AMENDED AND RESTATED
CONSENT AND AGREEMENT
(Nortel/Alamosa Texas)
This Amended and Restated Consent and Agreement (this "Consent and
Agreement") is entered into as of February 8, 2000, between SPRINT SPECTRUM
L.P., a Delaware limited partnership ("Sprint Spectrum"), SPRINTCOM, INC., a
Kansas corporation ("SprintCom"), SPRINT COMMUNICATIONS COMPANY, L.P., a
Delaware limited partnership ("Sprint Communications"), Xxx Communications PCS,
L.P., a Delaware limited partnership ("Xxx Communications"), Cox PCS License,
LLC, a Delaware limited liability company ("Cox License"), WIRELESSCO, L.P., a
Delaware limited partnership ("WirelessCo" and together with Sprint Spectrum,
SprintCom, Sprint Communications, Xxx Communications and Cox License the "Sprint
Parties"), and NORTEL NETWORKS INC., a Delaware corporation, as administrative
agent (together with any successors thereof in accordance with the Credit
Agreement hereinafter described, the "Administrative Agent") for the lenders
under that certain Credit Agreement among ALAMOSA PCS, INC., a Delaware
corporation ("Borrower"), the Administrative Agent and the lenders from time to
time party thereto (the "Lenders").
The parties are entering into this Consent and Agreement because (1)
Alamosa PCS LLC, a Texas limited liability company ("Former Alamosa"), and the
Sprint Parties entered into a Sprint PCS Management Agreement dated December 23,
1999 (which Sprint PCS Management Agreement superseded the Sprint PCS Management
Agreement entered into by Former Alamosa and certain of the Sprint Parties on
July 17, 1998), (2) Former Alamosa has reorganized or will reorganize its
ownership and operating structure, resulting in Borrower (rather than Former
Alamosa) being the borrower under the Credit Agreement and a new wholly-owned
subsidiary of Borrower (rather than Former Alamosa) being the Manager under the
Sprint PCS Management Agreement and thereby operating the Service Area Network
and owning the Operating Assets, and (3) Borrower and certain of its affiliated
parties and the Administrative Agent are entering into an Amended and Restated
Credit Agreement. This Consent and Agreement amends, restates, and supersedes
that certain Consent and Agreement entered into as of June 10, 1999, by and
among certain of the Sprint Parties and the Administrative Agent, which was
acknowledged by the Former Alamosa.
Texas Telecommunications, LP, a Texas limited partnership ("Texas
Telecommunications" or "Affiliate"), has succeeded or will succeed as Manager to
the Sprint PCS Management Agreement dated December 23, 1999 (the "Management
Agreement") between Former Alamosa and the Sprint Parties providing for the
design, construction and management of the Service Area Network (as therein
defined). Texas Telecommunications is a subsidiary of Borrower. Affiliate has
also assumed Former Alamosa's obligations and responsibilities under and with
respect to the Sprint PCS Services Agreement (as it may be amended, modified, or
supplemented from time to time, the "Services Agreement") and the Sprint
Trademark and Service Xxxx License Agreement and the Sprint Spectrum Trademark
and Service Xxxx License Agreement (together, as they may be amended, modified,
or supplemented from time to time, the "License Agreements") (the Management
Agreement, the Services Agreement and the License Agreements and all other
agreements between Affiliate, Borrower, or their respective subsidiaries, on the
one hand, and any one or more of the Sprint Parties or any subsidiary of Sprint
Corporation on the other hand (whether entered into prior to, on, or after the
date hereof) that relate to the Service Area Network as they may be amended,
modified, or supplemented from time to time, collectively, the "Sprint
Agreements").
Borrower and certain of its affiliated entities have entered into or
concurrently herewith are entering into that certain Amended and Restated Credit
Agreement dated as of February 8, 2000, with the Administrative Agent and the
Lenders (such Credit Agreement, as it may be amended, supplemented, restated,
replaced or otherwise modified from time to time, the "Credit Agreement"), to
provide financing for a portion of the costs of the design and construction of
the Service Area Network and for certain other purposes. The Credit Agreement
and each note, security agreement, pledge agreement, guaranty and any and all
other agreements, documents or instruments entered into in connection with any
of the foregoing, as the same may from time to time be amended, supplemented,
restated, replaced or otherwise modified from time to time, shall collectively
be referred to as the "Loan Documents."
The Obligations under the Loan Documents are guaranteed by Alamosa PCS
Holdings, Inc., the sole shareholder of Borrower, Affiliate and the other
affiliates of Borrower (collectively, the "Guarantors") pursuant to those
certain Guaranty Agreements executed by the Guarantors in favor of the
Administrative Agent (the "Guaranty Documents").
As a condition to the availability of credit to Borrower under the
Credit Agreement, the Administrative Agent and the Lenders have required the
execution and delivery of this Consent and Agreement by the Sprint Parties and
have required that Borrower, Affiliate and the other Guarantors acknowledge,
consent and agree to all terms and provisions of this Consent and Agreement.
One or more of the Sprint Parties hold, directly or indirectly, the
licenses for the service areas managed by Affiliate as contemplated in the
Management Agreement. As used in this Consent and Agreement, the term "Sprint
PCS" shall refer in each particular instance or application to the Sprint Party
that owns the License in that portion of the Service Area to which the subject
of the instance or application applies.
All capitalized terms in this Consent and Agreement shall have the same
meanings ascribed to them in the Management Agreement unless otherwise provided
in this Consent and Agreement; provided, that the terms "Commitments",
"Default", "Event of Default", "Loan Documents" and "Obligations" shall have the
meanings ascribed to them in the Credit Agreement.
Accordingly, each Sprint Party and the Administrative Agent, on behalf
of itself and for the Lenders, hereby agree as follows:
SECTION 1. Consent to Security Interest. In connection with the
transactions contemplated by the Credit Agreement and the other Loan Documents,
(a) Borrower has granted or will grant to the Administrative Agent, for the
benefit of the Lenders, a first priority security interest in and lien upon
substantially all of its assets and property, tangible and intangible, whether
now owned or hereafter acquired or arising, and all proceeds and products
thereof and accessions thereto, and a first priority security interest in and
pledge of all partnership interests, membership interests or other equity
interests in Affiliate (the "Pledged Equity"), and (b) Affiliate has granted or
will grant to the Administrative Agent, for the benefit of the Lenders, a first
priority security interest in and lien upon substantially all of its assets and
property, tangible and intangible, whether now owned or hereafter acquired or
arising, and all proceeds and products thereof and accessions thereto, including
but not limited to the Operating Assets, and a first priority security interest
and lien upon the rights of Affiliate in, to and under the
2
Sprint Agreements. The foregoing security interests, liens and pledges are
referred to collectively as the "Security Interests" and the foregoing assets
and property in which the Administrative Agent, for the benefit of the Lenders,
has been or will be granted a first priority security interest in and lien are
referred to collectively as the "Collateral". In addition to the foregoing, each
of the other affiliated entities of Borrower and Affiliate have granted or will
grant to the Administrative Agent, for the benefit of the Lenders, a first
priority security interest in and lien upon substantially all of its assets and
property, tangible and intangible, whether now owned or hereafter acquired or
arising, and all proceeds and products thereof and accessions thereto, which
security interests and liens are referred to collectively as the "Additional
Security Interests" and which assets and property are referred to collectively
as the "Additional Collateral." Each Sprint Party (i) acknowledges notice of the
Credit Agreement and the other Loan Documents, (ii) consents to the granting of
the Security Interests in the Collateral and of the Additional Security
Interests in the Additional Collateral to the Administrative Agent, for the
benefit of the Lenders, and (iii) agrees that (a) neither it nor any subsidiary
of Sprint Corporation will challenge or contest that the Security Interests and
the Additional Security Interests are valid, enforceable and duly perfected
first priority security interests and liens in and to the Collateral and the
Additional Collateral, (b) neither it nor any subsidiary of Sprint Corporation
will argue that any such Security Interest or Additional Security Interest is
subject to avoidance, limitation or subordination under any legal or equitable
theory or cause of action, and (c) so long as the Management Agreement is in
effect, it will not sell, transfer or assign all or part of the Licenses that
Affiliate has the right to use; provided, however, that notwithstanding the
foregoing, a Sprint Party may at any time sell, transfer or assign all or part
of the Licenses that Affiliate has the right to use in accordance with a
transaction allowed under Section 17.15.5 of the Management Agreement, so long
as the buyer, transferee or assignee, as the case may be, agrees to be bound by
the terms of this Consent and Agreement as such terms relate to such Licenses.
Each Sprint Party acknowledges and agrees that (i) Sections 17.15.1 and
17.15.2 of the Management Agreement do not apply to the assignment of
Affiliate's rights under the Sprint Agreements to the Administrative Agent or
the Lenders under the Loan Documents or in connection with a transaction
permitted pursuant to this Consent and Agreement to any other Person pursuant to
the Loan Documents or to any other assignment in connection with any transaction
permitted pursuant to this Consent and Agreement and (ii) Section 17.15.3 of the
Management Agreement shall not apply to any Change of Control of Affiliate in
connection with the exercise by the Administrative Agent of any of its rights or
remedies under the Loan Documents, including without limitation in connection
with the sale of the partnership, membership or shareholder interests of
Affiliate to any Person or to any other Change of Control of Affiliate;
provided, however, Section 17.15.3 of the Management Agreement shall apply to
any such transaction if such transaction is not with the Administrative Agent or
the Lenders or is not a transaction permitted pursuant to this Consent and
Agreement. It is understood that any assignment described in this Section 1 to
the Administrative Agent or the Lenders is hereby consented to by the Sprint
Parties; provided, that any subsequent assignment by the Administrative Agent or
the Lenders shall be in accordance with the terms of this Consent and Agreement.
