that may constitute Copyrights, Licenses,
Patents or Trademarks; provided, however, that any Grantor shall have the
right, exercisable within 10 days after it has been notified by the
Collateral Agent of the specific identification of such Collateral, to
advise the Collateral Agent in writing of any inaccuracy of the
representations and warranties made by such Grantor hereunder with respect
to such Collateral. Each Grantor agrees that it will use its best efforts
to take such action as shall be necessary in order that all representations
and warranties hereunder shall be true and correct with respect to such
Collateral within 30 days after the date it has been
8
notified by the Collateral Agent of the specific identification of such
Collateral.
SECTION 4.05. Inspection and Verification. The Collateral Agent
and such persons as the Collateral Agent may reasonably designate shall
have the right, at the Grantors' own cost and expense, to inspect the
Collateral, all records related thereto (and to make extracts and copies
from such records) and the premises upon which any of the Collateral is
located, to discuss the Grantors' affairs with the officers of the Grantors
and their independent accountants and to verify under reasonable procedures
the validity, amount, quality, quantity, value, condition and status of, or
any other matter relating to, the Collateral, including, in the case of
Accounts or Collateral in the possession of any third person, by contacting
Account Debtors in the event of and during the continuance of an Event of
Default or the third person possessing such Collateral for the purpose of
making such a verification. The Collateral Agent shall have the absolute
right to share any information it gains from such inspection or
verification with any Secured Party (it being understood that any such
information shall be deemed to be "Information" subject to the provisions
of Section 9.16).
SECTION 4.06. Taxes; Encumbrances. At its option, the
Collateral Agent may discharge past due taxes, assessments, charges, fees,
Liens, security interests or other encumbrances at any time levied or
placed on the Collateral and not permitted pursuant to Section 6.02 of the
Credit Agreement, and may pay for the maintenance and preservation of the
Collateral to the extent any Grantor fails to do so as required by the
Credit Agreement or this Agreement, and each Grantor jointly and severally
agrees to reimburse the Collateral Agent on demand for any payment made or
any expense incurred by the Collateral Agent pursuant to the foregoing
authorization; provided, however, that nothing in this Section 4.06 shall
be interpreted as excusing any Grantor from the performance of, or imposing
any obligation on the Collateral Agent or any Secured Party to cure or
perform, any covenants or other promises of any Grantor with respect to
taxes, assessments, charges, fees, liens, security interests or other
encumbrances and maintenance as set forth herein or in the other Loan
Documents.
SECTION 4.07. Assignment of Security Interest. If at any time
any Grantor shall take a security interest in any property of an Account
Debtor or any other person to secure payment and performance of an Account
to the extent permissible under the document granting a security interest,
such Grantor shall promptly assign such security interest to the Collateral
Agent. Such assignment need not be filed of public record unless necessary
to continue the perfected status of the security interest against creditors
of and transferees from the Account Debtor or other person granting the
security interest.
SECTION 4.08. Continuing Obligations of the Grantors. Each
Grantor shall remain liable to observe and perform all the conditions and
obligations to be observed and performed by it under each contract,
agreement or instrument relating to the Collateral, all in accordance with
the terms and conditions thereof, and each Grantor jointly and severally
agrees to indemnify and hold harmless the Collateral Agent and the Secured
Parties from and against any and all liability for such performance.
SECTION 4.09. Use and Disposition of Collateral. None of the
Grantors shall make or permit to be made an assignment, pledge or
hypothecation of the Collateral or shall grant any other Lien in respect of
the Collateral, except as expressly permitted by Section 6.02 of the Credit
Agreement. None of the Grantors shall make or permit to be made any
transfer of the Collateral and each Grantor shall remain at all times in
posses sion of the Collateral owned by it, except that (a) Inventory may be
sold in the ordinary course of business and (b) unless and until the
Collateral Agent shall notify the Grantors that an Event of Default shall
have occurred and be continuing and that during the continuance thereof the
Grantors shall not sell, convey, lease, assign, transfer or otherwise
dispose of any Collateral (which notice may be given by telephone if
promptly confirmed in writing), the Grantors may use and dispose of the
Collateral in any lawful manner not inconsistent with the provisions of
this Agreement, the Credit Agreement or any other Loan Document. Without
limiting the generality of the foregoing, each Grantor agrees that it shall
not permit any Inventory to be in the possession or control of any
warehouseman, bailee, agent or processor at any time unless such
warehouseman, bailee, agent or processor shall have been notified of the
Security Interest and shall have agreed in writing to hold the Inventory
subject to the Security Interest and the instructions of the Collateral
Agent and to waive and release any Lien held by it with respect to such
Inventory, whether arising by operation of law or otherwise.
SECTION 4.10. Limitation on Modification of Accounts. None of
the Grantors will, without the Collateral Agent's prior written consent,
grant any extension of the time of payment of any of the Accounts
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Receivable, compromise, compound or settle the same for less than the full
amount thereof, release, wholly or partly, any person liable for the
payment thereof or allow any credit or discount whatsoever thereon, other
than extensions, credits, discounts, compromises or settlements granted or
made in the ordinary course of business and consistent with its current
practices and in accordance with such prudent and standard practices used
in industries that are the same as or similar to those in which such
Grantor is engaged.
