EXHIBIT 4
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EXCHANGE AGREEMENT
This Exchange Agreement (the "AGREEMENT"), dated as of January 31,
2007, is made by and among:
(a) The undersigned holders (each, a "CONSENTING NOTEHOLDER" and
collectively the "CONSENTING NOTEHOLDERS") of certain 9-3/8%
Senior Subordinated Notes due 2011 (the "9-3/8% NOTES")
and/or 8-3/4% Senior Subordinated Notes due 2011 (the "8-3/4%
NOTES" and together with the 9-3/8% Notes, the "NOTES"), in
each case issued by SunCom Wireless, Inc. (f/k/a Triton PCS,
Inc.) ("WIRELESS"); and
(b) SunCom Wireless Holdings, Inc. ("HOLDINGS"), the indirect
parent of Wireless, Wireless and SunCom Wireless Investment
Company, LLC ("INVESTCO"), the direct subsidiary of Holdings
and direct parent of Wireless (each of the foregoing,
together with the Consenting Noteholders, a "PARTY", and
collectively, the "PARTIES").
RECITALS
WHEREAS, Holdings, through its subsidiaries, is a leading provider of
wireless communications services in the southeastern United States and in
certain territories of the United States;
WHEREAS, Investco, upon consultation with Holdings, has determined to
effect a recapitalization concerning or impacting, INTER ALIA, the Notes in
accordance with the terms of this Agreement (the "RECAPITALIZATION");
WHEREAS, the Parties intend to implement the Recapitalization through
an equity-for-debt exchange (the "EXCHANGE") and consent to amendment of the
indentures governing the Notes (the "AMENDMENTS");
WHEREAS, to effect the Exchange, Holdings shall contribute shares of
its Class A common stock, $.01 par value (the "CLASS A STOCK") to Investco, and
Investco shall deliver such Class A Stock to the Consenting Noteholders in
exchange for their Relevant Interests;
WHEREAS, Holdings shall submit the Exchange and the Merger Agreement
(as defined herein) to the vote of the holders of its Class A Stock for
approval (the "SHAREHOLDER VOTE");
WHEREAS, certain of the holders of the Notes and Holdings, Investco
and Wireless have engaged in good faith negotiations with the objective of
reaching an agreement with regard to restructuring the outstanding indebtedness
and liabilities of, and equity interests in, Holdings and its subsidiaries in
accordance with the terms set forth in this Agreement;
WHEREAS, each of the Parties has reviewed, or has had the opportunity
to review, this Agreement with the assistance of professional legal and
financial advisors of its own choosing;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Holdings and SunCom Merger Corp., a wholly-owned subsidiary of
Holdings ("MERGER SUB"), have
entered into an Agreement and Plan of Merger (the "MERGER AGREEMENT") pursuant
to which, immediately prior to the Exchange, Merger Sub will be merged with and
into Holdings (the "MERGER") for the purpose of (i) effecting the conversion of
each outstanding share of Class A Stock into 0.1 share of Class A Stock, (ii)
effecting certain amendments to the certificate of incorporation of Holdings
and (iii) granting certain additional rights to the holders of Class A Stock of
Holdings immediately prior to the Merger;
WHEREAS, each Consenting Noteholder desires to agree to support and
implement the Recapitalization and, to the extent it owns any Class A Stock, to
vote to adopt the Merger Agreement and to vote to approve the Exchange, and
Holdings and Investco desire to obtain the commitment of the Consenting
Noteholders to take such action, in each case subject to the terms and
conditions set forth herein; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, certain holders of the Class A Stock, following the conversion of
shares of Class B common stock, par value $0.01 per share, of Holdings ("CLASS
B STOCK"), held by certain of such holders to Class A Stock, have executed a
Voting and Lock-up Agreement with certain of the Consenting Noteholders whereby
such holders of Class A Stock have agreed, among other things, to vote to adopt
the Merger Agreement, to vote to approve the Exchange, and to otherwise support
and implement the Recapitalization.
NOW, THEREFORE, in consideration of the foregoing and the promises,
mutual covenants and agreements set forth herein and for other good and
valuable consideration, the Parties agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the term:
"ACQUISITION PROPOSAL" shall mean any proposal, offer or inquiry from
a third party for or with respect to the acquisition, directly or indirectly,
of beneficial ownership (as defined under Rule 13(d) of the Exchange Act) of
assets, securities or ownership interests of or in Holdings, Wireless or
Investco or any of their subsidiaries representing 50% or more of the
consolidated assets of Holdings and its subsidiaries taken as a whole, or of an
equity interest representing a 50% or greater economic interest in Holdings and
its subsidiaries taken as whole, pursuant to a merger, consolidation or other
business combination, sale of shares of capital stock, sale of assets, share
exchange, liquidation, dissolution, recapitalization, tender offer, exchange
offer or similar transaction with respect to Holdings, Investco, Wireless or
any of their subsidiaries, including without limitation, a Sale Transaction.
"ACTION" shall mean any action, order, writ, injunction, judgment or
decree outstanding or claim, suit, litigation, proceeding, arbitration, audit
or investigation by or before any Governmental Entity or any other Person.
"AGREEMENT" shall have the meaning ascribed thereto in the Preamble.
"AMENDMENTS" shall have the meaning ascribed thereto in the Recitals.
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"ASSETS" shall mean, with respect to any Person, any land, buildings,
improvements, leasehold improvements, Fixtures and Equipment and any other
assets, real or personal, tangible or intangible, owned or leased by such
Person or any of its subsidiaries.
"BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP" with respect to any
securities means having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act).
"BOARD" means the board of directors of Holdings. "BREAK-UP FEE" shall
have the meaning ascribed thereto in Section 11.2(b). "CHASE RELEASE PARTIES"
shall have the meaning ascribed thereto in Section 8.2(d). "CLASS A STOCK"
shall have the meaning ascribed thereto in the Recitals. "CLASS B STOCK" shall
have the meaning ascribed thereto in the Recitals. "CLOSING" shall have the
meaning ascribed thereto in Section 2.2(a). "CLOSING DATE" means the date the
Closing occurs. "COMMON STOCK" shall mean the Class A Stock and the Class B
Stock together. "COMPANY SEC REPORTS" shall have the meaning ascribed thereto
in Section 5(b)(i). "CONSENTING NOTEHOLDER" shall have the meaning ascribed
thereto in the Preamble. "CONTINUING DIRECTORS" shall have the meaning ascribed
thereto in Section 9.1. "DESIGNATED DEFAULTS" shall mean any default arising
from failure to perform or comply with Sections 4.01, 4.04, 4.05, 4.06, 4.14,
4.15, 4.16, 4.17, 4.18, 4.20 and 5.01 of the Indenture, dated as of January 19,
2001, as supplemented by the Supplemental Indenture, dated as of November 18,
2004 and the Second Supplemental Indenture, dated as of January 27, 2005 and of
the Indenture, dated as of November 14, 2001, as supplemented by the
Supplemental Indenture, dated as of November 18, 2004 and the Supplemental
Indenture, dated as of January 27, 2005.
"D&O INSURANCE" shall have the meaning ascribed thereto in Section
8.2(b).
"8-3/4% NOTES" shall have the meaning ascribed thereto in the
Preamble.
"EXCHANGE" shall have the meaning ascribed thereto in the Recitals.
"EXCHANGE ACT" shall have the meaning ascribed thereto in Section
5(b)(i).
"EXCHANGE CONSIDERATION" shall have the meaning ascribed thereto in
Section 2.1.
"EXPENSES" shall have the meaning ascribed thereto in Section 11.2(a).
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"FCC APPROVAL" shall have the meaning ascribed thereto in Section
8.5(b).
"FIXTURES AND EQUIPMENT" shall mean, with respect to any Person, all
of the furniture, fixtures, furnishings, machinery and equipment owned or
leased by such Person and located in, at or upon the Assets of such Person.
"GAAP" shall have the meaning ascribed thereto in Section 5(b)(ii).
"GOVERNMENTAL ENTITIES" shall mean all courts, regulatory or
administrative agencies, commissions or other governmental authorities, bodies
or instrumentalities with jurisdiction, including for the avoidance of doubt
any self regulatory organizations.
"HOLDINGS" shall have the meaning ascribed thereto in the Preamble.
"HSR ACT" shall have the meaning ascribed thereto in Section 6.2.
"INDEMNITEES" shall have the meaning ascribed thereto in Section
8.2(a).
"INVESTCO" shall have the meaning ascribed thereto in the Preamble.
"LIEN" shall mean any claim, lien, pledge, option, right of first
refusal, charge, security interest, deed of trust, mortgage, restriction,
hypothecation or encumbrance.
"MATERIAL ADVERSE EFFECT" shall mean an event or condition that has
had or reasonably could have a material adverse effect on the business, assets
or financial performance of Holdings and its consolidated subsidiaries, taken
as a whole, other than any effect resulting from (i) conditions, developments
or circumstances (including, without limitation, economic, political or
regulatory conditions, federal or state governmental actions, proposed or
enacted legislation or proposed or enacted regulations) that are applicable to
the wireless communications industry in general or that adversely affect the
markets in which Holdings and its subsidiaries operate generally or affect
industries related to the telecommunications business generally (including,
without limitation, the introduction of any technological changes in the
telecommunications industry), (ii) any change in the United States or foreign
economies or securities or financial markets in general, (iii) any action taken
by Holdings, Investco, Wireless or the Consenting Noteholders in furtherance of
the transactions contemplated hereby and consistent with the terms of this
Agreement, (iv) the public announcement of the Exchange, the consummation of
the transactions contemplated hereby, or the public announcement of the New
Board's intention to pursue strategic alternatives, including a Sale
Transaction, or (v) changes in the nature of competition affecting the business
of Holdings and its subsidiaries, taken as a whole (including, without
limitation, competition resulting from the introduction of any new
technological changes in the telecommunications industry).
"MATERIAL CONTRACT" shall have the meaning ascribed thereto in Section
7.2(c).
"MATERIALS" shall have the meaning ascribed thereto in Section 9.2.
"MERGER" shall have the meaning ascribed thereto in the Recitals.
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"MERGER AGREEMENT" shall have the meaning ascribed thereto in the
Recitals.
"MERGER SUB" shall have the meaning ascribed thereto in the Recitals.
"NEW BOARD" shall have the meaning ascribed thereto in Section 9.1.
"NEW INVESTMENT BANK" shall have the meaning ascribed thereto in
Section 9.2.
"9-3/8% NOTES" shall have the meaning ascribed thereto in the
Preamble.