SECTION 2. Payments. Upon receipt of the Administrative Agent's written
instructions, each Sprint Party agrees to make all payments (if any) to be made
by it under the Sprint Agreements, subject to its rights of setoff or recoupment
with respect to such payments as permitted under Section 10.6 of the Management
Agreement, to Affiliate directly to the Administrative Agent, or otherwise as
the
3
Administrative Agent shall direct; provided, that during the period that Sprint
PCS is making such payments directly to the Administrative Agent or its designee
pursuant to this Section 2, Sprint PCS' setoff and recoupment rights under such
Section 10.6 shall not be limited to undisputed amounts. The Administrative
Agent hereby agrees that the Administrative Agent will not give any such written
instructions for it to receive such payments directly from a Sprint Party unless
an Event of Default has occurred under the Credit Agreement and is continuing.
Such written instructions to make payments directly to the Administrative Agent
shall be effective only so long as an Event of Default is continuing, and the
Administrative Agent will revoke such instructions promptly following the cure
of such Event of Default. Any payments made by any Sprint Party directly to, or
at the direction of, the Administrative Agent shall fully satisfy any obligation
of such Sprint Party to make payments to Affiliate under the Sprint Agreements
to the extent of such payments.
SECTION 3. Notice and Effect of Event of Default, Management Agreement
Breach and Event of Termination. The Administrative Agent agrees to provide to
Sprint PCS a copy of any written notice that Administrative Agent sends to
Borrower, promptly after sending such notice, that a Default or an Event of
Default has occurred and is continuing, and Sprint PCS agrees to provide to the
Administrative Agent a copy of any written notice that Sprint PCS sends to
Affiliate, promptly after sending such notice, that an Event of Termination or
an event that if not cured, or if notice is provided, will constitute an Event
of Termination (each of an Event of Termination and an event that if not cured
would constitute an Event of Termination, a "Management Agreement Breach") has
occurred. The Sprint Parties acknowledge that the Administrative Agent has
informed them that an Event of Termination constitutes an Event of Default under
the Loan Documents, and the Sprint Parties further acknowledge that the
Management Agreement does not prohibit Affiliate from curing such an Event of
Default.
SECTION 4. Event of Default without a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager Appointed.
Upon and during the continuation of an Event of Default when no
Management Agreement Breach as to which Sprint PCS has given the
Administrative Agent notice exists on the original date of occurrence
of such Event of Default, the Administrative Agent may, by prior
written notice to Sprint PCS, (i) allow Affiliate to continue to act as
the Manager under the Sprint Agreements, (ii) appoint Sprint Spectrum
to act as "Interim Manager" under the Sprint Agreements, or (iii)
appoint a Person other than Sprint Spectrum to act as Interim Manager
under the Sprint Agreements. If the Administrative Agent initially
allows Affiliate to continue to act as the Manager under the Sprint
Agreements, the Administrative Agent may later, during a continuation
of an Event of Default, remove the Affiliate as Manager and take the
action described above in clauses (ii) and (iii). The date on which a
Person begins serving as Interim Manager shall be the "Commencement
Date."
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim
Manager. If the Administrative Agent appoints Sprint Spectrum as
Interim Manager, within 14 days after its appointment Sprint Spectrum
shall accept the position or designate another Person (a "Sprint
Spectrum Designee") to act as Interim Manager under the Sprint
Agreements. The Administrative Agent shall accept Sprint Spectrum and
any Sprint Spectrum Designee that is then acting as an Other Manager
(other than Affiliate) to act as Interim Manager under the
4
Sprint Agreements. Any Sprint Spectrum Designee that is not an Other
Manager must be acceptable to the Administrative Agent, which
acceptance will not be unreasonably withheld. If, within 30 days after
the Administrative Agent gives Sprint Spectrum notice of its
appointment as Interim Manager, Sprint Spectrum or a Sprint Spectrum
Designee does not agree to act as Interim Manager, then the
Administrative Agent shall have the right to appoint an Administrative
Agent Designee as Interim Manager in accordance with Section 4(c). At
the discretion of the Administrative Agent, Sprint Spectrum or the
Sprint Spectrum Designee shall serve as Interim Manager for up to six
months from the Commencement Date.
Upon the expiration of its initial six-month period as Interim
Manager under the Sprint Agreements, Sprint Spectrum or the Sprint
Spectrum Designee will agree, at the written request of the
Administrative Agent, to serve as Interim Manager for up to six months
from such expiration date until the Administrative Agent gives Sprint
Spectrum or the Sprint Spectrum Designee at least 30 days' written
notice of its desire to terminate the relationship; provided, that the
extended period will be for 12 months rather than six months (for a
complete term of 18 months) in the event, as of the date of the
initial appointment, the aggregate number of pops that Affiliate and
all Other Managers have the right to serve under their respective
management agreements with the Sprint Parties is less than 40 million
(such six or 12 month period, the "Extension Period"). If Sprint
Spectrum's or the Sprint Spectrum Designee's term as Interim Manager
is so extended at the request of the Administrative Agent, then the
Administrative Agent agrees that Sprint Spectrum's or the Sprint
Spectrum Designee's right to be reimbursed by the Affiliate promptly
for all amounts previously expended by Sprint Spectrum or the Sprint
Spectrum Designee under Section 11.6.3 of the Management Agreement
(which expenditures were incurred in accordance with Section 9 of this
Consent and Agreement) shall no longer be subordinated to the
Obligations as provided in Section 9 in this Consent and Agreement,
and Sprint Spectrum's or the Sprint Spectrum Designee's right to be
reimbursed by Affiliate for any expenses it incurs pursuant to its
rights under Section 11.6.3 of the Management Agreement as provided in
the Management Agreement (which expenditures were incurred in
accordance with Section 9 of this Consent and Agreement) shall not be
subject to the subordination to the Obligations as provided in Section
9 of this Consent and Agreement; provided, that Sprint Spectrum or the
Sprint Spectrum Designee's right to be reimbursed for amounts expended
under Section 11.6.3 of the Management Agreement that exceed in an
aggregate amount 5% of Affiliate's partner's, shareholder's or
member's equity or capital account plus Affiliate's long-term debt
(i.e., notes that on their face are scheduled to mature more than one
year from the date issued), as reflected on Affiliate's books (the
"Reimbursement Limit") shall remain subordinated to the Obligations as
provided in Section 9 of this Consent and Agreement. Notwithstanding
any other provision in this Section 4(b) to the contrary, Sprint
Spectrum or the Sprint Spectrum Designee shall not be required to
continue to serve as Interim Manager during the Extension Period at
any time after 30 days following delivery by it to the Administrative
Agent of written notice that Sprint Spectrum or the Sprint Spectrum
Designee needs to expend amounts under Section 11.6.3 of the
Management Agreement that Sprint Spectrum or the Sprint Spectrum
Designee reasonably believes will not be reimbursed based on the
projected Collected Revenues for the remainder of the Extension Period
or reimbursed by the Lenders. If it becomes necessary for Sprint
Spectrum or the Sprint Spectrum Designee to expend any amount that it
believes will not be reimbursed or that exceeds the
5
Reimbursement Limit, Sprint Spectrum or the Sprint Spectrum Designee
is not required to incur such expense.
Upon the termination or expiration of the term of Sprint
Spectrum or the Sprint Spectrum Designee as Interim Manager, the
Administrative Agent shall have the right to appoint a successor
Interim Manager in accordance with Section 4(c).
(c) Administrative Agent Designee as Interim Manager. If the
Administrative Agent elects to appoint a Person other than Sprint
Spectrum to act as Interim Manager under the Sprint Agreements (an
"Administrative Agent Designee") as permitted under Sections 4(a)(iii)
and 4(b), such Administrative Agent Designee must (i) agree to serve as
Interim Manager for six months unless terminated earlier by Sprint PCS
because of a material breach by the Administrative Agent Designee of
the terms of the Sprint Agreements that is not timely cured or by the
Administrative Agent in its discretion, (ii) meet the applicable
"Successor Manager Requirements" set forth below in Section 13, and
(iii) agree to comply with the terms of the Sprint Agreements but will
not be required to assume the existing liabilities of Affiliate. In
the case of a proposed Administrative Agent Designee, Sprint PCS shall
provide to the Administrative Agent, within 10 Business Days after the
request therefor, a detailed description of all information reasonably
requested by Sprint PCS to enable Sprint PCS to determine if a
proposed Administrative Agent Designee satisfies the Successor Manager
Requirements. Sprint PCS agrees to inform Administrative Agent within
20 days after it receives such information respecting such proposed
Administrative Agent Designee from the Administrative Agent whether
such designee satisfies the Successor Manager Requirements. If Sprint
PCS does not so inform the Administrative Agent within such 20-day
period, then Sprint PCS shall be deemed to agree, for all purposes of
this Consent and Agreement, that such proposed designee satisfies the
Successor Manager Requirements. A Person that satisfies the Successor
Manager Requirements (or is deemed to satisfy such requirements)
qualifies under the Management Agreement to become a Successor
Manager, unless the Administrative Agent Designee materially breaches
the terms of a Sprint Agreement while acting as Interim Manager or no
longer meets the Successor Manager Requirements. The Administrative
Agent Designee may continue to serve as Interim Manager after the
initial six-month period at the Administrative Agent's discretion, so
long as the Administrative Agent Designee continues to satisfy the
Successor Manager Requirements and it does not materially breach the
terms of the Sprint Agreements. If the Administrative Agent Designee
materially breaches any Sprint Agreement while acting as Interim
Manager, then Sprint PCS and the Administrative Agent have the rights
set forth in Section 5; provided, that Sprint PCS may not allow
Affiliate to act as the Manager of the Sprint Agreements without the
Administrative Agent's consent.