SECTION 4.11. Insurance. The Grantors, at their own expense,
shall maintain or cause to be maintained insurance covering physical loss
or damage to the Inventory and Equipment in accordance with Section 5.07
of the Credit Agreement. Each Grantor irrevocably makes, constitutes and
appoints the Collateral Agent (and all officers, employees or agents
designated by the Collateral Agent) as such Grantor's true and lawful agent
(and attorney-in-fact) for the purpose, during the continuance of an Event
of Default, of making, settling and adjusting claims in respect of
Collateral under policies of insurance, endorsing the name of such Grantor
on any check, draft, instrument or other item of payment for the proceeds
of such policies of insurance and for making all determinations and
decisions with respect thereto. In the event that any Grantor at any time
or times shall fail to obtain or maintain any of the policies of insurance
required hereby or to pay any premium in whole or part relating thereto,
the Collateral Agent may, without waiving or releasing any obligation or
liability of the Grantors hereunder or any Event of Default, in its sole
discretion, obtain and maintain such policies of insurance and pay such
premium and take any other actions with respect thereto as the Collateral
Agent deems advisable. All sums disbursed by the Collateral Agent in
connection with this Section 4.11, including reasonable attorneys' fees,
court costs, expenses and other charges relating thereto, shall be payable,
upon demand, by the Grantors to the Collateral Agent and shall be
additional Obliga tions secured hereby.
SECTION 4.12. Legend. Each Grantor shall legend, in form and
manner satisfactory to the Collateral Agent, its Accounts Receivable and
its books, records and documents evidencing or pertaining thereto with an
appropriate reference to the fact that such Accounts Receivable have been
assigned to the Collateral Agent for the benefit of the Secured Parties and
that the Collateral Agent has a security interest therein.
SECTION 4.13. Covenants Regarding Patent, Trademark and
Copyright Collateral. (a) Each Grantor agrees that it will not, nor will
it permit any of its licensees to, do any act, or omit to do any act,
whereby any Patent which is material to the conduct of such Grantor's
business may become invalidated or dedicated to the public, and agrees that
it shall continue to xxxx any products covered by a Patent with the
relevant patent number as necessary and sufficient to establish and
preserve its maximum rights under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicensees) will, for each Trademark material to the conduct of such
Grantor's business, (i) maintain such Trademark in full force free from any
claim of abandonment or invalidity for non-use, (ii) maintain the quality
of products and services offered under such Trademark, (iii) display such
Trademark with notice of Federal or foreign registration to the extent
necessary and sufficient to establish and preserve its maximum rights under
applicable law and (iv) not knowingly use or knowingly permit the use of
such Trademark in violation of any third party rights.
(c) Each Grantor (either itself or through licensees) will, for
each work covered by a material Copyright, continue to publish, reproduce,
display, adopt and distribute the work with appropriate copyright notice as
necessary and sufficient to establish and preserve its maximum rights under
applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent immediately
if it knows or has reason to know that any Patent, Trademark or Copyright
material to the conduct of its business may become abandoned, lost or
dedicated to the public, or of any adverse determination or development
(including the institution of, or any such determination or development in,
any proceeding in the United States Patent and Trademark Office, United
States Copyright Office or any court or similar office of any country)
regarding such Grantor's ownership of any Patent, Trademark or Copyright,
its right to register the same, or to keep and maintain the same.
(e) In no event shall any Grantor, either itself or through any
agent, employee, licensee or designee, file an application for any Patent,
Trademark or Copyright (or for the registration of any Trademark or
Copyright) with the United States Patent and Trademark Office, United
States Copyright Office or any office
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or agency in any political subdivision of the United States or in any other
country or any political subdivision thereof, unless it promptly informs
the Collateral Agent, and, upon request of the Collateral Agent, executes
and delivers any and all agreements, instruments, documents and papers as
the Collateral Agent may request to evidence the Collateral Agent's
security interest in such Patent, Trademark or Copyright, and each Grantor
hereby appoints the Collateral Agent as its attorney-in-fact to execute and
file such writings for the foregoing purposes, all acts of such attorney
being hereby ratified and confirmed; such power, being coupled with an
interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are
consistent with the practice in any proceeding before the United States
Patent and Trademark Office, United States Copyright Office or any office
or agency in any political subdivision of the United States or in any other
country or any political subdivision thereof, to maintain and pursue each
material application relating to the Patents, Trademarks and/or Copyrights
(and to obtain the relevant grant or registration) and to maintain each
issued Patent and each registration of the Trademarks and Copyrights that
is material to the conduct of any Grantor's business, including timely
filings of applications for renewal, affidavits of use, affidavits of
incontestability and payment of maintenance fees, and, if consistent with
good business judgment, to initiate opposition, interference and
cancelation proceedings against third parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright material to the
conduct of any Grantor's business has been or is about to be infringed,
misappropriated or diluted by a third party, such Grantor promptly shall
notify the Collateral Agent and shall, if consistent with good business
judgment, promptly xxx for infringement, misappropriation or dilution and
to recover any and all damages for such infringement, misappropriation or
dilution, and take such other actions as are appropriate under the
circumstances to protect such Collateral.
(h) Upon and during the continuance of an Event of Default, each
Grantor shall use its best efforts to obtain all requisite consents or
approvals by the licensor of each Copyright License, Patent License or
Trademark License to effect the assignment of all of such Grantor's right,
title and interest thereunder to the Collateral Agent or its designee.