"NOTES" shall have the meaning ascribed thereto in the Preamble.
"PARTY" shall have the meaning ascribed thereto in the Preamble.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, joint venture, real estate investment trust, other
organization (whether incorporated or unincorporated), governmental agency or
instrumentality, or any other legal entity.
"POTENTIAL PURCHASERS" shall have the meaning ascribed thereto in
Section 9.2.
"PPM" shall have the meaning ascribed thereto in Section 4(d).
"PROXY STATEMENT" shall have the meaning ascribed thereto in Section
7.1(b).
"RECAPITALIZATION" shall have the meaning ascribed thereto in the
Recitals.
"RECAPITALIZATION DOCUMENT" shall have the meaning ascribed thereto in
Section 3.1(a)(i). "RELEVANT INTERESTS" shall have the meaning ascribed thereto
in Section 4(a).
"REQUISITE NOTEHOLDERS" means Consenting Noteholders representing at
least 85% in aggregate principal amount of all outstanding Notes subject to the
Agreement.
"RESTRICTED PERIOD" shall have the meaning ascribed thereto in Section
3.2.
"SALE TRANSACTION" shall have the meaning ascribed thereto in Section
9.2.
"SEC" shall have the meaning ascribed thereto in Section 3.1(a)(ii).
"SECURITIES ACT" shall have the meaning ascribed thereto in Section
4(d).
"SHAREHOLDER VOTE" shall have the meaning ascribed thereto in the
Recitals.
"STOCKHOLDERS MEETING" shall have the meaning ascribed thereto in
Section 7.1(b).
"SUNCOM RELEASE PARTIES" shall have the meaning ascribed thereto in
Section.8.2(d).
"Superior Proposal" shall mean an Acquisition Proposal that the Board
determines in good faith (after consultation with the New Investment Bank or,
if the New Investment Bank
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shall not have been appointed or shall no longer be serving as financial
advisor to Holdings, another financial advisor of national reputation, and in
light of all relevant circumstances, including all the terms and conditions of
such proposal and the Exchange) to be more favorable to Holdings' stockholders
than consummating the Exchange.
"TRANSFER" shall have the meaning ascribed thereto in Section 3.2.
"UNSOLICITED PROPOSALS" shall have the meaning ascribed thereto in
Section 9.2.
"VOTING AND LOCK-UP AGREEMENT" shall have the meaning ascribed thereto
in the Recitals.
"WIRELESS" shall have the meaning ascribed thereto in the Preamble.
SECTION 2. EXCHANGE.
2.1. EXCHANGE.
Subject to the terms and conditions of this Agreement, at the Closing,
each Consenting Noteholder will exchange its Relevant Interests, by
transferring the applicable Notes to Investco pursuant to Section 2.2, for the
number of shares of Class A Stock specified opposite such Consenting
Noteholder's name on Schedule I hereto (the "EXCHANGE CONSIDERATION"), which
Schedule shall be updated as necessary prior to Closing to reflect any
acquisitions or dispositions of Relevant Interests pursuant to the provisions
of Sections 3.2, 3.3 and 4(b) and which reflects an exchange ratio of 71.113944
shares of Class A Stock for each $1,000 principal amount of Notes. The terms of
the Class A Stock shall be as set forth in the certificate of incorporation of
Holdings as it will be amended in the Merger (as defined herein). In lieu of
any fractional shares of Class A Stock to be issued to the Consenting
Noteholders as Exchange Consideration, each Consenting Noteholder shall be
entitled to receive cash from Investco equal to the product obtained by
multiplying (A) the fractional share interest to which such Consenting
Noteholder (after taking into account all shares of Class A Stock to be
received by such Consenting Noteholder) would otherwise be entitled to receive
by (B) (i) if the Class A Stock is listed on the New York Stock Exchange, the
per share closing price of the Class A Stock on the Closing Date as listed on
the New York Stock Exchange (as reported by THE WALL STREET JOURNAL (Northeast
edition), or, if not reported thereby, as reported by any other authoritative
source) or (ii) if the Class A Stock is not listed on the New York Stock
Exchange, the per share closing price of the Class A Stock on the Closing Date
as listed on the over-the-counter bulletin board or other exchange or quotation
system on which the Class A Stock is traded at such time.
2.2. DELIVERY AND PAYMENT.
(a) The closing of the Exchange (the "CLOSING") will occur at the
offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 X. 00xx Xx.,
Xxx Xxxx, Xxx Xxxx 00000 or at such place or places as
mutually may be agreed upon by the Parties, at 10:00 A.M.,
New York City time, as promptly as practicable but in no
event later than the third (3rd) business day after the
satisfaction or (to the extent permitted by applicable law)
waiver of all of the conditions (other than those conditions
that by their
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nature are to be satisfied at Closing, but subject to the
fulfillment or waiver of those conditions) set forth in
Section 10.
(b) Delivery of the Notes at the Closing will be made to Investco
by or on behalf of the Consenting Noteholders and Investco
shall deliver to the Consenting Noteholders Class A Stock
representing the Exchange Consideration (which Class A Stock
shall be delivered by Holdings to Investco immediately prior
to the Closing). Delivery of the Notes will be made through
the facilities of The Depository Trust Company. At closing,
each Consenting Noteholder shall also deliver to Investco a
letter of transmittal in customary form transferring the
Notes to Investco (which letter of transmittal shall also
include information as to the tax basis of the Consenting
Noteholder in the Notes being transferred).
2.3. EXIT CONSENT.
Each of the Consenting Noteholders who validly Exchanges its Notes
pursuant to this Agreement will be deemed, by tendering its Notes for exchange,
to have delivered a consent to the adoption of the Amendments, in substantially
the form attached as EXHIBIT A hereto, effective immediately prior to the
Closing. The Consenting Noteholders, with the cooperation of the other Parties
hereto, shall instruct the Depository Trust Company, as record holder of the
Notes, as necessary to effect such consent under the indentures governing the
Notes prior to the Closing.
2.4. FORM OF EXCHANGE CONSIDERATION.
There will be placed on the certificates for the shares of Class A
Stock issued as Exchange Consideration a legend stating in substance:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN
A TRANSACTION THAT WAS NOT REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED
OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER SAID ACT AND
APPLICABLE STATE SECURITIES LAWS.
2.5. TAXES.
Holdings, Investco and Wireless will be responsible for all sales and
similar transfer taxes which may be due by the Consenting Noteholders as a
result of the Exchange as set forth in this Section 2 except to the extent that
such taxes are imposed because Notes are held other than in the name of the
registered holder.
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SECTION 3. LOCK-UP OF CONSENTING NOTEHOLDERS.
3.1. SUPPORT OF RECAPITALIZATION.
(a) Each of the Consenting Noteholders, as long as each such
Consenting Noteholder remains the legal owner, Beneficial
Owner and/or the duly authorized investment adviser or
manager with respect to any Notes and/or Common Stock, agrees
that, so long as this Agreement shall be in full force and
effect and shall not have been validly terminated pursuant to
Section 11 hereof, it will:
(i) from and after the date hereof not directly or
indirectly seek, solicit, support, formulate or
encourage any other plan, sale, proposal or offer of
reorganization, merger, restructuring or
recapitalization of Holdings and/or its subsidiaries
that could reasonably be expected to prevent, delay or
impede the Recapitalization of Holdings and its
subsidiaries as contemplated herein or in any other
document prepared, executed or filed in connection
with implementation of the Recapitalization,
including, without limitation, the Merger Agreement
(hereinafter, each a "RECAPITALIZATION DOCUMENT");
(ii) agree to permit disclosure in any filings by Holdings
or Wireless with the Securities and Exchange
Commission (the "SEC") of the substance of this
Agreement and the aggregate (but not the respective)
Notes and the aggregate (but not the respective)
Common Stock held by all Consenting Noteholders;
PROVIDED THAT Holdings and Wireless shall not disclose
the amount of the Notes or Common Stock held by any
individual Consenting Noteholder, except as may be
otherwise required by applicable law; and PROVIDED
FURTHER THAT the Consenting Noteholders and their
advisors will have the right to review and comment
upon any such disclosure prior to any filing with the
SEC; and
(iii) appear, by proxy or in person, at the Stockholders
Meeting or otherwise cause its Class A Stock to be
counted as present thereat for purposes of calculating
a quorum and respond to any other request by Holdings
for written consent, if any, and, unless otherwise
expressly consented to in writing by Holdings, in its
sole discretion, vote, or cause to be voted, all such
Consenting Noteholder's Class A Stock Beneficially
Owned by such Consenting Noteholder as of the relevant
time (A) in favor of the Exchange and the transactions
contemplated thereby, including the issuance of the
shares of Class A Stock, through Investco, to the
Consenting Noteholders in exchange for the Notes held
by such Consenting Noteholders (B) in favor of the
adoption of the Merger Agreement and the approval of
the transactions contemplated thereby, including the
Merger, (C) against any proposal made in opposition
to, or in competition or inconsistent with, the
Recapitalization and the Recapitalization Documents,
including the adoption thereof or the consummation
thereof, (D) against any extraordinary dividend,
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distribution or recapitalization by Holdings or change
in the capital structure of Holdings (other than
pursuant to or as explicitly permitted by the
Recapitalization Documents) and (E) against any action
or agreement that would reasonably be expected to
result in any condition to the consummation of any
Recapitalization Document not being fulfilled. Each
Consenting Noteholder hereby revokes any and all
previous proxies granted with respect to its Class A
Stock. By entering into this Agreement, each
Consenting Noteholder hereby grants a proxy appointing
Holdings, with full power of substitution, as such
Consenting Noteholder's attorney-in-fact and proxy,
for and in such Consenting Noteholder's name, to be
counted as present and to vote or otherwise to act on
behalf of such Consenting Noteholder with respect to
its Class A Stock in the manner contemplated by this
Section 3.1(a)(iii) as such proxy or it substitutes
shall, in Holdings' sole discretion, deem proper with
respect to its Class A Stock. The proxy granted by
each Consenting Noteholder pursuant to this Section
3.1(a)(iii) is, subject to the penultimate sentence of
this Section 3.1(a)(iii), irrevocable and is coupled
with an interest and is granted in order to secure
such Consenting Noteholder's performance under this
Agreement and also in consideration of the Holdings
and Investco entering into this Agreement. If any
Consenting Noteholder fails for any reason to be
counted as present or to vote such Consenting
Noteholder's Class A Stock in accordance with the
requirements of this Section 3.1(a)(iii) (or
anticipatorily breaches such section), then Holdings
shall have the right to cause to be present or vote
such Consenting Noteholder's Class A Stock in
accordance with the provisions of this Section
3.1(a)(iii). The proxy granted by each Consenting
Noteholder shall be automatically revoked upon
termination of this Agreement in accordance with its
terms. Each Stockholder agrees, from the date hereof
until the valid termination of this Agreement in
accordance with Section 11, not to attempt to revoke
(subject to the preceding sentence), frustrate the
exercise of, or challenge the validity of, the
irrevocable proxy granted pursuant to this Section
3.1(a)(iii).