SECTION 5. Event of Default Created by a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager Appointed.
Upon an Event of Default created by a Management Agreement Breach (so
long as at such time an Event of Default not created by a Management
Agreement Breach as to which Administrative Agent has given Sprint PCS
notice is not in existence), Sprint PCS may by prior written notice to
Administrative Agent (i) allow Affiliate to continue to act as the
Manager under the Sprint Agreements if approved by the Administrative
Agent, (ii) act as Interim Manager under the Sprint Agreements (in the
case of Sprint Spectrum) or appoint Sprint Spectrum as Interim Manager
(in the case of SprintCom), or (iii) appoint a Sprint Spectrum Designee
to act as Interim Manager under the
6
Sprint Agreements as provided in paragraph (b) below. If Sprint PCS
initially allows Affiliate to continue to act as the Manager under the
Sprint Agreements, Sprint PCS may later remove the Affiliate as
Manager and take the action described above in clauses (ii) and (iii).
The Administrative Agent shall have no right to appoint an Interim
Manager when an Event of Default is caused by a Management Agreement
Breach (unless an Event of Default not created by a Management
Agreement Breach is in existence), unless Sprint PCS elects not to act
as Interim Manager or to appoint a Sprint Spectrum Designee.
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim
Manager. If Sprint Spectrum acts as Interim Manager or designates a
Sprint Spectrum Designee to act as Interim Manager under the Sprint
Agreements, the Interim Manager shall serve as Interim Manager for up
to six months from the Commencement Date, at the discretion of Sprint
Spectrum. The Administrative Agent shall accept Sprint Spectrum and any
Sprint Spectrum Designee that is then acting as an Other Manager (other
than Affiliate) to act as Interim Manager under the Sprint Agreements.
Any Sprint Spectrum Designee that is not then acting as an Other
Manager must be acceptable to the Administrative Agent, which
acceptance will not be unreasonably withheld.
Upon the expiration of its initial six-month period as Interim
Manager under the Sprint Agreements, Sprint Spectrum or the Sprint
Spectrum Designee will agree to serve as Interim Manager for the
Extension Period until the Administrative Agent gives Sprint Spectrum
or the Sprint Spectrum Designee at least 30 days' written notice of its
desire to terminate the relationship. If Sprint Spectrum's or the
Sprint Spectrum Designee's term as Interim Manager is extended, then
the Administrative Agent agrees that Sprint Spectrum's or the Sprint
Spectrum Designee's right to be reimbursed by the Affiliate promptly
for all amounts previously expended by Sprint Spectrum or the Sprint
Spectrum Designee under Section 11.6.3 of the Management Agreement
(which expenditures were incurred in accordance with Section 9 of this
Consent and Agreement) shall no longer be subordinated to the
Obligations as provided in Section 9 of this Consent and Agreement, and
Sprint Spectrum's or the Sprint Spectrum Designee's right to be
reimbursed by the Affiliate for any expenses it incurs pursuant to its
rights under Section 11.6.3 of the Management Agreement as provided in
the Management Agreement (which expenditures were incurred in
accordance with Section 9 of this Consent and Agreement) shall not be
subject to subordination to the Obligations as provided in Section 9 of
this Consent and Agreement; provided, that Sprint Spectrum's or the
Sprint Spectrum Designee's right to be reimbursed for amounts expended
under Section 11.6.3 of the Management Agreement in an aggregate amount
that exceed the Reimbursement Limit shall remain subordinated to the
Obligations as provided in Section 9 of this Consent and Agreement.
Notwithstanding any other provision in this Section 5(b) to the
contrary, Sprint Spectrum or the Sprint Spectrum Designee shall not be
required to continue to serve as Interim Manager during the Extension
Period at any time after 30 days following delivery by it to the
Administrative Agent of written notice that Sprint Spectrum or the
Sprint Spectrum Designee needs to expend amounts under Section 11.6.3
of the Management Agreement that Sprint Spectrum or the Sprint Spectrum
Designee reasonably believes will not be reimbursed based on the
projected Collected Revenues for the remainder of the Extension Period
or reimbursed
7
by the Lenders. If it becomes necessary for Sprint Spectrum or the
Sprint Spectrum Designee to expend any amount that it believes will
not be reimbursed or that exceeds the Reimbursement Limit, Sprint
Spectrum or the Sprint Spectrum Designee is not required to incur such
expense.
Upon the termination or expiration of the term of Sprint
Spectrum or the Sprint Spectrum Designee as Interim Manager and with
the consent of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed), Sprint Spectrum shall have the right
to appoint a successor Interim Manager in accordance with Section 5(a).
(c) Administrative Agent Designee as Interim Manager.
Notwithstanding anything in paragraph (a) above to the contrary, if,
after Acceleration (as defined in Section 6(a) of this Consent and
Agreement) and within 30 days after Sprint PCS gives the Administrative
Agent notice of a Management Agreement Breach, Sprint Spectrum does not
agree to act as Interim Manager or does not obtain the consent of a
Sprint Spectrum Designee to act as Interim Manager under the Sprint
Agreements, or if Sprint Spectrum or the Sprint Spectrum Designee gives
the Administrative Agent notice of its resignation as Interim Manager
and Sprint Spectrum fails to appoint a successor in accordance with
Section 5(b) within 30 days after such resignation, the Administrative
Agent may appoint an Administrative Agent Designee to act as Interim
Manager. Such Administrative Agent Designee must (i) agree to serve as
Interim Manager for six months unless terminated earlier by Sprint PCS
because of a material breach by the Administrative Agent Designee of
the terms of the Sprint Agreements or by the Administrative Agent in
its discretion, (ii) meet the applicable Successor Manager
Requirements, and (iii) agree to comply with the terms of the Sprint
Agreements. In the case of a proposed Administrative Agent Designee,
Sprint PCS shall provide to the Administrative Agent, within 10
Business Days after the request therefor, a detailed description of
all information reasonably requested by Sprint PCS to enable Sprint
PCS to determine if a proposed Administrative Agent Designee satisfies
the Successor Manager Requirements. Sprint PCS agrees to inform
Administrative Agent within 20 days after it receives such information
respecting such proposed Administrative Agent Designee from the
Administrative Agent whether such designee satisfies the Successor
Manager Requirements. If Sprint PCS does not so inform the
Administrative Agent within such 20-day period, then Sprint PCS shall
be deemed to agree, for all purposes of this Consent and Agreement,
that such proposed designee satisfies the Successor Manager
Requirements. A Person that satisfies the Successor Manager
Requirements qualifies under the Management Agreement to become a
Successor Manager, unless the Administrative Agent Designee materially
breaches the terms of a Sprint Agreement while acting as Interim
Manager or no longer meets the Successor Manager Requirements. The
Administrative Agent Designee may continue to serve as Interim Manager
after the initial six-month period at the Administrative Agent's
discretion, so long as the Administrative Agent Designee continues to
satisfy the Successor Manager Requirements and it does not materially
breach the terms of the Sprint Agreements. If the Administrative Agent
Designee materially breaches any Sprint Agreement while acting as
Interim Manager, then Sprint PCS and the Administrative Agent have the
rights set forth in Section 5; provided, that Sprint PCS may not allow
Affiliate to act as the Manager of the Sprint Agreements without the
Administrative Agent's consent.
8
SECTION 6. Purchase and Sale of the Operating Assets. Upon the
occurrence and during the continuation of an Event of Default, the following
provisions shall govern the purchase and sale of the Operating Assets:
(a) Acceleration of the Obligations Under the Loan Documents.
In the event the Lenders accelerate the maturity of the Obligations
under the Loan Documents (an "Acceleration" and, the date thereof, an
"Acceleration Date"), the Administrative Agent shall give written
notice thereof to Sprint PCS. Upon receipt of notice of Acceleration,
Sprint PCS shall have the right, to which right Borrower and Affiliate,
by acknowledging this Consent and Agreement, expressly agree, to
purchase the Operating Assets from Borrower and Affiliate for an amount
equal to the greater of (i) 72% of the Entire Business Value (as
defined in the Management Agreement), valued in accordance with the
procedure set forth in Section 11.7 of the Management Agreement (with
the assumption that the deemed ownership of the Disaggregated License
under Section 11.7.3 of the Management Agreement includes the transfer
of the Sprint PCS customers as contemplated by Section 11.4 of the
Management Agreement), and (ii) the aggregate amount of the
Obligations. Sprint PCS shall, within 60 days of receipt of notice of
Acceleration, give Borrower, Affiliate and the Administrative Agent
notice of its intent to exercise the purchase right. In the event
Sprint PCS gives the Administrative Agent written notice of its intent
to purchase the Operating Assets, the Administrative Agent agrees that
it shall not enforce its Security Interests in the Collateral until the
earlier to occur of (i) expiration of the period consisting of 120 days
after the Acceleration Date (or such later date that shall be provided
for in the purchase agreement and acceptable to the Administrative
Agent in its discretion to close the purchase of the Operating Assets)
or (ii) receipt by Administrative Agent, Borrower and Affiliate from
Sprint PCS of written notice that Sprint PCS has determined not to
proceed with the closing of the purchase of the Operating Assets for
any reason. If after the 120-day period after the Acceleration Date,
Borrower or Affiliate receives any purchase offer for the Operating
Assets or the Pledged Equity that is confirmed in writing by Borrower
or Affiliate to be acceptable to Borrower or Affiliate, Sprint PCS
shall have the right, subject to the consent of the Administrative
Agent, to purchase the Operating Assets or the Pledged Equity, as the
case may be, on terms and conditions at least as favorable to Borrower
and Affiliate as the terms and conditions proposed in such offer so
long as within 14 Business Days after Sprint PCS's receipt of such
other offer Sprint PCS offers to purchase the Operating Assets or
the Pledged Equity and so long as the conditions of Sprint PCS's
offer and the amount of time it will take Sprint PCS to effect such
purchase is acceptable to Borrower, Affiliate and Administrative
Agent. Any such offer shall be confirmed in writing by the third
party offeror. In the event Sprint PCS exercises its rights under
this Section 6(a), (i) Borrower and Affiliate shall sell the Operating
Assets or the Pledged Equity to Sprint PCS, (ii) the Administrative
Agent and the Lenders shall consent to such purchase and sale provided
that the proceeds thereof shall be sufficient to repay the aggregate
amount of the Obligations, and (iii) Sprint PCS shall make all
payments to be made under this Section 6(a) to Administrative Agent
for its application against the Obligations and any additional
amounts shall be paid to Borrower or Affiliate or other owner of the
assets sold unless otherwise required by law or by this Consent and
Agreement. The purchase right of the Sprint Parties under this Section
6(a) shall be in substitution of the purchase rights of the Sprint
Parties under Section 11.6.1 of the Management Agreement. If Sprint PCS
purchases the Operating Assets or the Pledged Equity as permitted under
this Section 6(a), the Administrative Agent and the
9
Guarantors will release or assign their interests in the Collateral,
the Additional Collateral and the Guaranty Documents as described
below in Section 6(e) upon payment in full of the aggregate amount of
the Obligations and the termination of all Commitments to advance
credit under the Credit Agreement.