ARTICLE V
Power of Attorney
Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent and attorney-in-
fact, and in such capacity the Collateral Agent shall have the right, with
power of substitution for each Grantor and in each Grantor's name or
otherwise, for the use and benefit of the Collateral Agent and the Secured
Parties, upon the occurrence and during the continuance of an Event of
Default (a) to receive, endorse, assign and/or deliver any and all notes,
acceptances, checks, drafts, money orders or other evidences of payment
relating to the Collateral or any part thereof; (b) to demand, collect,
receive payment of, give receipt for and give discharges and releases of
all or any of the Collateral; (c) to sign the name of any Grantor on any
invoice or xxxx of lading relating to any of the Collateral; (d) to send
verifications of Accounts Receivable to any Account Debtor; (e) to commence
and prosecute any and all suits, actions or proceedings at law or in equity
in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any
Collateral; (f) to settle, compromise, compound, adjust or defend any
actions, suits or proceedings relating to all or any of the Collateral; (g)
to notify, or to require any Grantor to notify, Account Debtors to make
payment directly to the Collateral Agent; and (h) to use, sell, assign,
transfer, pledge, make any agreement with respect to or otherwise deal with
all or any of the Collateral, and to do all other acts and things necessary
to carry out the purposes of this Agreement, as fully and completely as
though the Collateral Agent were the absolute owner of the Collateral for
all purposes; provided, however, that nothing herein contained shall be
construed as requiring or obligating the Collateral Agent or any Secured
Party to make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Collateral Agent or any Secured
Party, or to present or file any claim or notice, or to take any action
with respect to the Collateral or any part thereof or the moneys due or to
become due in respect thereof or any property covered thereby, and no
action taken or omitted to be taken by the Collateral Agent or any Secured
11
Party with respect to the Collateral or any part thereof shall give rise to
any defense, counterclaim or offset in favor of any Grantor or to any claim
or action against the Collateral Agent or any Secured Party. It is
understood and agreed that the appointment of the Collateral Agent as the
agent and attorney-in-fact of the Grantors for the purposes set forth above
is coupled with an interest and is irrevocable. The provisions of this
Section shall in no event relieve any Grantor of any of its obligations
hereunder or under any other Loan Document with respect to the Collateral
or any part thereof or impose any obligation on the Collateral Agent or any
Secured Party to proceed in any particular manner with respect to the
Collateral or any part thereof, or in any way limit the exercise by the
Collateral Agent or any Secured Party of any other or further right which
it may have on the date of this Agreement or hereafter, whether hereunder,
under any other Loan Document, by law or otherwise.
ARTICLE VI
Remedies
SECTION 6.01. Remedies upon Default. Upon the occurrence and
during the continuance of an Event of Default, each Grantor agrees to
deliver each item of Collateral to the Collateral Agent on demand, and it
is agreed that the Collateral Agent shall have the right to take any of or
all the following actions at the same or different times: (a) with respect
to any Collateral consisting of Intellectual Property, on demand, to cause
the Security Interest to become an assignment, transfer and conveyance of
any of or all such Collateral by the applicable Grantors to the Collateral
Agent, or to license or sublicense, whether general, special or otherwise,
and whether on an exclusive or non-exclusive basis, any such Collateral
throughout the world on such terms and conditions and in such manner as the
Collateral Agent shall determine (other than in violation of any then-
existing licensing arrangements to the extent that waivers cannot be
obtained), and (b) with or without legal process and with or without prior
notice or demand for performance, to take possession of the Collateral and
without liability for trespass to enter any premises where the Collateral
may be located for the purpose of taking possession of or removing the
Collateral and, generally, to exercise any and all rights afforded to a
secured party under the Uniform Commercial Code or other applicable law.
Without limiting the generality of the foregoing, each Grantor agrees that
the Collateral Agent shall have the right, subject to the mandatory
requirements of applicable law, to sell or otherwise dispose of all or any
part of the Collateral, at public or private sale or at any broker's board
or on any securities exchange, for cash, upon credit or for future delivery
as the Collateral Agent shall deem appropriate. The Collateral Agent shall
be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to persons who will
represent and agree that they are purchasing the Collateral for their own
account for investment and not with a view to the distribution or sale
thereof, and upon consummation of any such sale the Collateral Agent shall
have the right to assign, transfer and deliver to the purchaser or
purchasers thereof the Collateral so sold. Each such purchaser at any such
sale shall hold the property sold absolutely, free from any claim or right
on the part of any Grantor, and each Grantor hereby waives (to the extent
permitted by law) all rights of redemption, stay and appraisal which such
Grantor now has or may at any time in the future have under any rule of law
or statute now existing or hereafter enacted .
The Collateral Agent shall give the Grantors 10 days' written
notice (which each Grantor agrees is reasonable notice within the meaning
of Section 9-504(3) of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions) of the
Collateral Agent's intention to make any sale of Collateral. Such notice,
in the case of a public sale, shall state the time and place for such sale
and, in the case of a sale at a broker's board or on a securities exchange,
shall state the board or exchange at which such sale is to be made and the
day on which the Collateral, or portion thereof, will first be offered for
sale at such board or exchange. Any such public sale shall be held at such
time or times within ordinary business hours and at such place or places as
the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the Collateral, or portion thereof, to be sold may be
sold in one lot as an entirety or in separate parcels, as the Collateral
Agent may (in its sole and absolute discretion) determine. The Collateral
Agent shall not be obligated to make any sale of any Collateral if it shall
determine not to do so, regardless of the fact that notice of sale of such
Collateral shall have been given. The Collateral Agent may, without notice
or publica tion, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and
place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or
12
for future delivery, the Collateral so sold may be retained by the
Collateral Agent until the sale price is paid by the purchaser or
purchasers thereof, but the Collateral Agent shall not incur any liability
in case any such purchaser or purchasers shall fail to take up and pay for
the Collateral so sold and, in case of any such failure, such Collateral
may be sold again upon like notice. At any public (or, to the extent
permitted by law, private) sale made pursuant to this Section, any Secured
Party may bid for or purchase, free (to the extent permitted by law) from
any right of redemption, stay, valuation or appraisal on the part of any
Grantor (all said rights being also hereby waived and released to the
extent permitted by law), the Collateral or any part thereof offered for
sale and may make payment on account thereof by using any claim then due
and payable to such Secured Party from any Grantor as a credit against the
purchase price, and such Secured Party may, upon compliance with the terms
of sale, hold, retain and dispose of such property without further
accountability to any Grantor therefor. For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be
treated as a sale thereof; the Collateral Agent shall be free to carry out
such sale pursuant to such agreement and no Grantor shall be entitled to
the return of the Collateral or any portion thereof subject thereto,
notwithstanding the fact that after the Collateral Agent shall have entered
into such an agreement all Events of Default shall have been remedied and
the Obligations paid in full. As an alternative to exercising the power of
sale herein conferred upon it, the Collateral Agent may proceed by a suit
or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a
court or courts having competent jurisdiction or pursuant to a proceeding
by a court-appointed receiver.