(b) Each of Holdings, Investco, Wireless and each Consenting
Noteholder (so long as it is a holder of any Note or share of
Common Stock) further agrees that, so long as this Agreement
shall be in full force and effect and shall not have been
validly terminated pursuant to Section 11 hereof, it shall
not:
(i) object to, or otherwise commence any proceeding
opposing, any of the terms of this Agreement or any
Recapitalization Documents;
(ii) take any action which is inconsistent with, or that
would delay approval or confirmation of any of the
Exchange, the Merger Agreement, the Amendments or any
of the other Recapitalization Documents; or
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(iii) in its capacity as the holder of any Notes, initiate
any Action with respect to its rights under such Notes
or the applicable indentures governing such notes,
except for any claims for any Designated Defaults.
3.2. TRANSFER OF CLAIMS, INTERESTS AND SECURITIES.
Each of the Consenting Noteholders hereby agrees, for the period
beginning on the date of this Agreement and ending on the earlier of (i) the
date of the Closing and (ii) the date of the termination of this Agreement
pursuant to Section 11(such period, the "RESTRICTED PERIOD"), that it shall not
sell, assign, transfer, hypothecate or otherwise dispose of, directly or
indirectly (each such transfer, a "TRANSFER"), all or any of its Notes or
Common Stock (or any right related thereto, including any voting or consent
rights associated with such Notes and/or Common Stock), UNLESS the transferee
thereof agrees in writing, on terms substantially similar to those set forth in
EXHIBIT B hereto, to assume and be bound by this Agreement, and to assume the
rights and obligations of a Consenting Noteholder under this Agreement and
delivers such writing to each of Holdings, Investco and counsel to the
Consenting Noteholders at or prior to the time of the relevant Transfer (each
such transferee becoming, upon the Transfer, a Consenting Noteholder
hereunder). Holdings and Investco shall promptly acknowledge any such Transfer
in writing, and provide a copy of that acknowledgement to the transferor. By
its acknowledgement of the relevant Transfer, each of Holdings and Investco
shall be deemed to have acknowledged that its obligations to the Consenting
Noteholders hereunder shall be deemed to constitute obligations in favor of the
relevant transferee as a Consenting Noteholder hereunder. Any sale, transfer or
assignment of any Note or share of Common Stock that does not comply with the
procedure set forth in the first sentence of this Section 3.2 shall be deemed
void AB INITIO. Each Consenting Noteholder further agrees to authorize and
hereby authorizes Holdings and its subsidiaries to effect a stop transfer order
with respect to all of the Notes and Common Stock owned by such Consenting
Noteholder and agrees that an appropriate legend may be placed on the Notes and
Common Stock with respect to the transfer restrictions set forth in this
Section 3.2 and that such Consenting Noteholder will submit such Notes and
certificates for Common Stock to Holdings for the inclusion of such legend.
3.3. FURTHER ACQUISITION OF NOTES AND EQUITY INTERESTS.
This Agreement shall in no way be construed to preclude any Consenting
Noteholder or any of its respective subsidiaries from acquiring additional
Notes and/or Common Stock; PROVIDED, HOWEVER, that any such additional Notes or
Common Stock acquired by a Consenting Noteholder or any subsidiary thereof
shall automatically be deemed to be subject to the terms of this Agreement; and
PROVIDED FURTHER that each such Consenting Noteholder agrees that it shall not
create any subsidiary or other affiliated entity for the sole purpose of
acquiring any Notes or shares of Common Stock. Upon the request of Holdings and
Investco, each Consenting Noteholder shall, in writing and within five (5)
business days, provide an accurate and current list of all Notes and Common
Stock that it and any affiliate holds at that time, PROVIDED that the
individual holdings of any Consenting Noteholder and its affiliates shall be
kept confidential and not disclosed by Holdings or Investco, subject to
applicable law.
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SECTION 4. REPRESENTATIONS OF CONSENTING NOTEHOLDERS.
Each of the Consenting Noteholders, severally for itself, represents
and warrants to Holdings and Investco, as of the date hereof and as of the
Closing, as follows, all of which are continuing representations and
warranties:
(a) Such Consenting Noteholder is the legal owner, Beneficial
Owner and/or the investment advisor or manager for the legal
or Beneficial Owner of the Notes set forth on Schedule I
hereto (to be updated as necessary at the Closing)
(collectively, the "RELEVANT INTERESTS"). Such Consenting
Noteholder will convey good and valid title to the Relevant
Interests, free and clear of any Liens.
(b) There are no Notes of which such Consenting Noteholder is the
legal owner, Beneficial Owner and/or investment advisor or
manager for such legal or Beneficial Owner which are not part
of its Relevant Interests other than Notes in which such
Consenting Noteholder holds an interest pursuant to or
subject to a contract with an unaffiliated third party which
third party has failed to deliver title to, or return
possession of, such Notes to such Consenting Noteholder in
accordance with such contract ("UNDELIVERED INTERESTS");
PROVIDED, however, that such Undelivered Interests shall
automatically become Relevant Interests upon the receipt of
title, or, as the case may be, possession, by such Consenting
Noteholder.
(c) Such Consenting Noteholder has full power to vote and/or
dispose of the aggregate principal amount of the Relevant
Interests.
(d) Such Consenting Noteholder is an "accredited investor" under
Regulation D under the Securities Act of 1933, as amended
(the "Securities Act"). Such Consenting Noteholder is
acquiring the Class A Stock for his, her or its own account,
for investment purposes only and not with a view to the
distribution of the Class A Stock, except in compliance with
the Securities Act and applicable state securities laws. Such
Consenting Noteholder has such knowledge and experience in
financial and business matters as to be capable of evaluating
the merits and risks of his, her or its prospective
investment in the Class A Stock and is able, without
materially impairing his, her or its financial condition, to
hold the Class A Stock for an indefinite period of time and
to suffer a complete loss on such investment. Such Consenting
Noteholder has received and reviewed the confidential private
placement memorandum (the "PPM") which --- outlines the
contemplated structure of the Exchange and includes
applicable disclosures relating to an investment in the Class
A Stock, and has had the opportunity to ask questions of the
management of Holdings and its subsidiaries to the extent
necessary to evaluate an investment in the Class A Stock.
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SECTION 5. REPRESENTATIONS OF HOLDINGS, INVESTCO AND WIRELESS.
Each of Holdings, Wireless and Investco represents and warrants to the
Consenting Noteholders, as of the date hereof and as of the Closing, as
follows, all of which are continuing representations and warranties:
(a) All shares of Class A Stock subject to issuance as specified
in Section 2.1 hereof will be duly authorized upon
consummation of the Merger and, upon issuance on the terms
and conditions specified in the instruments pursuant to which
they are issuable, will be validly issued, fully paid and
nonassessable.
(b) (i) Each of Holdings and Wireless has filed with the SEC
all reports, schedules, statements and other documents
required to be filed by it with the SEC pursuant to
the Exchange Act of 1934, as amended (the "Exchange
Act") since December 31, 2003 (collectively, the
"COMPANY SEC REPORTS"). As of their respective dates,
the Company SEC Reports and any registration
statements, reports, forms, proxy or information
statements and other documents filed by Holdings and
Wireless with the SEC pursuant to the Exchange Act
after the date of this Agreement (i) complied, or,
with respect to those not yet filed, will comply, in
all material respects with the applicable requirements
of the Exchange Act, and (ii) did not, or, with
respect to those not yet filed, will not, contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements made therein, in the
light of the circumstances under which they were made,
not misleading. Investco is not currently subject to
the reporting requirements of Section 13 and Section
15(d) of the Exchange Act.
(ii) Each of the most recent audited and unaudited
consolidated balance sheets included in or
incorporated by reference into the Company SEC Reports
(including the related notes and schedules) fairly
presents, in all material respects, the consolidated
financial position of Holdings and Wireless and their
consolidated subsidiaries as of its date, and each of
the most recent audited and unaudited consolidated
statements of income, stockholders' equity and cash
flows of Holdings and Wireless included in or
incorporated by reference into the Company SEC Reports
(including any related notes and schedules) fairly
presents, in all material respects, the results of
operations, stockholders' equity and cash flows, as
the case may be, of Holdings and Wireless and their
subsidiaries for the periods set forth therein
(subject, in the case of unaudited statements, to
normal year-end audit adjustments), in each case in
accordance with U.S. generally accepted accounting
principals ("GAAP") consistently applied during the
periods involved, except as may be noted therein and,
in the case of unaudited quarterly financial
statements, as permitted by Form 10-Q under the
Exchange Act.
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(iii) Except as set forth in the Company SEC Reports,
neither Holdings, Wireless nor any of their
subsidiaries has any liabilities or obligations of any
nature (whether accrued, absolute, contingent or
otherwise) that would be required to be reflected on,
or reserved against in, a balance sheet of Holdings or
Wireless or in the notes thereto prepared in
accordance with GAAP consistently applied, except for
(i) liabilities or obligations that were so reserved
on, or reflected in (including the notes to), the
consolidated balance sheet of Holdings or Wireless, as
applicable, as of September 30, 2006, (ii) liabilities
or obligations arising in the ordinary course of
business (including trade indebtedness) on or after
September 30, 2006 and prior to the date hereof, and
(iii) other liabilities or obligations which would
not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(iv) Holdings represents that there are not any outstanding
options or warrants for the purchase of any class of
its equity.
(c) Holdings, Wireless and Investco and each of their
subsidiaries is in compliance with all foreign, federal,
state and local laws and regulations applicable to their
operations or with respect to which compliance is a condition
of engaging in the business thereof, except to the extent
that failure to comply would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect. Neither Holdings, Wireless, Investco nor any of their
subsidiaries has received any written notice since January 1,
2003, or has knowledge, after due inquiry, of any written
notice received by it at any time, asserting a failure, or
possible failure, to comply with any such law or regulation,
the subject of which written notice has not been resolved as
required thereby or otherwise to the reasonable satisfaction
of the party sending the notice, except for such failures as
would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Except for
circumstances that, individually or in the aggregate, would
not constitute a Material Adverse Effect, Holdings, Wireless
and Investco have all permits, licenses, franchises,
certificates, orders and approvals of, and have made all
filings, applications and registrations with, Governmental
Entities that are required in order to permit Holdings,
Wireless and Investco to carry on their respective businesses
as currently conducted.