(b) Sale of Operating Assets to Third Parties. If the Sprint
Parties do not purchase the Operating Assets after an Acceleration as
described above in Section 6(a), the Collateral may be sold as follows:
(i) Sale to Successor Manager. The Collateral may be
sold by the Administrative Agent (in its sole discretion) in the
exercise of certain of its rights and remedies as a secured party under
the Loan Documents or by Borrower or Affiliate, at the discretion of
the Administrative Agent, to a person that satisfies the Successor
Manager Requirements. Sprint PCS shall provide to the Administrative
Agent, with a copy to Borrower, within 10 Business Days after the
request therefor, a detailed description of all information reasonably
requested by Sprint PCS to enable Sprint PCS to determine if a proposed
buyer satisfies the Successor Manager Requirements. Sprint PCS agrees
to inform the Administrative Agent and Borrower within 20 days after it
receives such information respecting such proposed buyer from the
Administrative Agent whether such designee satisfies the Successor
Manager Requirements. If Sprint PCS does not so inform the
Administrative Agent within such 20-day period, then Sprint PCS shall
be deemed to agree, for all purposes of this Consent and Agreement,
that such proposed designee satisfies the Successor Manager
Requirements. If the proposed buyer satisfies the Successor Manager
Requirements (or is deemed to satisfy such requirements) and wishes to
become a "Successor Manager", the buyer must agree to be bound by the
Sprint Agreements; provided, that buyer shall have no responsibility or
liability for any liability to any Person other than a Sprint Party and
Related Party of Sprint PCS arising out of Affiliate's operations prior
to the date buyer becomes bound by the Sprint Agreements. In such case
the Sprint Agreements shall remain in full force and effect with the
buyer as Successor Manager and this Consent and Agreement shall remain
in full force and effect for the benefit of the Successor Manager and
any Person providing senior secured debt financing to such Successor
Manager if required by such Person. Sprint PCS agrees, with respect to
any past failure of Affiliate to perform any obligation under the
Sprint Agreements, that the Successor Manager shall have the same
amount of time to perform such obligation that Affiliate had under the
Sprint Agreements, with the performance period commencing on the date
on which the buyer becomes a Successor Manager. Sprint PCS shall
permit the performance period set forth in the Management Agreement to
be extended for such period of time that Sprint PCS believes is
reasonable to allow Successor Manager to perform such unperformed
obligations.
(ii) Sale to Other than Successor Manager. The
Collateral may be sold pursuant to the exercise by the Administrative
Agent or the Lenders of their rights and remedies under the Loan
Documents or by Borrower or Affiliate, at the discretion of the
Administrative Agent (subject to requirements of applicable law) to a
person that does not satisfy the Successor Manager Requirements or to a
person that does not wish to become a Successor Manager, but only under
the following conditions:
10
(A) the Sprint Parties may terminate the
Sprint Agreements with such buyer following the closing of such
purchase (and the Administrative Agent and the buyer shall have no
rights thereto or thereunder with respect to events occurring after
the closing of such purchase);
(B) the buyer may purchase the Disaggregated
License as described below in Section 6(b)(iv) and with the
Disaggregated License having the characteristics described in the
definition thereof; and
(C) the purchase agreement with the buyer
contains the requirements set forth in Section 6(c) of this Consent
and Agreement.
(iii) Confidentiality Agreement. Before any potential
buyer is provided Confidential Information respecting the potential
purchase of any of the Collateral (which buyer shall be entitled to
receive), the potential buyer shall execute a confidentiality agreement
in the form attached as Exhibit A with such changes thereto as may be
reasonably requested by the parties to the agreement; provided,
however, in the event the potential buyer does not satisfy the
Successor Manager Requirements or has notified Borrower, Sprint PCS or
the Administrative Agent that it does not intend to be a Successor
Manager, Confidential Information that constitutes or relates to any
technical, marketing, financial, strategic or other information
concerning any of the Sprint Parties and that does not pertain to the
business of Affiliate shall not be permitted to be provided to such
potential buyer.
(iv) Sale of Disaggregated Licenses. Sprint PCS will
sell Disaggregated Licenses as follows when required under Section
6(b)(ii)(B):
(A) If a buyer wishes to purchase spectrum
in connection with its purchase of the Operating Assets, it will
purchase such spectrum from the Affiliate and Sprint PCS as follows.
The buyer will purchase from the Affiliate or its Related Parties any
licenses that Affiliate or such Related Parties own (the "Affiliate's
Licenses"). If the Affiliate's Licenses were not being used to operate
the Service Area Network, Sprint PCS will reimburse the buyer for the
microwave relocation costs incurred to clear the spectrum bought from
the Affiliate or its Related Parties that the buyer will need to use
to operate the Service Area Network as constructed on the date that
the buyer purchases the Operating Assets. If the buyer does not meet
the FCC requirements to buy the Affiliate's Licenses, the buyer will
seek a waiver from the FCC of the restrictions that prohibit the
buyer's ownership of such licenses. While any such FCC application is
pending and while the buyer is clearing the microwave from the
Affiliate's spectrum, the buyer may continue to use Sprint PCS'
Spectrum on which the Service Area Network operates. Sprint PCS will
sell its Disaggregated Licenses as described in Sections 6(b)(iv)(B),
6(b)(iv)(C) and 6(b)(iv)(D) only in those BTAs in which (1) the
Affiliate or its Related Parties do not own a license or the
obligation to sell the license is unenforceable, (2) the FCC will not
approve the transfer of the Affiliate's License to the buyer, or (3)
Sprint PCS determines that it does not wish to reimburse the buyer for
the cost of the microwave relocation.
11
(B) If the buyer, an entity with respect to
which such buyer directly or indirectly through one or more persons
owns the total voting power or at least 50% of the total voting power
or at least 50% of the total equity (a "controlled entity"), an entity
that directly or indirectly through one or more persons has a parent
entity that owns at least 50% of the voting power or at least 50% of
the total equity of both the buyer and the common controlled entity (a
"common controlled entity"), owns a license to provide wireless
service to at least 50% of the pops in a BTA with respect to which
such buyer proposes to purchase Spectrum (each a "Restricted Party"
with respect to such BTA), the buyer may buy only 5 MHZ of Spectrum
from Sprint PCS for such BTA.
(C) If the buyer is not a Restricted Party
for a BTA with respect to which such buyer proposes to purchase
Spectrum, and either does not satisfy the Successor Manager
Requirements (other than those set forth in Section 13(b) of this
Consent and Agreement) or does not wish to be a Successor Manager,
then the buyer may buy 5 MHZ, 7.5 MHZ or 10 MHZ of Spectrum from
Sprint PCS as the buyer determines in its sole discretion.
(D) If Sprint PCS sells a Disaggregated
License to a buyer as required under this Section 6(b)(iv), the buyer
must pay a price equal to the sum of (1) the original cost of the
applicable License to Sprint PCS pro rated on a pops and spectrum
basis, plus (2) the microwave relocation costs paid by Sprint PCS
attributable to clearing the Spectrum in the Disaggregated License,
plus (3) the amount of carrying costs to Sprint PCS attributable to
such original cost and microwave relocation costs from the date of
this Consent and Agreement to and including the date on which the
Disaggregated License is transferred to the buyer, based on a rate of
12 percent per annum.
(c) No Direct Solicitation of Customers. Upon the sale of the
Collateral or the Disaggregated License in accordance with this Consent
and Agreement pursuant to Section 6(b)(ii), then the Sprint Parties
agree to transfer to the buyer thereof the customers with a MIN
assigned to the Service Area covered by the Disaggregated License, but
Sprint PCS shall retain the customers of a national account and any
resellers who are then party to a resale agreement with Sprint PCS.