SECTION 6.02. Application of Proceeds. The Collateral Agent shall apply
the proceeds of any collection or sale of the Collateral, as well as any
Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent or the Collateral Agent (in its capacity as such
hereunder or under any other Loan Document) in connection with such
collection or sale or otherwise in connection with this Agreement or
any of the Obligations, including all court costs and the fees and
expenses of its agents and legal counsel, the repayment of all
advances made by the Collateral Agent hereunder or under any other
Loan Document on behalf of any Grantor and any other costs or expenses
incurred in connection with the exercise of any right or remedy
hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so
applied to be distributed among the Secured Parties pro rata in
accordance with the amounts of the Obligations owed to them on the
date of any such distribution); and
THIRD, to the Grantors, their successors or assigns, or as a
court of competent jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with
this Agreement. Upon any sale of the Collateral by the Collateral Agent
(including pursuant to a power of sale granted by statute or under a
judicial proceeding), the receipt of the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold and such purchaser or purchasers shall
not be obligated to see to the application of any part of the purchase
money paid over to the Collateral Agent or such officer or be answerable in
any way for the misapplication thereof.
SECTION 6.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies
under this Article at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Grantor hereby grants
to the Collateral Agent an irrevocable, non-exclusive license (exercisable
without payment of royalty or other compensation to the Grantors) to use,
license or sub-license any of the Collateral consisting of Intellectual
Property now owned or hereafter acquired by such Grantor, and wherever the
same may be located, and including in such license reasonable access to all
media in which any of the licensed items may be recorded or stored and to
all computer software and programs used for the compilation or printout
thereof. The use of such license by the Collateral Agent shall be
exercised, at the option of the Collateral Agent, upon the occurrence and
during the continuation of an Event of Default; provided that any license,
sub-license or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
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subsequent cure of an Event of Default.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder
shall (except as otherwise expressly permitted herein) be in writing and
given as provided in Section 9.01 of the Credit Agreement. All
communications and notices hereunder to any Guarantor shall be given to it
at its address or telecopy number set forth on Schedule I, with a copy to
the Borrower.
SECTION 7.02. Security Interest Absolute. All rights of the
Collateral Agent hereunder, the Security Interest and all obligations of
the Grantors hereunder shall be absolute and unconditional irrespective of
(a) any lack of validity or enforceability of the Credit Agreement, any
other Loan Document, any agreement with respect to any of the Obligations
or any other agreement or instrument relating to any of the foregoing, (b)
any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations, or any other amendment or waiver of or
any consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument, (c) any exchange, release or
non-perfection of any Lien on other collateral, or any release or amendment
or waiver of or consent under or departure from any guarantee, securing or
guaranteeing all or any of the Obligations, or (d) any other circumstance
that might otherwise constitute a defense available to, or a discharge of,
any Grantor in respect of the Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor herein and in the
certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement shall be considered to have been relied upon
by the Secured Parties and shall survive the making by the Lenders of the
Loans, and the execution and delivery to the Lenders of any notes
evidencing such Loans, regardless of any investigation made by the Lenders
or on their behalf, and shall continue in full force and effect until this
Agreement shall terminate.
SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Grantor when a counterpart hereof executed on
behalf of such Grantor shall have been delivered to the Collateral Agent
and a counterpart hereof shall have been executed on behalf of the
Collateral Agent, and thereafter shall be binding upon such Grantor and the
Collateral Agent and their respective successors and assigns, and shall
inure to the benefit of such Grantor, the Collateral Agent and the other
Secured Parties and their respective successors and assigns, except that no
Grantor shall have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Collateral (and any
such assignment or transfer shall be void) except as expressly contemplated
by this Agreement or the Credit Agreement. This Agreement shall be
construed as a separate agreement with respect to each Grantor and may be
amended, modified, supplemented, waived or released with respect to any
Grantor without the approval of any other Grantor and without affecting the
obligations of any other Grantor hereunder.
SECTION 7.05. Successors and Assigns. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any Grantor or the Collateral
Agent that are contained in this Agreement shall bind and inure to the
benefit of their respective successors and assigns.
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification.
(a) Each Grantor jointly and severally agrees to pay upon demand to the
Collateral Agent the amount of any and all reasonable expenses, including
the reasonable fees, disbursements and other charges of its counsel and of
any experts or agents, which the Collateral Agent may incur in connection
with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from or other realization upon
any of the Collateral, (iii) the exercise, enforcement or protection of any
of the rights of the Collateral Agent hereunder or (iv) the failure of any
Grantor to perform or observe any of the provisions hereof.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each
14
Grantor jointly and severally agrees to indemnify the Collateral Agent and
the other Indemnitees against, and hold each of them harmless from, any and
all losses, claims, damages, liabilities and related expenses, including
reasonable fees, disbursements and other charges of counsel, incurred by or
asserted against any of them arising out of, in any way connected with, or
as a result of, the execution, delivery or performance of this Agreement or
any claim, litigation, investigation or proceeding relating hereto or to
the Collateral, whether or not any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The
provisions of this Section 7.06 shall remain operative and in full force
and effect regardless of the termination of this Agreement or any other
Loan Document, the consummation of the transactions contemplated hereby,
the repayment of any of the Loans, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Collateral Agent or any Lender.
All amounts due under this Section 7.06 shall be payable on written demand
therefor.
SECTION 7.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Collateral Agent hereunder and of the Collateral Agent, the Administrative
Agent and the Lenders 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 provisions of this Agreement or any other Loan Document or
consent to any departure by any Grantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and
then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on
any Grantor in any case shall entitle such Grantor or any other Grantor to
any other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in
writing entered into by the Collateral Agent and the Grantor or Grantors
with respect to which such waiver, amendment or modification is to apply,
subject to any consent required in accordance with Section 9.02 of the
Credit Agreement.