(d) Except as set forth in Company SEC Reports filed prior to the
date of this Agreement, there is no Action (i) instituted,
(ii) pending and served upon Holdings, Wireless, Investco or
any of their subsidiaries, or (iii) to the knowledge, after
due inquiry, of Holdings, Wireless and Investco, pending and
not served upon Holdings, Wireless, Investco or any of their
subsidiaries, or overtly threatened, in each case against
Holdings, Wireless, Investco or any of their subsidiaries or
any of their respective Assets which, individually or in the
aggregate, directly or indirectly, would reasonably be
expected to have a Material Adverse Effect, nor is there any
outstanding judgment, decree or injunction, in each case
against Holdings, Wireless, Investco, any of their
subsidiaries or any of their respective Assets or any
statute, rule or order of any Governmental Entity
-13-
applicable to Holdings, Wireless, Investco or any of their
subsidiaries which, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect.
(e) Each of Holdings, Wireless and Investco has filed all tax
returns required to be filed and paid all taxes shown thereon
to be due, including any interest and penalties, or provided
adequate reserves for the payment thereof, except for those
being contested in good faith and which are listed on
Schedule 5(e) hereto or to the extent that failure to so file
or pay would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(f) Assuming the exchange of, and only of, all Relevant Interests
held by the Consenting Noteholders as of the date of this
Agreement and reflected on Schedule I hereto, immediately
after the Exchange, each of the Consenting Noteholders or
their successors and assigns will hold a ratable share of
87.00481% of the Common Stock on a fully diluted basis
(assuming the issuance of all of the Class A Stock identified
on Schedule 7.2), such ratable share to be determined based
on the fraction equal to the face amount of such Consenting
Noteholder's Relevant Interests divided by the total face
amount of the outstanding Relevant Interests owned by all of
the Consenting Noteholders.
SECTION 6. MUTUAL REPRESENTATIONS AND WARRANTIES.
Each Party makes the following representations and warranties to each
of the other Parties, all of which are continuing representations and
warranties:
6.1. ENFORCEABILITY.
This Agreement is a legal, valid, and binding obligation of the Party,
enforceable against it in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency, fraudulent transfer, moratorium and other
similar laws of general application affecting or relating to the enforcement of
creditors' rights generally or is subject to general principles of equity,
whether considered in a proceeding at law or in equity.
6.2. NO CONSENT OR APPROVAL.
Except as expressly provided in this Agreement (including approval
and/or the expiration of any applicable waiting period under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
ACT") and the FCC Approval), and, as to Holdings, subject to the Shareholder
Vote, no consent or approval is required by any other Person or entity in order
for it to carry out the provisions of this Agreement.
6.3. POWER AND AUTHORITY.
It has all requisite power and authority to enter into this Agreement
and, subject, in the case of Holdings, to the Shareholder Vote, to carry out
the transactions contemplated by, and perform its respective obligations under,
this Agreement and the Recapitalization.
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6.4. AUTHORIZATION.
Subject, in the case of Holdings, to the Shareholder Vote, the
execution and delivery of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary action on its part.
6.5. GOVERNMENTAL CONSENTS.
The execution, delivery and performance by it of this Agreement does
not and shall not require any registration or filing with consent or approval
of, or notice to, or other action to, with or by, any Governmental Entity,
except for the FCC Approval and such filings and approvals as may be necessary
and/or required under the federal securities laws, any state securities laws or
the HSR Act.
6.6. NO CONFLICTS.
The execution, delivery and performance of this Agreement does not and
shall not: (i) subject to the receipt of the FCC Approval and the receipt of
all approvals and/or the expiration of any applicable waiting period under the
HSR Act, violate the provision of law, rule or regulations applicable to it or
any of its subsidiaries; (ii) violate its certificate of incorporation, bylaws
or other organizational documents or those of any of its subsidiaries; or (iii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any material contractual obligation to which it
or any of its subsidiaries is a party.
SECTION 7. UNDERTAKINGS OF HOLDINGS, INVESTCO AND WIRELESS.
7.1. AFFIRMATIVE UNDERTAKINGS
(a) Except as otherwise expressly provided in this Agreement,
each of Holdings, Investco and Wireless agrees that, from the
date of this Agreement until the Closing, it shall, and shall
cause its subsidiaries to, operate its business and maintain
its Assets, in the ordinary course of business, consistent
with past practice, and use its commercially reasonable
efforts to (i) preserve intact its business and goodwill,
(ii) maintain and renew its permits and licenses, (iii) keep
available the service of its officers and employees, (iv)
preserve its relationships with suppliers and other
constituencies, (v) maintain its books and records and (vi)
pay its obligations as they come due, in each case in the
ordinary course of business, consistent with past practice.
(b) Holdings agrees to use its commercially reasonable efforts to
prepare and file with the SEC as soon as practicable a proxy
statement to be sent to holders of Class A Stock in
connection with the meeting of holders of Class A Stock (the
"STOCKHOLDERS MEETING") to consider the Exchange and the
Merger Agreement (the "PROXY STATEMENT"). Holdings will cause
the Proxy Statement to comply as to form in all material
respects with the applicable provisions of the Exchange Act
and the rules and regulations thereunder. The Consenting
Noteholders and their advisors will have the right to review
and comment upon the Proxy Statement and any amendment
thereto prior to the filing thereof with the SEC. Holdings
shall
-15-
use all reasonable efforts to (i) have or cause the Proxy
Statement to be cleared by the SEC as promptly as
practicable, (ii) have the Proxy Statement mailed to the
holders of Class A Stock promptly after the clearance of such
Proxy Statement by the SEC, and (iii) hold the Stockholders
Meeting for the purposes of obtaining the Shareholder Vote
within thirty (30) days of such mailing. The Board shall not
withdraw, qualify or modify in a manner adverse to the
Consenting Noteholders, or publicly propose to withdraw,
qualify or modify in a manner adverse to the Consenting
Noteholders, its recommendation of the Exchange, the Merger
and the transactions contemplated hereby and under the Merger
Agreement. Notwithstanding the foregoing or anything to the
contrary contained in this Agreement, but subject to the
other obligations of Holdings contained in this Section
7.1(b), if, prior to obtaining the Stockholder Vote, the
Board determines in good faith, after consultation with
outside counsel, that failure to so withdraw, qualify or
modify its recommendation would be inconsistent with the
exercise of its fiduciary duties, the Board may withdraw or
modify its recommendation.
(c) Holdings agrees to execute and deliver to the Consenting
Noteholders for counter-execution, a Registration Rights
Agreement, substantially in the form attached hereto as
EXHIBIT C, on or before the Closing.
(d) Holdings shall use its reasonable best efforts to contest
and/or appeal the delisting of the Class A Stock from the New
York Stock Exchange.
7.2. NEGATIVE UNDERTAKINGS
Except as required by applicable law and subject to Section 7.1(b),
Holdings, Investco and Wireless shall, and shall cause each of their
subsidiaries to, take no actions inconsistent with the prompt consummation of
the Recapitalization, the Exchange, the Merger and the other transactions
contemplated by this Agreement. Each of Holdings, Investco and Wireless shall
not, and shall not permit any of its subsidiaries to, except (i) as expressly
permitted or required by this Agreement or the Merger Agreement, (ii) as set
forth on Schedule 7.2, or (iii) as otherwise agreed to in writing by the
Consenting Noteholders, not to be unreasonably withheld, conditioned or
delayed:
(a) sell or convey any of its material Assets or any interests
therein, except in the ordinary course of business consistent
with past practice; PROVIDED, that Holdings and its
subsidiaries may consummate the pending sales of (i) its
wireless license and wireless communications network in the
Athens, Georgia market to Cingular Wireless LLC and (ii)
certain wireless communications towers located in North
Carolina, South Carolina and eastern Tennessee to SBA Towers
II LLC, a wholly-owned subsidiary of SBA Communications;
(b) change its method of accounting or any accounting principle,
method, estimate or practice, except as may be required by
GAAP or any other applicable requirements of law;
-16-
(c) cancel, terminate or amend any contract involving revenues or
expenditures in excess of $250,000 (a "MATERIAL CONTRACT"),
or enter into any Material Contract, other than in the
ordinary course;
(d) acquire or agree to acquire by merging or consolidating with,
or by purchasing any equity interest in or a portion of the
assets of, or by any other manner, any business or any Person
or division thereof, or otherwise acquire or agree to acquire
any assets which are material, individually or in the
aggregate, to the business of Holdings and its subsidiaries,
taken as a whole or which would be material Assets;
(e) enter into any joint ventures, strategic partnerships or
alliances, except in the ordinary course of business
consistent with past practice and not involving the formation
of a new entity;
(f) enter into any contract the effect of which would be to grant
to a third party any license to use any intellectual
property, except in the ordinary course of business
consistent with past practice;
(g) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or
reorganization, including without limitation by entering into
any Acquisition Proposal; PROVIDED, that nothing shall
prohibit Holdings or its subsidiaries from entering into or
supporting an Acquisition Proposal if Holdings and Investco
terminate this Agreement pursuant to Section 11.1(h) to
accept a Superior Proposal, subject to the compliance with
Section 9.2 hereof;
(h) except as required by law or contract currently binding on
Holdings or Investco, (i) enter into, adopt, amend or
terminate any employee benefit plan, (ii) increase the
compensation or benefits payable to any employee or pay any
amounts to employees not otherwise due, except for
promotions, raises, increases and the renewal of any
employment contracts for non-executive officers, in case of
each such promotion, raise, increase and renewal in the
ordinary course of business, (iii) grant or accelerate the
vesting of any equity-based awards for the benefit of any
employee, (iv) enter into any new, or amend any existing,
collective bargaining agreement or similar agreement with
respect to any employee or (v) provide any funding for any
rabbi trust or similar arrangement;
(i) amend its certificates of incorporation or bylaws (or
comparable instruments);
(j) (i) other than in the ordinary course of business consistent
with past practice, assume, guarantee, endorse or otherwise
become liable or responsible (whether directly, contingently
or otherwise) for the obligations of any other Person; (ii)
make any loans, advances or capital contributions to or
investments in any other Person other than (A) those to
customers in the ordinary course of business consistent with
past practice and (B) travel and business expense advances to
employees in the ordinary course of business consistent with
past practice; or (iii)
-17-
incur indebtedness other than trade indebtedness or working
capital loans in the ordinary course;
(k) other than in the ordinary course of business consistent with
past practice, enter into any contract that contains
non-competition restrictions, including any restrictions
purporting to relate to the conduct of the business of
Holdings and its subsidiaries or any geographic restrictions;
(l) other than in the ordinary course of business consistent with
past practice or as set forth in the annual budget of
Holdings, Wireless or Investco, as applicable, as in effect
as of the date hereof, authorize any new capital expenditure
or expenditures that, individually or in the aggregate,
exceed $250,000;
(m) initiate, compromise, or settle any litigation or arbitration
proceedings (i) involving payments by Holdings or its
subsidiaries in excess of $1,500,000 in the aggregate or (ii)
relating to this Agreement or the transactions contemplated
hereby;
(n) issue, deliver, sell, authorize, pledge or otherwise
encumber, or agree to issue, deliver, sell, authorize, pledge
or otherwise encumber, any shares of capital stock, voting
debt or any securities derivative of or convertible into
shares of capital stock or voting debt, or subscriptions,
rights, warrants or options to acquire any shares of capital
stock or voting debt or any securities convertible into
shares of capital stock or voting debt, or enter into other
agreements or commitments of any character obligating
Holdings or any of its subsidiaries to issue any such
securities or rights;
(o) engage in any transaction with, or enter into any agreement,
arrangement, or understanding with, directly or indirectly,
any of its affiliates other than any direct or indirect
wholly-owned subsidiaries;
(p) alter, through merger, liquidation, reorganization,
restructuring or in any other manner, the corporate structure
or ownership of Investco, Wireless or any other subsidiary;
(q) amend any of the Reorganization Documents without the prior
written approval of the Consenting Noteholders, except for
changes in the Proxy Statement or to documents incorporated
by reference therein in response to any comments received by
the SEC (subject to the right of the Consenting Noteholders
to review and comment on such amendments as provided in
Section 7.1(b)); or
(r) agree in writing or otherwise to take any of the actions
described in (a) through (q) above.