Each Sprint Party agrees to take all actions reasonably requested by
the buyer of the Collateral to fully transfer to such purchaser such
customers. Each Sprint Party agrees that neither it nor any of its
Related Parties will directly or indirectly solicit, for six months
after the date of transfer, the customers with a MIN assigned to the
Service Area covered by the Disaggregated License; provided, that
Sprint PCS retains the customers of a national account and any
resellers that have entered into a resale agreement with Sprint PCS,
Sprint PCS may advertise nationally, regionally and locally, and engage
direct marketing firms to solicit customers generally. If the buyer
continues to operate the purchased assets as a wireless network in the
same geographic area on a network that is technologically compatible
with Sprint PCS's network, the buyer and Sprint PCS shall each agree
to provide roaming services to the other (in the case of Sprint PCS,
the roaming services shall be provided to those customers of buyer in
the geographic area serviced by the Disaggregated License roaming
nationally and, in the case of buyer, the roaming services shall be
provided to those customers of Sprint PCS roaming in the geographic
area covered by the Disaggregated License) pursuant to a roaming
agreement to be entered into between buyer and Sprint PCS and to be
mutually agreed upon so long as such agreement is based on Sprint
PCS's then standard roaming
12
agreement used by Sprint PCS in the industry and the price that each
party shall pay the other party for roaming services provided to the
first party shall be a price equal to the lesser of: (1) MFN Pricing
provided by buyer to third parties roaming in the geographic area
serviced by the Disaggregated License; and (2) the national average
paid by Sprint PCS to third parties for Sprint PCS's customers to roam
in such third parties' geographic areas (including Other Managers).
Such obligations with respect to roaming shall continue until such
roaming agreement is terminated pursuant to its terms. The buyer shall
agree in writing that if it continues to operate the purchased assets
as a wireless network in the same geographic area on a network that is
technologically compatible with Sprint PCS's network, the buyer shall,
to the extent required by law, provide resale to Sprint PCS in the
geographic area covered by the Disaggregated License at the MFN
Pricing that buyer charges third parties who purchase resale from
buyer; provided, however, if buyer is not offering resale to any other
customers then pricing of resale provided to Sprint PCS shall be as
mutually agreed; and provided, further, however, whether or not buyer
is required by law to offer such resale, buyer shall offer such resale
(on the terms described in this sentence) to national customers of
Sprint PCS.
(d) Deferral of Portion of Collected Revenues. (i) Under
Section 10.1.1 of the Management Agreement, Sprint PCS retains 8% of
the Collected Revenues on a weekly basis (the "Retained Amount").
Following an Acceleration and for up to two years after such
Acceleration, Sprint PCS shall retain only one half of the Retained
Amount, and the remaining one half of the Retained Amount shall be
advanced to Affiliate (or, if so directed by the Administrative Agent
pursuant to Section 2 hereof, to the Administrative Agent) at the time
the weekly fee provided under Section 10.1.1 of the Management
Agreement is paid; provided, that after the first anniversary of the
Acceleration Date, Sprint PCS shall retain the entire Retained Amount
if Sprint PCS is not serving as the Interim Manager.
(ii) The portion of the Retained Amount advanced to
Affiliate (or, if so directed by the Administrative Agent pursuant to
Section 2 hereof, to the Administrative Agent) (the "Deferred Amount")
shall be evidenced by a promissory note executed by Affiliate
contemporaneously with this Consent and Agreement in the form of
Exhibit B hereto (the "Deferred Amount Note").
(A) Amounts will be drawn on the Deferred Amount Note
each time Sprint PCS advances a Deferred Amount to Affiliate
or the Administrative Agent.
(B) The Deferred Amount Note will bear interest at a
rate equal to the greatest of (I) the average interest rate of
Affiliate's secured debt, (II) the average rate of Affiliate's
unsecured debt, and (III) Sprint PCS' cost of capital.
(C) The Deferred Amount Note shall mature on the
earlier of (I) the date on which a Successor Manager is
qualified and assumes Affiliate's rights and obligations under
the Sprint Agreements, and (II) the date on which the
Operating Assets are purchased by a third-party buyer, or on
which a stock or other equity acquisition, merger,
consolidation or other transaction resulting in
13
the indirect transfer of the Operating Assets to a
third-party buyer (an "Indirect Transfer") is consummated.
(iii) In the event a Successor Manager assumes any of
the obligations of Affiliate under the Sprint Agreements, such
Successor Manager shall also assume the obligations under the Deferred
Amount Note. In the event that the Operating Assets are sold to a third
party buyer or an Indirect Transfer is consummated, the obligations of
Affiliate under the Deferred Amount Note shall be subordinate to
Borrower's obligations to its secured lenders.
(iv) After the two-year anniversary of the
Acceleration, or earlier if a Successor Manager is appointed or if
Sprint PCS is not serving as the Interim Manager, Sprint PCS will again
retain the full Retained Amount.
(e) Payment of Obligations; Release and Assignment of Rights.
The term "Obligations" means the amount equal to the Obligations, after taking
into consideration any amounts received from the Guarantors.
If Sprint PCS purchases the Operating Assets or the Pledged
Equity as permitted under Section 6(a) or Section 10, and the Obligations have
been paid in full and the Credit Agreement and all Commitments have terminated
or been assigned to a Sprint Party: (i) the Guarantors will have no right to any
amounts paid by Sprint PCS pursuant to such purchase (except to the extent such
purchase is pursuant to Section 6(a) and the amount paid by Sprint PCS exceeds
the amount of the Obligations and is not payable to other creditors of Borrower
or Affiliate); (ii) the Administrative Agent will, at the election of Sprint
PCS, either release or assign to Sprint PCS all Security Interests in the
Collateral and all Additional Security Interests in the Additional Collateral
and release or assign to Sprint PCS all rights related to the Loan Documents and
the Guaranty Documents and all payments under the Loan Documents and the
Guaranty Documents; and (iii) the Guarantors will, at the election of Sprint
PCS, release or assign to Sprint PCS, any and all rights they have against the
Collateral and the Additional Collateral or arising out of any payment to the
Administrative Agent or any Sprint Party with respect to the Loan Documents or
the Guaranty Documents.
SECTION 7. No Limits on Remedies. Nothing contained in this Consent and
Agreement shall limit any rights of the Administrative Agent or Lenders to
Accelerate. Except as expressly provided herein, nothing contained in this
Consent and Agreement shall limit any rights or remedies that the Administrative
Agent or the Lenders may have under the Loan Documents or applicable law. The
Administrative Agent may not sell, lease, assign, convey or otherwise dispose of
the Collateral other than as permitted under this Consent and Agreement.
SECTION 8. Rights and Obligations of Interim Manager. The Interim
Manager may collect a reasonable management fee for its services; provided, that
if Sprint Spectrum or a Related Party of Sprint PCS acts as Interim Manager,
such management fee shall not exceed the direct expenses relating to Sprint
Spectrum or such Related Party employees for the actual time spent by such
employees when performing the function of Interim Manager and Sprint Spectrum's
or such Related Party's out-of-pocket expenses. Such direct expenses shall
include such employees' salaries and benefits, and
14
the out-of-pocket and accrued expenses allocated to such employees. If Sprint
Spectrum is the Interim Manager, the management fee will be paid out of the 92%
Management Fee that Sprint PCS pays under the Management Agreement, and will be
in addition to the fees it receives under the Services Agreement. Sprint PCS
shall collect such management fee by setoff against the fees and any other
amounts payable to Affiliate under the Sprint Agreements. The Interim Manager
will be required to operate the Service Area Network in accordance with the
terms of the Sprint Agreements and will be subject to all of the requirements
and obligations of such agreements, but will not be required to assume the
existing liabilities of Affiliate.
SECTION 9. Rights to Cure. Neither the provisions of this Consent and
Agreement nor any action of either Administrative Agent or Sprint PCS shall
require either Administrative Agent, any Lender or Sprint PCS to cure any
default of Affiliate under the Sprint Agreements or to perform under the Sprint
Agreements, but shall only give it the option to do so except to the extent
otherwise required by this Consent and Agreement. Sprint PCS may exercise its
rights under Section 11.6.3 of the Management Agreement upon an Event of
Termination, whether such situation arises while Affiliate, Sprint Spectrum, an
Administrative Agent Designee or a Sprint Spectrum Designee is acting as Interim
Manager and notwithstanding any other provision of this Consent and Agreement;
provided, that the right to reimbursement for any expenses incurred in
connection with such cure shall be unsecured and until such time as the
Obligations have been paid in full in cash and all commitments to advance credit
under the Credit Agreement have terminated or expired, the Person or Persons
entitled thereto shall not receive such reimbursement, except as specifically
provided in Section 4(b) or Section 5(b) of this Consent and Agreement. Sprint
PCS shall not be permitted to deduct or setoff from its payments to Affiliate
any such amounts it is not entitled to receive under this Section and shall not
take any action of any type to attempt to collect such reimbursement and the
failure to be so reimbursed shall not constitute a Management Agreement Breach.