SECTION 7.09. 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 RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. 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 AND THE OTHER
LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.09.
SECTION 7.10. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected
or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of
itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
15
SECTION 7.11. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract (subject to
Section 7.04), and shall become effective as provided in Section 7.04.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually executed
counterpart hereof.
SECTION 7.12. Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are
not to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 7.13. Jurisdiction; Consent to Service of Process. (a) Each
Grantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or the other Loan Documents, 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 shall affect any right that the Collateral Agent, the
Administrative Agent or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement or the other Loan Documents
against any Grantor or its properties in the courts of any jurisdiction.
(b) Each Grantor 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 the
other Loan Documents in any New York State or Federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in
this Agreement will affected the right of any party to this Agreement to
serve process in any other manner permitted by law.
SECTION 7.14. Termination. This Agreement and the Security Interest
shall terminate when all the Obligations have been indefeasibly paid in
full and the Lenders have no further commitment to lend under the Credit
Agreement, at which time the Collateral Agent shall execute and deliver to
the Grantors, at the Grantors' expense, all Uniform Commercial Code
termination statements and similar documents which the Grantors shall
reasonably request to evidence such termination. Any execution and delivery
of termination statements or documents pursuant to this Section 7.14 shall
be without recourse to or warranty by the Collateral Agent. A Guarantor
shall automatically be released from its obligations hereunder and the
Security Interest in the Collateral of such Guarantor shall be
automatically released in the event that all the capital stock of such
Guarantor shall be sold, transferred or otherwise disposed of to a person
that is not an Affiliate of the Borrower in accordance with the terms of
the Credit Agreement; provided that the Required Lenders shall have
consented to such sale, transfer or other disposition (to the extent
required by the Credit Agreement) and the terms of such consent did not
provide otherwise.
SECTION 7.15. Additional Grantors. Upon execution and delivery by
the Collateral Agent and a Subsidiary of an instrument in the form of Annex
3 hereto, such Subsidiary shall become a Grantor hereunder with the same
force and effect as if originally named as a Grantor herein. The execution
and delivery of any such instrument shall not require the consent of any
Grantor hereunder. The rights and obligations of each Grantor hereunder
shall remain in full force and effect notwithstanding the addition of any
new Grantor as a party to this Agreement.
SECTION 7.16. FCC Consent. Notwithstanding anything herein which may
be construed to the contrary, no action shall be taken by any of the
Collateral Agent and the Secured Parties with respect to the
16
Licenses or any license of the Federal Communications Commission ("FCC")
unless and until any required approval under the Federal Communications Act
of 1934, and any applicable rules and regulations thereunder, requiring the
consent to or approval of such action by the FCC or any governmental or
other authority, have been satisfied.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
TRITON PCS, INC.,
By _______________________________________
Name:
Title:
TRITON PCS HOLDINGS, INC.,
By _______________________________________
Name:
Title:
TRITON MANAGEMENT COMPANY, INC.,
By _______________________________________
Name:
Title:
EACH OF THE OTHER GUARANTORS LISTED ON
SCHEDULE I HERETO,
By: TRITON MANAGEMENT COMPANY, INC.,
its manager,
_________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral
Agent,
By _______________________________________
Name:
Title:
Schedule I to the
Security Agreement
SUBSIDIARY GUARANTORS
Subsidiary Guarantors Address
--------------------- -------
1. Triton Management Company, Inc. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
2. Triton PCS Holdings Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
3. Triton PCS Operating Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
4. Triton PCS License Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
5. Triton PCS Property Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
6. Triton PCS Equipment Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Schedule II to the
Security Agreement
COPYRIGHTS
None.
Schedule III to the
Security Agreement
LICENSES
The Network License Agreement, subject to the conditions for
assignment set forth in Section 3.1 thereof.
Schedule IV to the
Security Agreement
PATENTS
None.
Schedule V to the
Security Agreement
TRADEMARKS
None.
Annex 2 to the
Security Agreement
[Form of]
PERFECTION CERTIFICATE
Reference is made to (a) the Credit Agreement dated as of February 3,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Triton PCS Holdings, Inc., the Borrower, the
lenders from time to time party thereto (the "Lenders") and The Chase
Manhattan Bank, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent") and Collateral Agent and (b) the Guarantee
Agreement dated as of February , 1998 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee Agreement"), among the
Guarantors and the Collateral Agent.
The undersigned, a Financial Officer of the Borrower, hereby certifies
the Collateral Agent and each other Secured Party as follows:
1. Names. (a) The exact corporate name of each Grantor, as such name
appears in its respective certificate of incorporation, is as follows:
(b) Set forth below is each other corporate name each Grantor has had
in the past five years, together with the date of the relevant change:
(c) Except as set forth in Schedule 1 hereto, no Grantor has changed
its identity or corporate structure in any way within the past five years.
Changes in identity or corporate structure would include mergers,
consolidations and acquisitions, as well as any change in the form, nature
or jurisdiction of corporate organization. If any such change has
occurred, include in Schedule 1 the information required by Sections 1 and
2 of this certificate as to each acquiree or constituent party to a merger
or consolidation.
(d) The following is a list of all other names (including trade names
or similar appellations) used by each Grantor or any of its divisions or
other business units in connection with the conduct of its business or the
ownership of its properties at any time during the past five years:
(e) Set forth below is the Federal Taxpayer Identification Number of
each Grantor:
2. Current Locations. (a) The chief executive office of each Grantor
is located at the address set forth opposite its name below:
Grantor Mailing Address County State
------- --------------- ------ -----
2
(b) Set forth below opposite the name of each Grantor are all
locations where such Grantor maintains any books or records relating to any
Accounts Receivable (with each location at which chattel paper, if any, is
kept being indicated by an "*"):
Grantor Mailing Address County State
------- --------------- ------ -----
(c) Set forth below opposite the name of each Grantor are all the
places of business of such Grantor not identified in paragraph (a) or (b)
above:
Grantor Mailing Address County State
------- --------------- ------ -----
(d) Set forth below opposite the name of each Grantor are all the
locations where such Grantor maintains any Collateral not identified above:
Grantor Mailing Address County State
------- --------------- ------ -----
(e) Set forth below opposite the name of each Grantor are the names
and addresses of all persons other than such Grantor that have possession
of any of the Collateral of such Grantor:
Grantor Mailing Address County State
------- --------------- ------ -----
3. Unusual Transactions. All Accounts Receivable have been
originated by the Grantors and all Inventory has been acquired by the
Grantors in the ordinary course of business.
