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Confidential Treatment
Note: Certain material has been omitted from this document pursuant to a request
for confidential treatment and has been filed separately with the SEC. Notations
of [REDACTED]* have been used to indicate such an omission.
EXHIBIT 10.25
AMENDMENT AND CONSENT
AMENDMENT AND CONSENT, dated as of March 30, 2001, to the CREDIT
AGREEMENT, dated as of July 2, 1998 (the "Credit Agreement"), among Teligent,
Inc., a Delaware corporation (the "Borrower"), the Lenders from time to time
parties thereto, Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent,
Toronto Dominion (Texas), Inc., as Documentation Agent, and The Chase Manhattan
Bank, as Administrative Agent.
W I T N E S S E T H :
WHEREAS, each of the Lenders is a party to the Credit Agreement
pursuant to which the Borrower may borrow from time to time Optional Term Loans
in an aggregate face amount of up to $400,000,000 (the "Original Optional Term
Facility Amount"); and
WHEREAS, the Borrower wishes to increase the Original Optional
Term Facility Amount from $400,000,000 up to $600,000,000 (as so increased, the
"New Optional Term Facility Amount"); and
WHEREAS, the Borrower wishes to utilize a portion, not in excess
of $350,000,000, of the New Optional Term Facility Amount as an optional vendor
financing facility; and
WHEREAS, the Borrower wishes to allow certain vendors to the
Borrower to become parties to the Credit Agreement from time to time after the
Effective Date (as defined below) until December 31, 2001; and
WHEREAS, the parties have agreed to modify certain of the
covenants and other terms in the Credit Agreement as set forth herein;
NOW, THEREFORE, the Borrower, the Administrative Agent, and the
Required Prepayment Lenders hereby agree as follows:
1. Defined Terms. Capitalized terms used herein without
definition shall have the meaning ascribed to such terms in the Credit
Agreement.
2. Amendment to Section 1.1 - Defined Terms. (a) The following
definitions are hereby amended so that they shall read in their entirety
respectively as follows:
"Applicable Margin": (a) for Tranche A Term Loans, Delayed Draw
Term Loans, Conversion Term Loans and Revolving Credit Loans,
[REDACTED] per annum, in the case of Eurodollar Loans, and
[REDACTED], in the case of ABR Loans, and (b) for each Type of
Optional Term Loans of each Tranche, the rate per annum for such
Tranche and Type determined in accordance with the Optional Term
Loan Amendment executed for such Tranche pursuant to Section 2.7.
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"Asset Sale": (i) any Disposition of Non-Core Assets (excluding
any such Disposition permitted by clause (a), (b), (d), (e) or
(g) of Section 6.5) and (ii) the entering into of one or more
management agreements with respect to spectrum by any Restricted
Subsidiary to any Unrestricted Subsidiary or other Person;
provided, that such agreements are (A) compliant with all
material terms of this Agreement as determined by the
Administrative Agent in good faith (including, without
limitation, that all Net Cash Proceeds of such management
agreement shall be applied in accordance with Section 2.13) and
(B) reasonably satisfactory in form and substance to FCC counsel
to the Lenders.
"Consolidated Cash Interest Expense": for any fiscal quarter,
total cash interest expense (including that attributable to
Capital Lease Obligations) of the Borrower and its Restricted
Subsidiaries to be paid during such fiscal quarter (including,
without limitation, all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers'
acceptance financing and net costs under hedge agreements in
respect of interest rates to the extent such net costs are
allocable to such fiscal quarter in accordance with GAAP) as
reasonably determined by the Borrower on the basis of (i) the
aggregate amount of Indebtedness of the Borrower and its
Restricted Subsidiaries outstanding on the first day of such
fiscal quarter and (ii) interest rates applicable to such
Indebtedness on such date.
"Consolidated Fixed Charge Coverage Ratio": (a) from the
Amendment Effective Date through the fiscal quarter ending
September 30, 2003, on the last day of any fiscal quarter, the
ratio of (i) the amount of Consolidated EBITDA required pursuant
to Section 6.1(k) for the fiscal quarter immediately following
such last day, to the extent that Consolidated EBITDA for such
fiscal quarter is negative, plus the sum of (A) the amount of
cash and Cash Equivalents held by the Borrower and its Restricted
Subsidiaries, (B) the Available Revolving Credit Commitments, (C)
the Available Tranche A Term Loan Commitments, (D) the Available
Delayed Draw Term Loan Commitments, and (E) any available unused
Optional Non-Vendor Loan Commitments, in each case, determined as
of such last day to (ii) Consolidated Fixed Charges for the
fiscal quarter immediately following such last day and (b) from
the fiscal quarter ending December 31, 2003 and thereafter, for
any period of four consecutive fiscal quarters, the ratio of (i)
Consolidated EBITDA for such period plus the sum of (A) the
Available Revolving Credit Commitments, (B) the Available Tranche
A Term Loan Commitments, (C) the Available Delayed Draw Term Loan
Commitments, and (D) any available unused Optional Non-Vendor
Term Loan Commitments, in each case, determined as of the last
day of such period of four consecutive fiscal quarters to (ii)
Consolidated Fixed Charges for such period of four consecutive
fiscal quarters.