In the event that Sprint PCS receives any payments or distributions that it is
not entitled to receive under this Section, such payments shall be held in trust
for, and promptly turned over to, the parties entitled thereto. If Sprint PCS
has designated a third party to take action under Section 11.6.3 of the
Management Agreement, before taking any such action such third party shall enter
into an agreement with Administrative Agent providing that such third party
agrees to the provisions of this Section 9 as if it were a party hereto. Until
such time as the Obligations have been paid in full in cash and all commitments
to advance credit under the Credit Agreement have terminated or expired, Sprint
PCS shall not be entitled to exercise any other remedies under the Sprint
Agreements, including, without limitation, the remedy of terminating the Sprint
Agreements (except to the extent permitted under Sections 6(b)(ii)(A) and 12 of
this Consent and Agreement) or the remedy of withholding any payment set forth
in Section 10 of the Management Agreement (subject to Sprint PCS's rights of
setoff or recoupment with respect to such payments as permitted under Sections
2, 4(b) and 5(b) of this Consent and Agreement). Until such time as the
Obligations have been paid in full in cash and all commitments to advance credit
under the Credit Agreement have terminated or expired, notwithstanding anything
to the contrary contained in Section 2.3 of the Management Agreement, in no
event shall any Person other than Affiliate or a Successor Manager be a manager
or operator for Sprint PCS with respect to the Service Area and neither Sprint
PCS nor any of its Related Parties shall own, operate, build or manage another
wireless mobility communications network in the Service Area, except to the
extent provided in Sections 2.3(a), (b), (c) or (d) of the Management Agreement
and except to the extent that the Sprint Agreements are terminated in accordance
with Section 6(b)(ii)(A) of this Agreement. The Administrative Agent
acknowledges and agrees that Sprint PCS shall also have the right to cure an
Event of Default or to assist Affiliate in curing an Event of Default but only
to the
15
extent Borrower has the right to so cure under the Loan Documents, as applicable
(it being understood that the act of Sprint PCS curing an Event of Default shall
not constitute an independent Event of Default unless the act itself would
otherwise constitute a Default (e.g. a sale of assets not otherwise permitted by
the Loan Documents)), including but not limited to Sprint PCS's providing
Borrower the funds necessary to operate or meet certain financial covenants in
the Loan Documents. The Administrative Agent shall have the right to cure any
Management Agreement Breach.
SECTION 10. Sprint PCS's Right to Purchase Obligations, Operating
Assets, or Pledged Equity. (a) Following the Acceleration Date and until the
60-day anniversary of the filing of a bankruptcy petition by or with respect to
Borrower or Affiliate, Sprint PCS shall have the right to purchase the
Obligations under, and as defined in, the Credit Agreement, by repaying the
Obligations in full in cash. In the event that Sprint PCS purchases the
Obligations within 60 days immediately following the earlier of (i) the
Acceleration Date and (ii) the date of the filing of a bankruptcy petition by or
with respect to Borrower or Affiliate, Sprint PCS may in lieu of purchasing the
total amount of the Obligations, purchase all Obligations other than the accrued
interest with respect thereto for a purchase price equal to the amount of the
Obligations other than such accrued interest and any fees and expenses that are
unreasonable, in which case, such accrued interest and unreasonable fees and
expenses shall remain due and owing by Affiliate to the Lenders.
(b) In the event that the Administrative Agent acquires the
Operating Assets or takes title to the Pledged Equity, Sprint PCS shall have the
right to purchase the Operating Assets or the Pledged Equity from the
Administrative Agent during the limited period of time provided in and otherwise
in accordance with this Section 10(b) by paying to the Administrative Agent in
cash an amount equal to the sum of the aggregate amount paid (by credit against
the Obligations or otherwise) by the Administrative Agent or the Lenders for the
Operating Assets or Pledged Equity, as the case may be, plus the aggregate
amount of any remaining unpaid Obligations. Administrative Agent shall give
Sprint PCS notice of any acquisition of the Operating Assets or the Pledged
Equity by the Administrative Agent promptly following the date of final
consummation of such acquisition (the "Acquisition Notice"). Sprint PCS shall,
within 60 days of receipt of a valid Acquisition Notice, give the Administrative
Agent (and Borrower in the case of a purchase of the Pledged Equity) notice of
its intent to exercise its purchase right under this Section 10(b). In the event
Sprint PCS gives the Administrative Agent written notice of its intent to
purchase the Operating Assets or the Pledged Equity, the Administrative Agent
agrees that it shall provide Sprint PCS the right to purchase the Operating
Assets or Pledged Equity, as the case may be, until the earlier to occur of (i)
expiration of the period consisting of 120 days after Sprint PCS' receipt of a
valid Acquisition Notice (or such later date that shall be provided for in the
purchase agreement and acceptable to the Administrative Agent in its sole
discretion to close the purchase of the Operating Assets or Pledged Equity) or
(ii) receipt by Administrative Agent from Sprint PCS of written notice that
Sprint PCS has determined not to proceed with the closing of the purchase of the
Operating Assets or Pledged Equity. If Sprint PCS at any time purchases the
Operating Assets or Pledged Equity as permitted under this Section 10, the
Administrative Agent and the Guarantors will release or assign their interest in
the Collateral, the Loan Documents and the Guaranty Documents as described in
Section 6(e) upon payment in full of the aggregate amount of the Obligations.
Notwithstanding the foregoing, in the event that a bankruptcy petition is filed
by or with respect to Affiliate, Sprint PCS shall again have the right to
purchase the Operating Assets or the Pledged Equity from the Administrative
Agent by repaying the Obligations in
16
full in cash, by giving the Administrative Agent notice of its intent to
exercise such purchase right no later than 60 days following the date of filing
of such bankruptcy petition.
(c) If at any time during the period described in Section
10(a) or 10(b) above or thereafter the Administrative Agent receives any
purchase offer for the Operating Assets, the Pledged Equity or the Obligations,
as applicable, that is acceptable to the Administrative Agent, the
Administrative Agent shall exercise reasonable efforts to obtain the consent of
the offeror to deliver a copy of such offer to Sprint PCS and Sprint PCS shall
have the right to purchase the Operating Assets, the Pledged Equity or the
Obligations, as applicable, on terms and conditions at least as favorable to the
Administrative Agent as the terms and conditions proposed in such offer so long
as within 14 Business Days after Sprint PCS's receipt of such other offer Sprint
PCS offers to purchase the Operating Assets, the Pledged Equity or the
Obligations, as applicable, and so long as the conditions of Sprint PCS's offer
and the amount of time it will take Sprint PCS to effect such purchase is
acceptable to the Administrative Agent and the Lenders.
(d) If Sprint PCS at any time purchases the entirety of the
Obligations as provided in this Section 10, the Administrative Agent shall
assign and transfer or cause the Lenders to assign and transfer to Sprint PCS
all rights and interests in, to and under all of the Loan Documents, including
but not limited to all security interests, liens, financing statements,
guaranties (including the Guaranty Documents) and other credit enhancements
related to such Loan Documents, and all rights and claims thereunder
(collectively referred to as the "Loan Document Rights"). If Sprint PCS
purchases all Obligations other than accrued interest (as permitted in the
second sentence of Section 10(a) above), then the Administrative Agent shall
assign and transfer or cause the Lenders to assign and transfer to Sprint PCS
all Loan Document Rights, except that if Sprint PCS receives payment in full of
all Obligations due under the Loan Documents (including the amount it did not
pay the Administrative Agent, as permitted in the second sentence of Section
10(a) above), it shall pay such amount to the Administrative Agent unless the
Administrative Agent has already received payment of such amount. If Sprint PCS
at any time purchases the entirety or less than all of the Obligations, the
Guarantors will release any and all rights they have against the Collateral or
arising out of any payment to the Administrative Agent or any Sprint Party with
respect to the Loan Documents or their Guaranty Documents.
SECTION 11. Foreclosure. Upon the Administrative Agent or any Lender or
any other Person that meets the Successor Manager Requirements acquiring the
Operating Assets and the Sprint Agreements, then such Person shall be entitled
to exercise any and all rights of Affiliate under the Sprint Agreements in
accordance with the terms of the Sprint Agreements and each Sprint Party will
thereupon comply in all respects with such exercise by such Person and perform
its obligations under the Sprint Agreements and this Consent and Agreement for
the benefit of such Person. Each Sprint Party agrees that the Administrative
Agent or any Lender may (but shall not be obligated to), subject to and in
accordance with the terms of this Consent and Agreement, assign its rights and
interests acquired in the Operating Assets and the Sprint Agreements to any
buyer or transferee thereof and, in the event the buyer wishes to become a party
to the Sprint Agreements and such buyer satisfies the Successor Manager
Requirements, such buyer shall be bound by the Sprint Agreements; provided, that
buyer shall have no responsibility or liability to any Person other than a
Sprint Party and a Related Party of a Sprint Party arising out of Affiliate's
operations prior to the date buyer becomes bound by the Sprint Agreements. In
such case the Sprint Agreements shall remain in full force and effect with
17
the buyer as Successor Manager and this Consent and Agreement shall remain in
full force and effect for the benefit of the Successor Manager and any Person
providing senior secured debt financing to such Successor Manager if required by
such Person. Sprint PCS agrees, with respect to any past failure of Affiliate to
perform any obligation under the Sprint Agreements, that the Successor Manager
shall have the same amount of time to perform such obligation that Affiliate had
under the Sprint Agreements, with the performance period commencing on the date
on which the buyer becomes a Successor Manager. Sprint PCS shall permit the
performance period set forth in the Management Agreement to be extended for such
period of time that Sprint PCS believes is reasonable to allow Successor Manager
to perform such unperformed obligations.
SECTION 12. Trademarks and Service Marks. In the event the
Administrative Agent forecloses on its security interest in the License
Agreements and transfers the License Agreements to a Person who does not meet
the Successor Manager Requirements, then Sprint PCS shall have the right to
terminate the License Agreements and cause the Administrative Agent to release
its security interest in the License Agreements immediately prior to such
transfer.