4. File Search Reports. Attached hereto as Schedule 4(A) are true
copies of file search reports from the Uniform Commercial Code filing
offices where filings described in Section 3.22 of the Credit Agreement are
to be made. Attached hereto as Schedule 4(B) is a true copy of each
financing statement or other filing identified in such file search reports.
5. UCC Filings. Duly signed financing statements on Form UCC-1 in
substantially the form of Schedule 5 hereto have been prepared for filing
in the Uniform Commercial Code filing office in each jurisdiction where a
Grantor has Collateral as identified in Section 2 hereof.
6. Schedule of Filings. Attached hereto as Schedule 6 is a schedule
setting forth, with respect to the filings described in Section 5 above,
each filing and the filing office in which such filing is to be made.
7. Filing Fees. All filing fees and taxes payable in connection with
the filings described in Section 5 above have been paid.
8. Stock Ownership. Attached hereto as Schedule 8 is a true and
correct list of all the duly authorized, issued and outstanding stock of
each Subsidiary and the record and beneficial owners of such stock. Also
set
3
forth on Schedule 8 is each equity Investment of the Borrower and each
Subsidiary that represents 50% or less of the equity of the entity in which
such investment was made.
9. Notes. Attached hereto as Schedule 9 is a true and correct list
of all notes held by the Borrower and each Subsidiary and all intercompany
notes between the Borrower and each Subsidiary of the Borrower and between
each Subsidiary of the Borrower and each other such Subsidiary.
10. Advances. Attached hereto as Schedule 10 is (a) a true and
correct list of all advances made by the Borrower to any Subsidiary of the
Borrower or made by any Subsidiary of the Borrower to the Borrower or any
other Subsidiary of the Borrower, which advances will be on and after the
date hereof evidenced by one or more intercompany notes pledged to the
Collateral Agent under the Pledge Agreement, and (b) a true and correct
list of all unpaid intercompany transfers of goods sold and delivered by or
to the Borrower or any Subsidiary of the Borrower.
11. Mortgage Filings. Attached hereto as Schedule 11 is a schedule
setting forth, with respect to each Mortgaged Property, (i) the exact
corporate name of the entity that owns such property as such name appears
in its certificate of formation, (ii) if different from the name identified
pursuant to clause (i), the exact name of the current record owner of such
property reflected in the records of the filing office for such property
identified pursuant to the following clause and (iii) the filing office in
which a Mortgage with respect to such property must be filed or recorded in
order for the Collateral Agent to obtain a perfected security interest
therein.
IN WITNESS WHEREOF, the undersigned have duly executed this
certificate on this [ ] day of [ ].
TRITON PCS, INC.,
By_______________________________________
Name:
Title: [Financial Officer]
Annex 3 to the
Security Agreement
SUPPLEMENT NO. __ dated as of , to the Security
Agreement dated as of February , 1998, among Triton PCS, Inc.,
a Delaware corporation (the "Borrower"), TRITON PCS HOLDINGS,
INC., a Delaware corporation ("Holdings") and each subsidiary of
the Borrower listed on Schedule I thereto (each such subsidiary
individually a "Subsidiary" and, together with Holdings, the
"Guarantors"; the Guarantors and the Borrower are referred to
collectively herein as the "Grantors") and THE CHASE MANHATTAN
BANK, a Delaware corporation ("Chase"), as collateral agent (in
such capacity, the "Collateral Agent") for the Secured Parties
(as defined herein).
A. Reference is made to (a) the Credit Agreement dated as of February
, 1998 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto (the "Lenders") and Chase, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent") and Collateral Agent
and (b) the Guarantee Agreement dated as of February , 1998 (as amended,
supplemented or otherwise modified from time to time, the "Guarantee
Agreement"), among the Guarantors and the Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Security Agreement
and the Credit Agreement.
C. The Grantors have entered into the Security Agreement in order to
induce the Lenders to make Loans. Section 7.15 of Security Agreement
provides that additional Subsidiaries of the Borrower may become Grantors
under the Security Agreement by execution and delivery of an instrument in
the form of this Supplement. The undersigned Subsidiary (the "New
Grantor") is executing this Supplement in accordance with the requirements
of the Credit Agreement to become a Grantor under the Security Agreement in
order to induce the Lenders to make additional Loans and as consideration
for Loans previously made.
Accordingly, the Collateral Agent and the New Grantor agree as
follows:
SECTION 1. In accordance with Section 7.15 of the Security Agreement,
the New Grantor by its signature below becomes a Grantor under the Security
Agreement with the same force and effect as if originally named therein as
a Grantor and the New Grantor hereby (a) agrees to all the terms and
provisions of the Security Agreement applicable to it as a Grantor
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Grantor thereunder are true and correct on and
as of the date hereof. In furtherance of the foregoing, the New Grantor,
as security for the payment and performance in full of the Obligations (as
defined in the Security Agreement), does hereby create and grant to the
Collateral Agent, its successors and assigns, for the benefit of the
Secured Parties, their successors and assigns, a security interest in and
lien on all of the New Grantor's right, title and interest in and to the
Collateral (as defined in the Security Agreement) of the New Grantor. Each
reference to a "Grantor" in the Security Agreement shall be deemed to
include the New Grantor. The Security Agreement is hereby incorporated
herein by reference.