-18-
SECTION 8. ADDITIONAL COVENANTS.
8.1. NO SOLICITATION OF TRANSACTIONS.
None of Holdings, Wireless, Investco or any of their subsidiaries
shall, nor shall they authorize or permit, directly or indirectly, any officer,
director, employee, agent, investment banker, financial advisors, attorney,
broker, finder or other agent or representative to, initiate or solicit
(including by way of furnishing non-public information or assistance) any
inquiries or the making of any proposal that constitutes, or may reasonably be
expected to lead to, an Acquisition Proposal. Notwithstanding anything to the
contrary contained herein, neither (i) the taking of any of the actions
contemplated or permitted by Section 9.2 nor (ii) any of the actions taken by
Holdings, Wireless, Investco or any of their subsidiaries prior to the date of
this Agreement, shall be deemed to be a breach of Section 8.1.
8.2. D&O INSURANCE; INDEMNIFICATION; RELEASE.
(a) All rights to exculpation and indemnification for acts or
omissions occurring at or prior to the Closing, whether
asserted or claimed prior to, at or after the Closing
(including any matters arising in connection with the
transactions contemplated by this Agreement), now existing in
favor of the respective current or former directors, officers
or employees (collectively, "INDEMNITEES"), as the case may
be, of Holdings or its subsidiaries as provided in their
respective charter documents and bylaws or in any agreement
shall survive the Closing and shall continue in full force
and effect for a period of not less than six years following
the closing of the Closing. Holdings and its subsidiaries
shall indemnify, defend and hold harmless, and advance
expenses to Indemnitees with respect to all acts or omissions
by them in their capacities as such at any time prior to the
Closing, to the fullest extent permitted by: (i) the charter
documents and bylaws of Holdings or any of its subsidiaries
(including Wireless) as in effect on November 21, 2006; and
(ii) any indemnification agreements of Holdings or its
subsidiaries or other applicable contract, in each case as in
effect on November 21, 2006. Holdings and the Consenting
Noteholders covenant and agree, for a period of six years
following the Closing, not to amend, modify or terminate any
such charter documents, bylaws or agreements in any manner
adverse to the Indemnitees with respect to such rights to
indemnification and advancement of expenses.
(b) In furtherance of the foregoing, at the Board's election, (A)
Holdings and its subsidiaries shall obtain prior to the
Closing "tail" insurance policies with a claims period of at
least six years from the Closing with respect to directors'
and officers' liability insurance in amount and scope no less
favorable than the existing policy or policies of Holdings
and its subsidiaries for claims arising from facts or events
that occurred on or prior to the Closing; or (B) if Holdings
and its subsidiaries shall not have obtained such tail
policy, after the Closing, the New Board will cause Holdings
and its subsidiaries to provide, for a period of not less
than six years after the Closing, the Indemnitees who are
insured under Holdings' current directors' and officers'
insurance policy with an insurance policy that
-19-
provides coverage for events occurring at or prior to the
Closing that is no less favorable, taken as a whole, than the
existing policy of Holdings and its subsidiaries or, if
substantially equivalent insurance coverage is unavailable,
the best available coverage (in either case, the "D&O
INSURANCE"). Holdings and its subsidiaries covenant and agree
to maintain such D&O Insurance for a claims period of at
least six years from the Closing and at such coverage amounts
and shall not terminate or modify the D&O Insurance coverage
in any manner adverse to the Indemnitees.
(c) Sections 8.2(a) and 8.2(b) are intended for the irrevocable
benefit of, and to grant third party rights to, the
Indemnitees and shall be binding on all successors and
assigns of Holdings and its subsidiaries. The Indemnitees
shall be entitled to enforce the covenants contained in
Sections 8.2(a) and 8.2(b).
(d) Effective as of and subject to the occurrence of the Closing,
each of the Consenting Noteholders hereby releases and
forever discharges all of Holdings and its subsidiaries and
all of the Indemnitees (collectively, the "SUNCOM RELEASE
Parties") and each of X.X. Xxxxxx Partners (23A SBIC), L.P.,
X.X. Xxxxxx SBIC LLC, Sixty Wall Street SBIC Fund, L.P, X.X.
Xxxxxx Capital, L.P., Sixty Wall Street Fund, L.P., their
respective current and former directors, officers, partners
and employees, and Xxxxxx X. Xxxxxxx (collectively, the
"CHASE RELEASE PARTIES"), from any and all claims,
counterclaims, causes of action, demands, obligations, sums
of money, contract, agreements, or damages, whether in law or
in equity, that they had, now have, may have, or may have had
against them, whether liquidated or unliquidated, known or
unknown, matured or unmatured, relating to or arising out of
acts or omissions of the SunCom Release Parties or Chase
Release Parties occurring prior to the Closing in their
capacity, with respect to the SunCom Release Parties, as
obligors to the Consenting Noteholders or as stockholders,
directors, officers and employees of Holdings and/or any of
its subsidiaries, and with respect to the Chase Release
Parties, as stockholders of Holdings or directors, officers,
partners and employees of such Chase Release Parties,
respectively; PROVIDED, HOWEVER, that such release does not
extend to acts of theft or fraud committed by any of the
SunCom Release Parties or the Chase Release Parties against
any Consenting Noteholder. This Section 8.2(d) is intended
for the irrevocable benefit of, and to grant third party
rights to, the SunCom Release Parties and the Chase Release
Parties and shall be binding on all successors and assigns of
each of the Consenting Noteholders. The SunCom Release
Parties and the Chase Release Parties shall be entitled to
enforce the provisions of this Section 8.2(d).
(e) Effective as of and subject to the occurrence of the Closing,
each of the SunCom Release Parties hereby releases and
forever discharges (and prior to the Closing, each of the
Chase Release Parties will release and forever discharge)
each of the Consenting Noteholders from any and all claims,
counterclaims, causes of action, demands, obligations, sums
of money, contract, agreements, or damages, whether in law or
in equity, that they had, now have, may have, or may have had
against them, whether liquidated or unliquidated, known or
unknown, matured or unmatured, relating to or arising out of
acts or omissions by such Consenting Noteholder related to
Holdings and its subsidiaries and the transactions
contemplated by this Agreement, including the Exchange and
the Merger; PROVIDED, HOWEVER, that such release does not and
will not extend to acts of theft or fraud committed by any
Consenting
-20-
Noteholder against the SunCom Release Parties or Chase
Release Parties.
(f) Effective as of and subject to the occurrence of the Closing,
each of Holdings and its subsidiaries hereby releases and
forever discharges each of the Chase Release Parties from any
and all claims, counterclaims, causes of action, demands,
obligations, sums of money, contract, agreements, or damages,
whether in law or in equity, that they had, now have, may
have, or may have had against them, whether liquidated or
unliquidated, known or unknown, matured or unmatured,
relating to or arising out of acts or omissions by such Chase
Release Parties related to Holdings and its subsidiaries and
the transactions contemplated by this Agreement, including
the Exchange and the Merger; PROVIDED, HOWEVER, that such
release does not and will not extend to acts of theft or
fraud committed by any Chase Release Party against Holdings
or any of its subsidiaries. This Section 8.2(f) is intended
for the irrevocable benefit of, and to grant third party
rights to, the Chase Release Parties and shall be binding on
all successors and assigns of each of Holdings and its
subsidiaries. The Chase Release Parties shall be entitled to
enforce the provisions of this Section 8.2(f).
8.3. CONFIDENTIALITY/PUBLICITY.
Except as required by applicable law, Holdings and Investco on the one
hand and the Consenting Noteholders on the other hand shall not, and shall not
permit any of their subsidiaries to, make public disclosures in respect of the
transactions contemplated by this Agreement without the consent, not to be
unreasonably withheld, conditioned or delayed, of the other. Except as required
by applicable law, Holdings and Investco shall not, and shall not permit any of
their subsidiaries to, issue any press release in respect of the transactions
contemplated by this Agreement without the consent of a majority in interest of
the outstanding principal amount of the Notes held by the Consenting
Noteholders, not to be unreasonably withheld, conditioned or delayed.
8.4. TIMING OF THE EXCHANGE.
The Parties will use their commercially reasonable efforts to (i)
finalize and file with the SEC the preliminary Proxy Statement within three (3)
business days following the date of this Agreement and (ii) cause the
consummation of the Exchange to occur within three (3) months following the
date of this Agreement.