SECTION 13. Interim Manager and Successor Manager Requirements. To
qualify as an Interim Manager or a Successor Manager, the Person must satisfy
each of the following "Successor Manager Requirements," as applicable:
(a) The Person must not during the three-year period
immediately preceding the date of determination have materially
breached any material agreement with Sprint Spectrum or its Related
Parties that resulted in the exercise of a termination right or in the
initiation of judicial or arbitration proceedings;
(b) The Person must not be one of the Persons identified on
Schedule 13 (a "Schedule 13 Person"); provided, that no Other Manager
under any Sprint PCS Management Agreement may be identified on Schedule
13;
(c) In the case of a Successor Manager, the Person must meet a
reasonable Person's credit criteria (taking into consideration the
circumstances), it being understood that such criteria is satisfied if
the financial projections contained in the business plan such Person
submits to Sprint PCS shows the ability to service its indebtedness and
meet the build-out requirements contained in the Build-out Plan; and
(d) The Person must agree to be bound by the terms of the
Sprint Agreements as if an original party thereto; provided, in the
case of an Interim Manager, the Person must also execute a separate
confidentiality agreement in the form attached as Exhibit A with such
changes thereto as may be reasonably requested by the parties to the
agreement, but the Person is not required to assume the existing
liabilities of the Affiliate.
The Administrative Agent, each Lender and each of their wholly-owned
subsidiaries or entities who wholly-own such entities shall be deemed to satisfy
Sections 13(a), (b) and (c) of the preceding "Successor Management
Requirements".
18
SECTION 14. Management Agreement. Sprint PCS agrees that it will not
exercise its right under the Management Agreement to purchase the Operating
Assets or to sell the Disaggregated License to Affiliate if before, or after
giving effect to such exercise, there would exist a Default or Event of Default
under the Credit Agreement, unless Sprint PCS pays the aggregate amount of the
Obligations as a condition of the exercise of such right and the Credit
Agreement shall have been terminated in connection with such payment. Sprint PCS
agrees that until the Obligations have been paid in full in cash and all
commitments to advance credit under the Credit Agreement have terminated or
expired, a failure to pay any amount by any Related Party of the Affiliate under
any agreement with Sprint PCS or any of its Related Parties (other than the
Management Agreement, the Services Agreement or the License Agreements) shall
not constitute a Management Agreement Breach for any purpose. Subject to
regulatory approval in connection with any such sale, Sprint PCS agrees that it
shall always maintain the ability to sell the Disaggregated License in
accordance with this Consent and Agreement. Sprint PCS shall own at least 10 MHZ
of Spectrum in the Service Area until the first to occur of the following
events: (i) the Obligations have been paid in full in cash and all commitments
to advance credit under the Credit Agreement have terminated or expired, (ii)
the sale by Sprint PCS of the Spectrum pursuant to this Consent and Agreement
shall be effected, (iii) the sale of the Operating Assets pursuant to this
Consent and Agreement, and (iv) the termination of the Management Agreement.
Sprint PCS acknowledges that the financing provided to Borrower pursuant to the
Loan Documents and the proposed capital contribution from Alamosa PCS Holdings,
Inc. ("Alamosa Holdings"), the sole stockholder of Borrower, following its
initial public offering of common stock contemplated by the registration
statement of Borrower filed with the Securities and Exchange Commission on
October 29, 1999, as amended, comply with Section 1.7 of the Management
Agreement, as amended by Addendum II of the Management Agreement ("Section
1.7"), and that Section 11.3.6 of the Management Agreement shall no longer be
applicable with respect to such financing so long as Borrower makes capital
contributions to Affiliate in the amounts and by the deadlines set forth in
Section 1.7. Notwithstanding anything to the contrary contained in Section 12.2
of the Management Agreement, the Administrative Agent, the Lenders, and any
Successor Manager or buyer of the Operating Assets or Disaggregated License
shall be permitted to disclose Confidential Information (as defined in the
Management Agreement) (i) to the extent required by law, rule or regulation,
(ii) to any regulator or any regulatory body regulating such entity, (iii) to
any rating agency in connection with requirements applicable to such Person and
(iv) to the lawyers and accountants for any such Persons.
SECTION 15. Administrative Agent and Eligible Assignees. The
Administrative Agent and each Lender must be an Eligible Assignee. "Eligible
Assignee" shall mean and include a commercial bank, financial institution, other
"accredited investor" (as defined in Regulation D of the Securities Act) other
than individuals, or a "qualified institutional buyer" as defined in rule 144A
of the Securities Act; provided, that prior to the 61st day after the filing of
a bankruptcy petition by or with respect to Affiliate in no event may any Person
that is engaged in or that controls, is controlled by or is under common control
with any Person engaged in, the telecommunications service business in the
United States (other than Sprint Corporation and its subsidiaries), be an
Eligible Assignee, it being understood that no small business investment
corporation that is ultimately owned by an Eligible Assignee that is subject to
Regulation Y shall be deemed to be controlled by or under common control with
such Eligible Assignee; and provided further, that after the filing of such
bankruptcy petition in no event may a Schedule 13 Person be an Eligible
Assignee.
19
SECTION 16. Sprint Party Representations. Each Sprint Party represents
and warrants to the Administrative Agent, as of the Closing Date (a) its
execution, delivery and performance of this Consent and Agreement has been duly
authorized by all necessary corporate and partnership action, and does not and
will not require any further consents or approvals that have not been obtained,
or violate any provision of any law, regulation, order, judgment, injunction or
similar matters or materially breach any agreement presently in effect with
respect to or binding on it; provided, that the transfer of Spectrum as
contemplated under this Consent and Agreement will require regulatory approval
(which each Sprint Party agrees to use its commercially reasonable efforts to
obtain); (b) this Consent and Agreement is a legal, valid and binding obligation
of such Person enforceable against it in accordance with its terms, except that
(i) such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be limited by
equitable defenses and by the discretion of the court before which any
proceeding may be brought; (c) the Sprint Agreements are in full force and
effect and have not been amended, supplemented or modified; (d) as of the date
of execution hereof, to the knowledge of the Sprint Parties, no Event of
Termination has occurred and is continuing (without regard to any requirement of
the delivery of written notice necessary to the occurrence of an Event of
Termination under Section 11.3 of the Management Agreement); (e) on the date the
Management Agreement was executed Sprint PCS owned, and on the date hereof
Sprint PCS owns, 10 MHz or more of Spectrum in the Service Area; and (f) the
only existing agreements or arrangements between Borrower or Affiliate, on the
one hand, and Sprint Corporation or any of its subsidiaries, on the other hand,
are the Management Agreement, the Services Agreement, the License Agreements,
this Consent and Agreement and the Deferred Amount Note.
SECTION 17. Administrative Agent Representations. The Administrative
Agent represents and warrants to Sprint PCS, as of the Closing Date (a) its
execution, delivery and performance of this Consent and Agreement has been duly
authorized by all necessary corporate action, and does not and will not require
any further consents or approvals that have not been obtained, or violate any
provision of any law, regulation, order, judgment, injunction or similar matters
or materially breach any agreement presently in effect with respect to or
binding on it; (b) this Consent and Agreement is a legal, valid and binding
obligation of the Administrative Agent enforceable against it in accordance with
its terms, except that (i) such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally, and (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be limited by equitable defenses and by the discretion of the court
before which any proceeding may be brought; (c) at the time of the execution
hereof, Administrative Agent is the only Lender; (d) as of the date of execution
hereof, to the knowledge of the Administrative Agent, no Event of Default has
occurred and is continuing; and (e) the Guaranty Documents have been duly
executed and delivered to the parties to such agreements.
SECTION 18. Successors and Assigns. This Consent and Agreement shall be
binding upon the successors and assigns of the parties hereto and shall inure,
together with the rights and remedies of the parties hereunder, to the benefit
of their respective successors and assigns. In the event the Sprint PCS Network
is sold in accordance with the Management Agreement, the buyer thereof will
assume the obligations of the Sprint Parties hereunder and under all the other
Sprint Agreements other than the Sprint Trademark and Service Xxxx License
Agreement; provided, however, the buyer of the
20
Sprint PCS Network shall enter into an agreement with Affiliate on substantially
the same terms as the Sprint Trademark and Service Xxxx License Agreement with
respect to such buyers' trademarks, service marks, brands, etc. In the event a
Successor Manager becomes a party to the Sprint Agreements as provided in this
Agreement, this Consent and Agreement shall remain in full force and effect for
the benefit of the Successor Manager and any Person providing senior secured
debt financing to such Successor Manager if required by such Person.
SECTION 19. Amendment. Neither this Consent and Agreement nor any
provision herein may be waived except pursuant to an agreement or agreements in
writing entered into by Sprint PCS, the Administrative Agent, Borrower and
Affiliate, and neither this Consent and Agreement nor any provision herein may
be amended or modified except pursuant to an agreement or agreements in writing
entered into by Sprint PCS, the Administrative Agent, Borrower and Affiliate;
provided, however, that no consent of Borrower or Affiliate shall be necessary
for any amendment or modification to this Consent and Agreement made pursuant to
or in accordance with Section 25 hereof, unless such amendment or modification
could reasonably be expected to be materially adverse to Borrower or Affiliate.
The Administrative Agent and each Lender (and its successors and assigns) shall
be bound by any modification or amendment authorized by this Section 19. No
amendment or waiver or effective amendment or waiver entered into in violation
of this Section 19 shall be valid.
SECTION 20. APPLICABLE LAW. THIS CONSENT AND AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 21. Notices. Notices and other communications provided for in
this Consent and Agreement shall be in writing and shall be delivered by hand or
overnight courier service, mailed or sent by telecopy, as follows:
(a) if to Sprint PCS, to it at:
Sprint Spectrum L.P.
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
21
(b) if to the Administrative Agent, to it at:
Nortel Networks Inc.
GMC 991 15 A40
0000 Xxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Director,
Customer Finance North America
And Xxxxxxx X. Xxxx, Esq.