SECTION 2. The New Grantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid
and binding obligation, enforceable against it in accordance with its
terms.
SECTION 3. This Supplement 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 Supplement shall become effective when
the Collateral Agent shall have received counterparts of this Supplement
that, when taken together, bear the signatures of the New Grantor and the
Collateral Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. The New Grantor hereby represents and warrants that (a)
set forth on Schedule I attached hereto is a true and correct schedule of
the location of any and all Collateral of the New Grantor and (b) set forth
under its signature hereto, is the true and correct location of the chief
executive office of the New Grantor.
2
SECTION 5. Except as expressly supplemented hereby, the Security
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Security Agreement shall not in any
way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not
in and of itself affect the validity of such provision in any other
jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions
with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 7.01 of the Security Agreement.
All communications and notices hereunder to the New Grantor shall be given
to it at the address set forth under its signature below.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements
of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly
executed this Supplement to the Security Agreement as of the day and year
first above written.
[NAME OF NEW GRANTOR],
By_______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral Agent,
By_______________________________________
Name:
Title:
Schedule I
to Supplement No. [ ]
to the Security Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated
as of February 4, 1998, among Triton PCS, Inc., a Delaware
corporation (the "Borrower"), TRITON PCS HOLDINGS, INC., a
Delaware corporation ("Holdings"), each Subsidiary of the
Borrower listed on Schedule I hereto (each a "Subsidiary"
and, together with Holdings, the "Guarantors") and THE CHASE
MANHATTAN BANK, a Delaware corporation ("Chase"), as
collateral agent (in such capacity, the "Collateral Agent")
for the Secured Parties (as defined in the Credit Agreement
referred to below).
Reference is made to (a) the Credit Agreement dated as of February 3,
1998 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Holdings, the Borrower, the lenders from time to
time party thereto (the "Lenders") and Chase, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent") and Collateral
Agent, and (b) the Guarantee Agreement dated as of February , 1998,
among the Guarantors and the Collateral Agent (the "Guarantee Agreement").
Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower pursuant to, and
upon the terms and subject to the conditions specified in, the Credit
Agreement. The Guarantors have guaranteed such Loans and the other
Obligations (as defined in the Guarantee Agreement) of the Borrower under
the Credit Agreement pursuant to the Guarantee Agreement; certain
Guarantors have granted Liens on and security interests in certain of their
assets to secure such guarantees. The obligations of the Lenders to make
Loans are conditioned on, among other things, the execution and delivery by
the Borrower and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Collateral Agent
agree as follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights
of indemnity and subrogation as the Guarantors may have under applicable
law (but subject to Section 3), the Borrower agrees that (a) in the event a
payment shall be made by any Guarantor under the Guarantee Agreement, the
Borrower shall indemnify such Guarantor for the full amount of such payment
and such Guarantor shall be subrogated to the rights of the person to whom
such payment shall have been made to the extent of such payment and (b) in
the event any assets of any Guarantor shall be sold pursuant to any
Security Document to satisfy a claim of any Secured Party, the Borrower
shall indemnify such Guarantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event
a payment shall be made by any other Guarantor under the Guarantee
Agreement or assets of any other Guarantor shall be sold pursuant to any
Security Document to satisfy a claim of any Secured Party and such other
Guarantor (the "Claiming Guarantor") shall not have been fully indemnified
by the Borrower as provided in Section 1, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which
the numerator shall be the net worth of the Contributing Guarantor on the
date hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a
party hereto pursuant to Section 12, the date of the Supplement hereto
executed and delivered by such Guarantor). Any Contributing Guarantor
making any payment to a Claiming Guarantor pursuant to this Section 2 shall
be subrogated to the rights of such Claiming Guarantor under Section 1 to
the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1
and 2 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of all Obligations which are then due and payable
whether at maturity, by acceleration or otherwise. No failure on the part
of the Borrower or any Guarantor to make the payments required by Sections
1 and 2 (or any other payments required under applicable law or otherwise)
shall in any respect limit the obligations and liabilities
2
of any Guarantor with respect to its obligations hereunder, and each
Guarantor shall remain liable for the full amount of the obligations of
such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash or any of the Commitments under the
Credit Agreement have not been terminated, and shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of any Obligation is rescinded or must otherwise be
restored by any Secured Party or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Collateral Agent or any Guarantor to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy by
the Collateral Agent or any Guarantor preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. All
remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. None of the Collateral Agent and the Guarantors
shall be deemed to have waived any rights hereunder unless such waiver
shall be in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into
between the Borrower, the Guarantors and the Collateral Agent, with the
prior written consent of the Required Lenders (except as otherwise provided
in the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall
be in writing and given as provided in the Guarantee Agreement and
addressed as specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the parties that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. Neither the Borrower nor any Guarantor
may assign or transfer any of its rights or obligations hereunder (and any
such attempted assignment or transfer shall be void) without the prior
written consent of the Required Lenders. Notwithstanding the foregoing, at
the time any Guarantor is released from its obligations under the Guarantee
Agreement in accordance with such Guarantee Agreement and the Credit
Agreement, such Guarantor will cease to have any rights or obligations
under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All covenants
and agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with
this Agreement or the other Loan Documents shall be considered to have been
relied upon by the Collateral Agent, the other Secured Parties and each
Guarantor and shall survive the making by the Lenders of the Loans and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loans or any other fee or amount payable under the
Credit Agreement or this Agreement or under any of the other Loan Documents
is outstanding and unpaid and as long as the Commitments have not been
terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect,
no party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby. The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Agreement shall be
effective with respect to any Guarantor
3
when a counterpart bearing the signature of such Guarantor shall have been
delivered to the Collateral Agent. Delivery of an executed signature page
to this Agreement by facsimile transmission shall be as effective as
delivery of a manually signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to
this Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.12 of the
Credit Agreement, each Subsidiary Loan Party of the Borrower that was not
in existence or not a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into the Guarantee Agreement as a Guarantor
upon becoming a Subsidiary Loan Party. Upon execution and delivery, after
the date hereof, by the Collateral Agent and such a Subsidiary of an
instrument in the form of Annex 1 hereto, such Subsidiary shall become a
Guarantor here under with the same force and effect as if originally named
as a Guarantor hereunder. The execution and delivery of any instrument
adding an additional Guarantor as a party to this Agreement shall not
require the consent of any Guarantor hereunder. The rights and obligations
of each Guarantor hereunder shall remain in full force and effect
notwithstanding the addition of any new Guarantor as a party to this
Agreement.