8.5. EFFORTS TO CONSUMMATE.
(a) Subject to the terms and conditions set forth in this
Agreement, each of the Parties hereto shall, and shall cause
any of its subsidiaries to, use its commercially reasonable
efforts (subject to, and in accordance with, applicable law)
to take promptly, or to cause to be taken, all actions, and
to do promptly, or to cause to be
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done, and to assist and to cooperate with the other Parties
in doing, all things necessary, proper or advisable to
consummate and make effective the Recapitalization, Merger
and Exchange, including (i) obtaining all necessary actions
or nonactions, waivers, consents and approvals, including
from Governmental Entities and the making of all necessary
registrations and filings and the taking of all steps as may
be necessary to obtain an approval or waiver from, or to
avoid an action or proceeding by, any Governmental Entity,
(ii) obtaining all necessary consents, approvals or waivers
from third parties, if any, (iii) defending any lawsuits or
other legal proceedings, whether judicial or administrative,
challenging this Agreement, the Merger Agreement or the
consummation of the transactions contemplated hereby and (iv)
executing and delivering any additional instruments
reasonably necessary to consummate the transactions
contemplated hereby.
(b) Subject to the terms and conditions herein provided and
without limiting the foregoing, each of Holdings and the
Consenting Noteholders will (i) promptly, but in no event
later than fifteen (15) days after the date hereof, make
their respective filings and thereafter make any other
required submissions under the HSR Act, (ii) use reasonable
best efforts to cooperate with each other in (x) determining
whether any filings are required to be made with, or
consents, permits, authorizations, waivers or approvals are
required to be obtained from, any third parties or other
Governmental Entities in connection with the execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby and (y) timely making all
such filings and timely seeking all such consents, permits,
authorizations or approvals, including but not limited to
approvals from the FCC approving the transactions
contemplated by the Exchange (the "FCC APPROVAL"), and (iii)
use commercially reasonable efforts to take, or to cause to
be taken, all other actions and to do, or to cause to be
done, all other things necessary, proper or advisable to
consummate and make effective the Exchange, the Merger and
the other transactions contemplated hereby.
(c) In furtherance and not in limitation of the covenants of the
Parties contained in this Section 8.5 if any administrative
or judicial action or proceeding, including any proceeding by
a private party, is instituted (or threatened to be
instituted) challenging the Exchange, the Merger or any other
transaction contemplated by this Agreement, each of Holdings,
Investco and Wireless shall use its respective commercially
reasonable efforts, and the Consenting Noteholders shall
cooperate in all respects with Holdings, Investor or
Wireless, to contest and resist any such action or proceeding
and to have vacated, lifted, reversed or overturned any
decree, judgment, injunction or other order, whether
temporary, preliminary or permanent, that is in effect and
that prohibits, prevents or restricts consummation of the
Exchange, the Merger or any other transactions contemplated
hereby. Notwithstanding the foregoing or any other provision
of this Agreement, nothing in this Section 8.5 shall limit a
Party's right to terminate this Agreement pursuant to Section
11.1(c) or 11.1(d) so long as such party has, prior to such
termination, complied with its obligations under this Section
8.5.
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SECTION 9. GOVERNANCE.
9.1. BOARD MAKEUP
Effective immediately upon consummation of the Exchange, the Board
will be reconstituted as follows (collectively, the "NEW BOARD"): (i) Xxxxxxx
X. Xxxxxxxx, the Chairman and Chief Executive Officer, and Xxxxx X. Xxxxxxxx,
Chairman of the Audit Committee of the Board (together, the "CONTINUING
DIRECTORS"), will remain on the Board and (ii) the remaining three current
directors will resign from the Board. Immediately prior to the effectiveness of
the resignations of any of the members of the existing Board, the Board will
act to (A) increase the size of the Board to ten members and (B) approve the
appointment, effective immediately following the resignation of the three
current directors other than the Continuing Directors, of (i) three (3) new
directors designated by Highland Capital Management, L.P., at least one (1) of
which will be independent (as determined by the New Board) under New York Stock
Exchange Rules, (ii) three (3) new directors designated by Pardus Capital
Management L.P., a number (not less than one (1)) to be determined of which
will be independent (as determined by the New Board) under New York Stock
Exchange Rules and (iii) two (2) new directors designated by XxXxxx Xxxxx
Capital LLC, each of which will be independent (as determined by the New Board)
under New York Stock Exchange Rules, to fill the vacancies created by the
resignation of such directors and the expansion of the Board. The directors
appointed by the Persons set forth in the immediately preceding sentence
(together with the Person making such appointment) are set forth on Schedule II
hereto. Each such newly appointed director will be deemed to be in the class
(e.g. class I, II or III) indicated next to such director's name on Schedule II
hereto. If either of the two Continuing Directors ceases to serve as a director
for any reason, until the earlier of the consummation of a Sale Transaction (as
defined below) and the termination of the Sale Transaction process by the New
Board, the remaining Continuing Director will be entitled to select a
replacement with relevant qualifications and experience, and Holdings and the
Parties hereto with board appointment rights shall use their commercially
reasonable efforts to cause such selected replacement to be appointed by the
Board to fill the vacancy; PROVIDED THAT any such replacement must be
reasonably acceptable to and consented to by the Board, which consent shall not
be unreasonably withheld or delayed. Notwithstanding the designation rights of
particular Consenting Noteholders set forth above, each of the newly appointed
directors appointed to the New Board shall have relevant background and
experience and shall otherwise be reasonably acceptable to and consented to by
the Board, which consent shall not be unreasonably withheld or delayed. In the
event that a director designated pursuant to clause (B) of this Section 9.1
ceases to serve as director for any reason prior to the 2008 annual meeting of
stockholders of Holdings, the vacancy resulting thereby shall be filled by an
individual designated and nominated by the Person that nominated the director
who has ceased to serve, provided that the individual so nominated shall have
relevant background and experience and shall otherwise be reasonably acceptable
to and consented to by the remainder of the Board, which consent shall not be
unreasonably withheld or delayed, and Holdings and the Parties hereto with
board appointment rights shall take all action necessary to promptly elect, if
necessary, such successor or replacement director to the Board as soon as
possible after the date of such vacancy. Each director appointed to the Board
shall execute a confidentiality agreement in form and substance reasonably
satisfactory to Holdings prior to assuming his or her position on the Board.
The Parties agree that the Recapitalization Documents, including any proxy
-23-
solicitation materials, shall reflect the arrangements set forth in this
paragraph as and to the extent required by law.
9.2. SALE TRANSACTION
Each of the Parties agrees that a sale transaction or transactions
(whether by way of merger(s), consolidation(s), stock purchase(s) or sale(s) of
substantially all of the business of Holdings as currently conducted, a "SALE
TRANSACTION")) should be pursued by the Board. Promptly upon the execution of
this Agreement, Holdings shall issue a public announcement reasonably
satisfactory to the Consenting Noteholders describing the Recapitalization.
Additionally, contemporaneously with (or promptly after) the filing of the
proxy materials with respect to the Shareholder Vote, Holdings shall issue a
public announcement reasonably satisfactory to the Consenting Noteholders
indicating that Holdings intends to pursue strategic alternatives, including a
Sale Transaction. Specifically, Holdings and the Consenting Noteholders agree
that: (i) Holdings shall retain an investment bank of nationally recognized
standing mutually acceptable to the Board and the Consenting Noteholders (the
"NEW INVESTMENT BANK") on terms mutually acceptable to the Board and the
Consenting Noteholders for the purpose of advising Holdings and its
subsidiaries and the Board on a Sale Transaction; (ii) the New Investment Bank
shall be instructed to begin as soon as practicable to prepare customary sales
brochures, information memoranda and other marketing materials (collectively,
"MATERIALS") necessary to market Holdings and its subsidiaries and/or their
respective assets; (iii) the New Investment Bank shall be instructed to work
with Holdings on the preparation of a data room for purposes of facilitating a
Sale Transaction; and (iv) the New Investment Bank shall be instructed to (A)
identify potential strategic and financial purchasers ("POTENTIAL PURCHASERS")
that it reasonably believes may be interested in participating in a Sale
Transaction (and have the financial wherewithal to successfully consummate a
Sale Transaction) and (B) as the New Investment Bank may reasonably determine
to be desirable, enter into customary and appropriate confidentiality
agreements with one or more of such Potential Purchasers; PROVIDED, that in no
event shall Holdings, Investco, Wireless or their respective agents (including
the New Investment Bank) distribute any Materials or otherwise initiate any
discussions or negotiations with Potential Purchasers in a Sale Transaction
prior to the effective date of the Exchange (except that the New Investment
Bank and counsel to Holdings and Investco may negotiate the terms of the
confidentiality agreements referred to in (B) above). Notwithstanding anything
to the contrary contained in this Agreement (but subject to Section 8.1), at
any time prior to the Closing the Board shall have the right to review
unsolicited proposals from third parties for an Acquisition Proposal, including
but not limited to a Sale Transaction and any unsolicited proposals resulting
from the actions of Holdings and its subsidiaries pursuant to this Section 9.2
("UNSOLICITED PROPOSALS") and respond in good faith to any such proposals,
including negotiating and executing any appropriate confidentiality agreements
with such third parties, providing financial, legal and other information to
such third parties, and negotiating the terms with respect to such proposal, or
taking such other actions as the Board deems appropriate in exercising its
fiduciary duties. Upon receipt of any Unsolicited Proposal, Holdings agrees
that it shall use the New Investment Bank in connection with the evaluation and
negotiation of such proposal; PROVIDED, that the New Investment Bank shall
agree in writing not to disclose the existence or terms of any Unsolicited
Proposal, including the identity of the parties thereto, to any of the
Consenting Noteholders or their representatives.
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SECTION 10. CONDITIONS.
(a) The respective obligations of each Party to effect the
Exchange shall be subject to the satisfaction at or prior to
the Closing of the following conditions:
(i) The Exchange and the Merger Agreement shall have
been approved by holders of a majority of the
outstanding Class A Stock at the Stockholders
Meeting, and the Merger shall have been consummated;
(ii) The waiting periods (and any extensions thereof)
applicable to the Reorganization under the HSR Act
shall have been terminated or shall have expired;
(iii) The FCC Approval shall have been obtained;
(iv) All filings required to be made prior to the Closing
by any Party or any of its respective subsidiaries
with, and all consents, approvals and authorizations
required to be obtained prior to the Closing by any
Party or any of its respective subsidiaries from,
any Governmental Entity in connection with the
execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby
shall have been made or obtained, except where the
failure to obtain such consents, approvals and
authorizations would not cause a Material Adverse
Effect;
(v) No statute, rule, regulation, executive order,
decree, ruling, injunction or other order (whether
temporary, preliminary or permanent) shall have been
enacted, entered, promulgated or enforced by any
Governmental Entity and no other legal restraint or
prohibition shall be in effect which prohibits,
restrains or enjoins the consummation of the
Exchange or the Merger; and
(vi) At least 91.25% of the total outstanding principal
amount of the Notes are tendered for exchange at the
Closing by the Consenting Noteholders pursuant to
Section 2.1.