Nortel Networks Inc.
P. O. Xxx 000000
Xxxxxxxxxx, Xxxxx 75083-3858
Mail Stop 04D/02/A40
Telephone No.: 972) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx Xxx, Loan Administration
with a copy to:
Jenkens & Xxxxxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
(c) if to Borrower, to it at:
Alamosa PCS, Inc.
000 Xxxx Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxxx, Xxxxxx & Xxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
22
Attention: Xxxx XxXxxxxxx, Xx.
(d) if to Affiliate, to it at:
Texas Telecommunications, LP
0000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx
Chairman of the Board of Managers
All notices and other communications given to any party hereto in accordance
with the provisions of this Consent and Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy, or on the date five (5) business days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 21 or in
accordance with the latest unrevoked direction from such party given in
accordance with this Section 21.
SECTION 22. Counterparts. This Consent and 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.
SECTION 23. Severability. Any provision of this Consent and Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provision with valid provisions the economic effect of which is as
close as possible to that of the invalid, illegal or unenforceable provision.
SECTION 24. Termination. This Consent and Agreement shall terminate and
be of no further force and effect upon the first to occur of the following: (i)
the Obligations are paid in full and the Credit Agreement and all Commitments
are terminated; and (ii) the Sprint Agreements terminate.
SECTION 25. Amendments to Form Consent and Agreement. If Sprint PCS
modifies or amends the form of Consent and Agreement it enters into with another
lender in connection with a loan to an Other Manager that is syndicated or
intended to be syndicated (i.e., a loan sold or participated, or intended to be
sold or participated, in whole or in part to at least three financial
institutions or investment funds) and where the pops in the Service Area of the
Other Manager exceed 5 million, then Sprint PCS agrees to give the
Administrative Agent the right to so amend this Consent and Agreement, subject
to the provisions of clauses (a), (b) and (c) below. Sprint PCS agrees to give
the Administrative Agent written notice of such modifications and amendments
and, at the request of Administrative Agent, to amend this Consent and Agreement
in the same manner; provided, that: (a) Sprint PCS will not modify this Consent
and Agreement to incorporate changes made for the benefit of a lender because of
circumstances related to a particular Other Manager, subject to the limitations
23
set forth below; (b) the Administrative Agent must agree to make all (or none)
of the changes made for the other lender and the Other Manager, unless Sprint
PCS agrees to allow the Administrative Agent to make only some of the changes;
and (c) if such amendment to this Consent and Agreement could reasonably be
expected to be materially adverse to Borrower or Affiliate, such amendment shall
not be made without the prior written consent of Borrower and Affiliate
(although the Borrower's and Affiliate's withholding of such consent will result
in none of the changes being made to this Consent and Agreement because of the
requirements of clause (b) above).
For purposes of subsection (a) in the preceding paragraph, Sprint PCS
will not deem the following changes to be made because of circumstances related
to a particular Other Manager: (i) any form of recourse to Sprint PCS or other
similar form of credit enhancement; (ii) any change in Sprint PCS's right to
purchase Operating Assets or Obligations; (iii) any change in the Affiliate's,
Administrative Agent's or Lenders' right to sell the Collateral or purchase the
Disaggregated License (including, without limitation, any rights of first
refusal and the purchase price of the Disaggregated License); (iv) any change in
the ownership status, terms of usage or amount of Disaggregated License utilized
by Affiliate; (v) any material change in the flow of revenues between Sprint
Spectrum and Affiliate excluding changes related to the pricing of direct or
indirect fees, but including any subordination of direct or indirect fees or
other amounts or costs due under the Sprint Agreements or hereunder to Sprint
PCS; (vi) any change to obligations required to be assumed by, or qualifications
for, any Interim or Successor Manager, including changes in the time period or
terms under which Sprint PCS agrees to remain as Interim Manager; (vii) any
changes in confidentiality, non-compete or Eligible Assignee language, including
changes to Schedule 13; (viii) any clarifications of FCC compliance issues; (ix)
the issuance of legal opinions; (x) any change in the circumstances under, or
procedures by which, an Interim Manager or Successor Manager is appointed; or
(xi) any change to this Section 25.
[The remainder of this page is intentionally left blank.]
24
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Agreement to be executed by their respective authorized officers as of the date
and year first above written.
SPRINT SPECTRUM L.P.
By: /S/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
SPRINTCOM, INC.
By: /S/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
WIRELESSCO, L.P.
By: /S/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
XXX COMMUNICATIONS PCS, L.P.
By: /S/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
XXX PCS LICENSE, LLC
By: /S/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx
Senior Vice President and Chief Business
Development Officer - Sprint PCS
25
SPRINT COMMUNICATIONS COMPANY, L.P.
By: /s/ Xxx X. Xxxxxx
-------------------------------
Xxx X. Xxxxxx
Vice President - Law
NORTEL NETWORKS INC.
for itself and as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
Director, Customer Service
26
Acknowledgment, Consent and Agreement of Borrower and Affiliate
Each of the undersigned, Borrower and Affiliate, (i) has reviewed this
Consent and Agreement, (ii) acknowledges, consents and agrees to the terms and
provisions of this Consent and Agreement, and (iii) agrees to be bound by the
terms and provisions of this Consent and Agreement, including, without
limitation, such terms and provisions that affect Borrower and Affiliate, its
assets and rights under the Management Agreement. Without limiting the
generality of the foregoing, Borrower and Affiliate each acknowledges and agrees
that : (i) the right to appoint an Interim Manager is intended to allow the
right and ability to preserve and/or protect the Collateral or its value and the
Service Area Network or its value and (ii) in the event of the sale of the
Collateral by the Administrative Agent, the value of the Collateral may be
dependent on the right of the Person purchasing the Collateral to assume or be a
party to the Sprint Agreements and acknowledges that any sale of the Collateral
in accordance with Sections 6 and 10 hereof, the other provisions of this
Consent and Agreement and, to the extent not inconsistent with this Consent and
Agreement, the Loan Documents, is agreed to be a commercially reasonable
disposition of the Collateral by Administrative Agent.
Borrower also agrees as follows:
1. It will not use the proceeds from any of the Loan
Documents or from any other loan or extension of
credit to which this Consent and Agreement relates
for any purpose other than to contribute or loan such
proceeds to Affiliate or to Alamosa Wisconsin Limited
Partnership.
2. Borrower agrees to promptly give Sprint PCS a copy of
any notice it receives from the Administrative Agent
or any Lender, and a copy of any notice Borrower
gives to Administrative Agent or any Lender.
ALAMOSA PCS, INC.
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx, President
TEXAS TELECOMMUNICATIONS LP
a Texas limited partnership
By ALAMOSA DELAWARE GP, LLC
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name:
Title:
27
Acknowledgment, Consent and Agreement of Affiliate's Partners
The undersigned, being all of the partners of Affiliate, each agrees
that such partner (i) has reviewed this Consent and Agreement, (ii)
acknowledges, consents and agrees to the terms and provisions of this Consent
and Agreement, particularly as they modify the price (as set forth in the
Management Agreement) pursuant to which Sprint PCS may purchase the Operating
Assets under Sections 6 and 10 hereof, and as they require the Borrower,
Affiliate and their Related Parties to sell Affiliate's Licenses under Section 6
hereof, and (iii) agrees to take such action as is necessary to cause the
Borrower, Affiliate and their Related Parties to comply with the terms and
provisions of this Consent and Agreement.
ALAMOSA DELAWARE GP, LLC
a Delaware limited liability company,
as the sole general partner of Affiliate
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name:
Title:
ALAMOSA PCS, INC.
a Delaware corporation,
as the sole limited partner of Affiliate
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, President
28
Acknowledgment, Consent and Agreement of Guarantors
Each of the undersigned Guarantors (i) has reviewed this Consent and
Agreement, (ii) acknowledges, consents and agrees to the terms and provisions of
this Consent and Agreement, particularly as they modify the price (as set forth
in the Management Agreement) pursuant to which Sprint PCS may purchase the
Operating Assets under Sections 6 and 10 hereof, and as they require the
Borrower, Affiliate and their Related Parties to sell Affiliate's Licenses under
Section 6 hereof, and (iii) agrees to be bound by the terms and provisions of
this Consent and Agreement and to take such action as is necessary to cause
Affiliate and its Related Parties to comply with the terms and provisions of
this Consent and Agreement. Without limiting the generality of the foregoing,
each of the Guarantors acknowledges and agrees that: (i) the right to appoint an
Interim Manager is intended to allow the right and ability to preserve and/or
protect the Collateral or its value and the Service Area Network or its value
and (ii) in the event of the sale of the Collateral by the Administrative Agent,
the value of the Collateral may be dependent on the right of the Person
purchasing the Collateral to assume or be a party to the Sprint Agreements and
acknowledges that any sale of the Collateral in accordance with Sections 6 and
10 hereof, the other provisions of this Consent and Agreement and, to the extent
not inconsistent with this Consent and Agreement, the Loan Documents, is agreed
to be a commercially reasonable disposition of the Collateral by Administrative
Agent.
ALAMOSA PCS HOLDINGS, INC.
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, President
ALAMOSA DELAWARE GP, LLC
a Delaware limited liability company
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name:
Title:
TEXAS TELECOMMUNICATIONS LP
a Texas limited partnership
By ALAMOSA DELAWARE GP, LLC
a Delaware limited liability company,
as the sole general partner
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name:
Title:
00
XXXXXXX XXXXXXXXX XX, LLC
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxx, President
ALAMOSA WISCONSIN LIMITED PARTNERSHIP
By Alamosa Wisconsin GP, LLC, its General Partner
By /s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx, President
30