SECTION 13. FCC Consent. Notwithstanding anything herein which may
be construed to the contrary, no action shall be taken by any of the
Collateral Agent and the Secured Parties with respect to the Licenses or
any license of the Federal Communications Commission ("FCC") unless and
until any required approval under the Federal Communications Act of 1934,
and any applicable rules and regulations thereunder, requiring the consent
to or approval of such action by the FCC or any governmental or other
authority, have been satisfied.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers as of the date first
appearing above.
TRITON PCS, INC.,
By_______________________________________
Name:
Title:
TRITON PCS HOLDINGS, INC.,
By_______________________________________
Name:
Title:
TRITON MANAGEMENT COMPANY, INC.,
By_______________________________________
Name:
Title:
4
EACH OF THE OTHER SUBSIDIARIES LISTED ON SCHEDULE I HERETO,
as a Guarantor,
By: TRITON MANAGEMENT COMPANY, INC.,
its manager,
______________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral Agent,
By_______________________________________
Name:
Title:
Schedule I to the
Indemnity, Subrogation and
Contribution Agreement
SUBSIDIARY GUARANTORS
Subsidiary Guarantor Address
-------------------- -------
1. Triton Management Company, Inc. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
2. Triton PCS Holdings Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
3. Triton PCS Operating Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
4. Triton PCS License Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
5. Triton PCS Property Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
6. Triton PCS Equipment Company L.L.C. 000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000
Annex 1 to the
Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the Indemnity,
Subrogation and Contribution Agreement dated as of February ,
1998 (as the same may be amended, supplemented or otherwise
modified from time to time, the "Indemnity, Subrogation and
Contribution Agreement"), among TRITON PCS, INC., a Delaware
corporation (the "Borrower") TRITON PCS HOLDINGS, INC., a Delaware
corporation ("Holdings"), each Subsidiary of the Borrower listed
on Schedule I thereto (each, a "Subsidiary" and, together with
Holdings, the "Guarantors"), and THE CHASE MANHATTAN BANK, a New
York banking corporation ("Chase"), as collateral agent (the
"Collateral Agent") for the Secured Parties (as defined in the
Credit Agreement referred to below).
A. Reference is made to (a) the Credit Agreement dated as of February
, 1998 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto (the "Lenders") and Chase, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent") and Collateral
Agent, and (b) the Guarantee Agreement dated as of February , 1998, among
the Guarantors and the Collateral Agent (the "Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Indemnity,
Subrogation and Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to
make Loans. Pursuant to Section 5.12 of the Credit Agreement, each
Subsidiary Loan Party of the Borrower that was not in existence or not a
Subsidiary Loan Party on the date of the Credit Agreement is required to
enter into the Guarantee Agreement as a Guarantor upon becoming a
Subsidiary Loan Party. Section 12 of the Indemnity, Subrogation and
Contribution Agreement provides that additional Subsidiaries of the
Borrower may become Guarantors under the Indemnity, Subrogation and
Contribution Agreement by execution and delivery of an instrument in the
form of this Supplement. The undersigned Subsidiary of the Borrower (the
"New Guarantor") is executing this Supplement in accordance with the
requirements of the Credit Agreement to become a Guarantor under the
Indemnity, Subrogation and Contribution Agreement in order to induce the
Lenders to make additional Loans and as consideration for Loans previously
made.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity,
Subrogation and Contribution Agreement, the New Guarantor by its signature
below becomes a Guarantor under the Indemnity, Subrogation and Contribution
Agreement with the same force and effect as if originally named therein as
a Guarantor and the New Guarantor hereby agrees to all the terms and
provisions of the Indemnity, Subrogation and Contribution Agreement
applicable to it as a Guarantor thereunder. Each reference to a
"Guarantor" in the Indemnity, Subrogation and Contribution Agreement shall
be deemed to include the New Guarantor. The Indemnity, Subrogation and
Contribution Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Collateral Agent and the other Secured Parties that this Supplement has
been duly authorized, executed and delivered by it and constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms.
SECTION 3. This Supplement 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 Supplement shall become effective when
the Collateral Agent shall have received counterparts of this Supplement
that, when taken together, bear the signatures of the New Guarantor and the
Collateral Agent. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and
effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
2
SECTION 6. In case any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any
respect, neither party hereto shall be required to comply with such
provision for so long as such provision is held to be invalid, illegal or
unenforceable, but the validity, legality and enforceability of the
remaining provisions contained herein and in the Indemnity, Subrogation and
Contribution Agreement shall not in any way be affected or impaired. The
parties hereto shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in
writing and given as provided in Section 7 of the Indemnity, Subrogation
and Contribution Agreement. All communications and notices hereunder to
the New Guarantor shall be given to it at the address set forth under its
signature.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements
of counsel for the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Indemnity, Subrogation and
Contribution Agreement as of the day and year first above written.
[NAME OF NEW GUARANTOR],
By_______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as Collateral Agent,
By_______________________________________
Name:
Title:
Schedule I to Supplement No. [ ]
to the Indemnity, Subrogation and
Contribution Agreement
GUARANTORS
Name Address
---- -------