(b) The obligations of the Consenting Noteholders to effect the
Exchange shall be subject to the satisfaction at or prior to
the Closing of the following additional conditions:
(i) The representations and warranties of Holdings,
Wireless and Investco contained in this Agreement
shall be true and correct (without regard to any
materiality or Material Adverse Effect qualifier
contained therein), on and as of the Closing as if
made at and as of such date, except where the
failure of such representations and warranties to be
true and correct would not reasonably be expected to
have, individually or in the aggregate, a Material
Adverse Effect;
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(ii) Each of Holdings, Wireless and Investco shall have
performed or complied in all material respects with
all obligations required by this Agreement to be
performed or complied with by it at or prior to the
Closing;
(iii) Each of X.X. Xxxxxx Capital, L.P. and Sixty Wall
Street Fund, L.P. shall have converted all their
shares of Class B Stock into shares of Class A Stock
prior to the record date for the Stockholders
Meeting and shall have entered into the Voting and
Lock-Up Agreement;
(iv) The Consenting Noteholders shall have received (or
will receive at the Closing) payment in cash of all
interest accrued through the Closing in respect of
the Notes held by them and tendered in the Exchange;
and
(v) Since September 30, 2006, there shall not have been
any change, circumstance or event which,
individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse
Effect.
(c) The obligations of Holdings, Wireless and Investco to effect
the Exchange shall be subject to the satisfaction at or prior
to the Closing of the following additional conditions:
(i) The representations and warranties of the Consenting
Noteholders contained in this Agreement shall be
true and correct (without regard to any materiality
qualifier contained therein), on and as of the
Closing as if made at and as of such date, except
where the failure of such representations and
warranties to be true and correct would not
reasonably be expected to have, individually or in
the aggregate, a material adverse effect on the
ability of the Consenting Noteholders to consummate
the transactions contemplated by this Agreement;
(ii) The Consenting Noteholders shall have performed or
complied in all material respects with all
obligations required by this Agreement to be
performed or complied with by it at or prior to the
Closing; and
(iii) Supplemental indentures including the Amendments
shall have been validly executed and delivered by
Wireless and the trustee under the indentures
governing the Notes.
SECTION 11. TERMINATION.
11.1. TERMINATION EVENTS.
This Agreement may be terminated at any time before the Closing of the
Exchange (except as otherwise provided), whether before or after the
Shareholder Vote, by written notice from the Requisite Noteholders to Holdings
and Investco or Holdings, Investco and Wireless to the Consenting Noteholders,
as the case may be, as follows:
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(a) by mutual written consent of each of the Requisite
Noteholders and Holdings, Investco and Wireless;
(b) by either the Requisite Noteholders or Holdings, Investco and
Wireless, if delivery of a proxy statement to the holders of
the Class A Stock in respect of the Shareholder Vote does not
take place on or before April 30, 2007;
(c) by either the Requisite Noteholders or Holdings, Investco and
Wireless, if the Recapitalization is not substantially
consummated on or before May 31, 2007;
(d) by either the Requisite Noteholders or Holdings, Investco and
Wireless if there shall have been issued an order, decree or
injunction having the effect of making the Exchange or the
Merger illegal or permanently prohibiting the consummation of
the Exchange or the Merger, and such order, decree or
injunction shall have become final and nonappealable;
(e) by the Requisite Noteholders, if either of Holdings, Investco
or Wireless has breached any material provision of this
Agreement and any such breach remains uncured for a period of
five (5) days after written notice of such breach,
specifically identifying the nature of such breach and the
intent of the Requisite Noteholders to terminate the
Agreement pursuant to this Section 11.1(e), is delivered by
the Requisite Noteholders to Holdings, Investco and Wireless;
(f) by Holdings, Investco and Wireless, if any of the Consenting
Noteholders has breached any material provision of this
Agreement and any such breach remains uncured for a period of
five (5) days after written notice of such breach,
specifically identifying the nature of such breach and the
intent of Holdings, Investco and Wireless to terminate the
Agreement pursuant to this Section 11.1(f), is delivered by
Holdings and Investco to the Consenting Noteholders;
(g) by Holdings, if the Board elects to terminate the Exchange
Agreement in order to accept a Superior Proposal;
(h) by the Requisite Noteholders, if the Board fails to recommend
this Agreement and/or the Merger Agreement to the
shareholders of Holdings, or withdraws such recommendation;
or
(i) by either the Requisite Noteholders or Holdings, Investco and
Wireless, if the Shareholder Vote for approval of the
Exchange and/or the Merger Agreement is not obtained.
11.2. EXPENSES; BREAK-UP FEE.
(a) Except as otherwise provided in this Section 11.2, all
Expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the Party
incurring such Expenses. As used in this Agreement,
"EXPENSES" includes all out-of-pocket expenses (including all
fees and expenses of counsel, accountants, investment
bankers, experts and consultants to a party
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hereto and its affiliates) incurred by a party or on its
behalf in connection with or related to the authorization,
preparation, negotiation, execution and performance of this
Agreement and the transactions contemplated hereby, including
the preparation, printing, filing and mailing of the Proxy
Statement and PPM and the solicitation of stockholder
approvals and all other matters related to the transactions
contemplated hereby.
(b) Notwithstanding the foregoing, if (i) (A) an Acquisition
Proposal has been received by Holdings, Investco, Wireless or
any of their subsidiaries, or their respective
representatives or advisors, or at the time of such
termination an Acquisition Proposal has been publicly
proposed or publicly announced and this Agreement is
terminated by Holdings, Investco and Wireless pursuant to
Section 11.1(b) or Section 11.1(c) or by the Requisite
Noteholders pursuant to Section 11.1(e) and (B) within twelve
(12) months from the date of termination of this Agreement,
Holdings or any of its subsidiaries shall consummate such
Acquisition Proposal (or enter into a definitive agreement
with respect to such Acquisition Proposal that is
subsequently consummated), (ii) this Agreement is terminated
by Holdings pursuant to Section 11.1(g), or (iii) this
Agreement is terminated by the Requisite Noteholders pursuant
to Section 11.1(h), then Holdings shall pay the Consenting
Noteholders an amount equal to the Break-Up Fee, by wire
transfer of immediately available funds to an account
designated by the Consenting Noteholders, within (x) in the
case of clause (i) above, within two business days following
the consummation of the applicable Acquisition Proposal and
(y) in the case of clause (ii) and (iii) above, within two
business days after the termination of this Agreement.
Holdings's payment of a Break-Up Fee to Section 11.2 shall be
the sole and exclusive remedy of the Consenting Noteholders
against Holdings and any of its subsidiaries and their
respective directors, officers, employees, agents, advisors
or other representatives with respect to the occurrences
giving rise to such payment; PROVIDED that this limitation
shall not apply in the event of a willful breach of this
Agreement by Holdings, Investco or Wireless. In no event
shall Holdings be required to pay more than one Break-Up Fee
pursuant to this Section 11.2. The "BREAK-UP FEE" shall be an
amount to each Consenting Noteholder equal to 2.0% of the
total outstanding principal amount of the Notes held by such
Consenting Noteholder as of the date of this Agreement, as
indicated for such Consenting Noteholder on Schedule I
hereto.
(c) Whether or not the Exchange is consummated, Holdings agrees
that it shall cause Wireless to pay, on a monthly basis, the
reasonable fees and expenses of Wachtell, Lipton, Xxxxx &
Xxxx (billed in the manner that the firm has previously
billed Holdings), counsel to the Consenting Noteholders,
incurred, whether before or after the date hereof, in
connection with the transactions contemplated by this
Agreement; PROVIDED, that the aggregate amount of such fees
and expenses that Holdings shall be required to pay shall not
exceed $1,000,000.
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11.3. EFFECT OF TERMINATION.
In the event of termination of this Agreement by either the Consenting
Noteholders or Holdings and Investco as provided in Section 11.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of the Consenting Noteholders or Holdings or Investco or
their respective officers, members or directors, as applicable, except as (i)
set forth in Section 11.2, (ii) with respect to any actual liabilities or
damages incurred or suffered by a Party as a result of the willful breach by
the other Party of any of its representations, warranties, covenants or other
agreements set forth in this Agreement, and (iii) with respect to provisions
hereof that expressly survive the termination of this Agreement.
SECTION 12. EFFECTIVENESS OF THE AGREEMENT.
This Agreement shall become effective when Holdings and Investco and
counsel to the Consenting Noteholders shall have received counterparts hereof
duly executed and delivered by: (i) Consenting Noteholders holding Relevant
Interests constituting at least 91.25% of the aggregate outstanding principal
amount of the Notes; and (ii) Holdings, Investco and Wireless.
SECTION 13. NO WAIVER OF PARTICIPATION AND RESERVATION OF RIGHTS.
Except as expressly provided in this Agreement (including, without
limitation, the provisions of Sections 3.1(b)(iii) and 8.2), nothing herein is
intended to, does, or shall be deemed in any manner to waive, limit, impair, or
restrict the ability of each of the Consenting Noteholders to protect and
preserve its rights, remedies and interests, including without limitation, its
claims against Holdings, Investco and Wireless. Without limiting the foregoing
sentence in any way, if the transactions contemplated by this Agreement are not
consummated or if this Agreement is otherwise terminated for any reason, the
Parties each fully reserve any and all rights, remedies and interests.
SECTION 14. MISCELLANEOUS TERMS.
14.1. BINDING OBLIGATION, ASSIGNMENT, NO RECOURSE.
(a) BINDING OBLIGATION. Subject to, in the case of Holdings, the
Shareholder Vote, this Agreement is a legally valid and
binding obligation of the Parties and their respective
successors, assigns, heirs, executors, administrators and
representatives, enforceable in accordance with its terms,
and shall inure to the benefit of the Parties and their
respective successors, assigns, heirs, executors,
administrators and representatives. Except as set forth in
Section 8.2 hereof, nothing in this Agreement, express or
implied, shall give to any Person, other than the Parties and
their respective successors, assigns, heirs, executors,
administrators and representatives, any benefit or any regal
or equitable right, remedy or claim under this Agreement. The
agreements, representations, warranties, covenants and
obligations of the Consenting Noteholders contained in this
Agreement are, in all respects, several and not joint. Except
for the obligations of the Consenting Noteholders under
Sections 2.5, 4, 6, 8.2, 8.3, 9, 11.2(a), 11.2(c), 13 and 14,
all obligations of the Consenting Noteholders under this
Agreement shall terminate upon consummation of the Closing.
-29-
(b) ASSIGNMENT. No rights or obligations of any Party under this
Agreement may be assigned or transferred to any other Person
except as provided in Section 3.2 hereof.
(c) NO RECOURSE. This Agreement may only be enforced against, and
any claims or causes of action that may be based upon, arise
out of or relate to this Agreement, or the negotiation,
execution or performance of this Agreement may only be made
against the entities that are expressly identified as Parties
hereto and no past, present or future affiliate, director,
officer, employee, incorporator, member, manager, partner,
stockholder, agent, attorney or representative of any Party
hereto shall have any liability for any obligations or
liabilities of the Parties to this Agreement or for any claim
based on, in respect of, or by reason of, the transactions
contemplated hereby.
14.2. FURTHER ASSURANCES.
The Parties agree to execute and deliver such other instruments and
perform such acts, in addition to the matters herein specified, as may be
reasonably appropriate or necessary, from time to time, to effectuate the
agreements and understandings of the Parties, whether the same occurs before or
after the date of this Agreement.
14.3. HEADINGS.
The headings of all sections of this Agreement are inserted solely for
the convenience of reference and are not a part of and are not intended to
govern, limit or aid in the construction or interpretation of any term or
provision hereof.
14.4. GOVERNING LAW.
THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN SUCH STATE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS PRINCIPLES
THEREOF. By its execution and delivery of this Agreement, each of the Parties
hereto hereby irrevocably and unconditionally agrees for itself that any legal
action, suit or proceeding against it with respect to any matter under or
arising out of or in connection with this Agreement or for recognition or
enforcement of any judgment rendered in any such action, suit or proceeding,
may be brought in either a state or federal court of competent jurisdiction in
the State of New York. By execution and delivery of this Agreement, each of the
Parties hereto hereby irrevocably accepts and submits itself to the
nonexclusive jurisdiction of each such court, generally and unconditionally,
with respect to any such action, suit or proceeding.
14.5. COMPLETE AGREEMENT, INTERPRETATION AND MODIFICATION.
(a) COMPLETE AGREEMENT. The Agreement and the other agreements
referenced herein constitute the complete agreement between
the Parties with respect to the subject matter hereof and
supersedes all prior agreements, oral or written, between or
among the Parties with respect thereto.
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(b) INTERPRETATION. This Agreement is the product of negotiation
by and among the Parties. Any Party enforcing or interpreting
this agreement shall interpret it in a neutral manner. There
shall be no presumption concerning whether to interpret the
Agreement for or against any Party by reason of that Party
having drafted this Agreement, or any portion thereof, or
caused it or any portion thereof to be drafted.
(c) MODIFICATION OF THE AGREEMENT. This Agreement may only be
modified, altered, amended or supplemented by an agreement in
writing signed by Holdings, Investco and the Requisite
Noteholders; PROVIDED, HOWEVER, that if the modification or
amendment at issue materially adversely impacts the economic
treatment or rights of any Consenting Noteholder, the
agreement in writing of such Consenting Noteholder whose
economic treatment or rights are materially adversely
impacted shall also be required for such modification or
amendment.
(d) WAIVER. At any time prior to the Closing, any Party may (a)
extend the time for the performance of any of the obligations
or other acts of the other Parties hereto, (b) waive any
inaccuracies in the representations and warranties of the
other Parties contained herein or in any document delivered
pursuant hereto and (c) waive compliance by any other Party
with any of the agreements or conditions contained herein.
Any such extension or waiver shall be valid if set forth in
an instrument in writing signed by the Party or Parties to be
bound thereby. The failure of any Party to this Agreement to
assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
14.6. SPECIFIC PERFORMANCE.
The Parties understand and agree that money damages may not be a
sufficient remedy for any breach of this Agreement by any Party, and further
understand and agree that each non-breaching Party shall be entitled to seek
(upon proper proof) the remedy of specific performance and injunctive or other
equitable relief, including attorneys fees and costs, as a non-exclusive remedy
of any such breach; PROVIDED, HOWEVER, that each Party agrees to waive any
requirement for the securing or posting of a bond in connection with such a
remedy.
14.7. EXECUTION OF AGREEMENT.
This Agreement may be executed and delivered (by facsimile or
otherwise) in any number of counterparts, each of which, when executed and
delivered, shall be deemed an original, and all of which together shall
constitute the same agreement. Except as expressly provided in this Agreement,
each individual executing this Agreement on behalf of a Party has been duly
authorized and empowered to execute and deliver this Agreement on behalf of
said Party.
14.8. INDEPENDENT DUE DILIGENCE AND DECISION-MAKING.
Each Consenting Noteholder hereby confirms that its decision to
execute this Agreement has been based upon its independent investigation of the
operations, businesses, financial and other conditions and prospect of Holdings
and its subsidiaries.
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14.9. CONSIDERATION.
Holdings, Investco and each Consenting Noteholder hereby acknowledge
that no additional consideration shall be due or paid to the Consenting
Noteholders for their agreement to vote in favor of the Recapitalization or to
tender in the Exchange or to consent to the Amendments in accordance with the
terms and conditions of this Agreement, other than Holdings' and Investco's
agreements to use commercially reasonable efforts to consummate the
Recapitalization in accordance with the terms and conditions of this Agreement.
14.10. NOTICES.
All notices hereunder shall be deemed given if in writing and
delivered, if sent by telecopy, courier or by registered or certified mail
(return receipt requested) to the following addresses and telecopier numbers
(or at such other addresses or telecopier numbers as shall be specified by like
notice):
(a) If to Holdings, Wireless and/or Investco, to:
SunCom Wireless Holdings, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
(000) 000-0000 (phone)
(000) 000-0000 (facsimile)
WITH COPIES TO:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Simeon Gold, Esq.
Xxxxxx X. Xxxxxxxxx, Esq.
Telecopier: (000) 000-0000
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: W. Xxxxxx Xxx, Esq.
Telecopier: (000) 000-0000
(b) If to a Consenting Noteholder or a transferee thereof, to the
addresses or telecopier numbers set forth on Schedule III
hereto (or as directed by any transferee thereof), as the
case may be, with a copy to:
-00-
Xxxxxxxx, Xxxxxx, Xxxxx & Xxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
Telecopier: (000) 000-0000
Any notice given by delivery, mail or courier shall be effective when
received. Any notice given by telecopier shall be effective upon oral or
machine confirmation of transmission.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth above.
SUNCOM WIRELESS HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUNCOM WIRELESS INVESTMENT COMPANY, LLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUNCOM WIRELESS, INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
[SIGNATURES CONTINUED ON FOLLOWING PAGES]
[Signature Page to Exchange Agreement]
PARDUS EUROPEAN SPECIAL OPPORTUNITIES
MASTER FUND L.P.
By: Pardus Capital Management LP,
its Investment Manager
By: Pardus Capital Management LLC,
its general partner
By: /s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Sole Member
[Signature Page to Exchange Agreement]
CAPITAL RESEARCH AND MANAGEMENT COMPANY,
for and on behalf of American High-Income
Trust
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
CAPITAL RESEARCH AND MANAGEMENT COMPANY,
for and on behalf of The Bond Fund of
America, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
CAPITAL RESEARCH AND MANAGEMENT COMPANY,
for and on behalf of The Income Fund of
America, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President and Secretary
[Signature Page to Exchange Agreement]
LISPENARD STREET CREDIT (MASTER), LTD
By: XxXxxx Xxxxx Capital LLC,
its investment manager
By: /s/ Xxx Xxxxxxx
------------------------------------
Name: Xxx Xxxxxxx
Title: Partner and Chief
Operating Officer
POND VIEW CREDIT (MASTER), L.P.
By: XxXxxx Xxxxx Capital LLC,
its investment manager
By: /s/ Xxx Xxxxxxx
------------------------------------
Name: Xxx Xxxxxxx
Title: Partner and Chief
Operating Officer
[Signature Page to Exchange Agreement]
HIGHLAND CREDIT OPPORTUNITIES CDO, L.P.
By: Highland Credit Opportunities CDO GP,
L.P., its general partner
By: Highland Credit Opportunities CDO GP,
LLC, its general partner
By: Highland Capital Management, L.P.,
its sole member
By: Strand Advisors, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Strand Advisors, Inc.,
General Partner of
Highland Capital
Management, L.P.
HIGHLAND SPECIAL OPPORTUNITIES HOLDING
COMPANY
By: Highland Capital Management, L.P.,
as Collateral Manager
By: Strand Advisors, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Strand Advisors, Inc.,
General Partner of
Highland Capital
Management, L.P.
[Signature Page to Exchange Agreement]
HIGHLAND CRUSADER OFFSHORE PARTNERS, L.P.
By: Highland Crusader Fund GP, L.P.,
its general partner
By: Highland Crusader GP, LLC.,
its general partner
By: Highland Capital Management, L.P.,
its sole member
By: Strand Advisors, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Strand Advisors, Inc.,
General Partner of
Highland Capital
Management, L.P.
HIGHLAND CREDIT STRATEGIES MASTER FUND, L.P.
By: Highland General Partner, L.P.,
its general partner
By: Highland GP Holdings LLC,
its general partner
By: Highland Capital Management, LP,
its sole member
By: Strand Advisors, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Strand Advisors, Inc.,
General Partner of
Highland Capital
Management, L.P.
[Signature Page to Exchange Agreement]
HIGHLAND CDO OPPORTUNITY MASTER FUND, L.P.
By: Highland CDO Opportunity Fund GP, L.P.,
its general partner
By: Highland CDO Opportunity Fund GP, LLC.,
its general partner
By: Highland Capital Management, L.P.,
its sole member
By: Strand Advisors, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Strand Advisors, Inc.,
General Partner of
Highland Capital
Management, L.P.
HIGHLAND CAPITAL MANAGEMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name: Xxxx X. Xxxxx
Title: Officer
[Signature Page to Exchange Agreement]