"Consolidated Fixed Charges": (a) from the Amendment Effective
Date through the fiscal quarter ending September 30, 2003, for
any fiscal quarter, the sum (without duplication) of (i)
Consolidated Cash Interest Expense for such fiscal quarter, (ii)
projected cash income taxes to be paid by the Borrower or any of
its Restricted Subsidiaries on a consolidated basis in respect of
such fiscal quarter, (iii) preferred dividends required to be
paid in cash in such fiscal quarter and (iv)
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scheduled payments to be made during such fiscal quarter on
account of principal of Indebtedness of the Borrower or any of
its Restricted Subsidiaries and (b) from the fiscal quarter
ending December 31, 2003 and thereafter, for any period of four
consecutive fiscal quarters, the sum (without duplication) of (i)
Consolidated Cash Interest Expense for such period, (ii)
provision for cash income taxes made by the Borrower or any of
its Restricted Subsidiaries on a consolidated basis in respect of
such period and (iii) scheduled payments made during such period
on account of principal of Indebtedness of the Borrower or any of
its Restricted Subsidiaries.
"Consolidated Secured Debt": all Consolidated Total Debt,
excluding the Convertible Notes, secured pursuant to the Security
Documents or by any other security interest in any assets of the
Borrower or any of its Restricted Subsidiaries.
"Default": any of the events specified in Section 7, whether or
not any requirement for the giving of notice, the lapse of time,
or both, has been satisfied.
"Existing Affiliate Transactions": (a) transactions pursuant to
the Administrative Services Agreement, dated as of March 5, 1996,
between the Borrower (formerly DMT, LLC) and Microwave Services,
Inc., a Subsidiary of Associated Group, Inc. as in effect on the
date hereof, and as such agreement may be amended from time to
time in a manner no less favorable to the Lenders, (b)
transactions pursuant to the Technical Services Agreement, dated
as of October 22, 1997, between the Company and NTT America, Inc.
as in effect on the date hereof, and as such agreement may be
amended from time to time in a manner no less favorable to the
Lenders, (c) transactions pursuant to the Stockholders Agreement,
dated as of November 26, 1997, between the Borrower, NTT America,
Inc. and certain other stockholders of the Borrower as in effect
on the date hereof and as such agreement may be amended from time
to time in a manner no less favorable to the Lenders, (d)
transactions pursuant to the Shareholders Agreement, dated
January 13, 2000, by and among Xxxx X. Xxxxx, Liberty Media
Corporation, Telcom-DTS Investors, L.L.C. and Microwave Services,
Inc. as in effect on the date hereof and as such agreement may be
amended from time to time in a manner no less favorable to the
Lenders, (e) transactions pursuant to the Joint Venture
Agreement, dated April 11, 2000, by and between Teligent
International Ltd., Telcom Ventures LLC, BA Investments, Ltd.,
and Argentina Telecom Holdings, Ltd. as in effect on the date
hereof and as such agreement may be amended from time to time in
a manner no less favorable to the Lenders, and (f) transactions
pursuant to arrangements in effect on the Closing Date in an
aggregate amount not to exceed $5,000,000.
"Facility": each of (a) the Tranche A Term Loan Commitments and
the Tranche A Term Loans made thereunder (the "Tranche A Term
Loan Facility"), (b) the Delayed Draw Term Loan Commitments and
the Delayed Draw Term Loans made thereunder (the "Delayed Draw
Term Loan Facility"), (c) the Conversion Term Loans (the
"Conversion Term Loan Facility"), (d) the Optional Non-Vendor
Loan Commitments, if any, and the Optional Non-Vendor Loans made
thereunder (the "Optional Non-Vendor Loan Facility"), (e) the
Optional Vendor Commitments, if any, and the Optional Vendor
Loans made thereunder (the
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"Optional Vendor Loan Facility") and (f) the Revolving Credit
Commitments and the Revolving Credit Loans made thereunder
(the "Revolving Credit Facility").
"Majority Facility Lenders": at any time, with respect to any
Facility, the holders of more than 50% of the aggregate unpaid
principal amount of the Loans outstanding under such Facility
plus the aggregate amount of undrawn Commitments then in effect
under such Facility.
"Optional Term Loan": any Optional Non-Vendor Loan and any
Optional Vendor Loan.
"Optional Term Loan Commitment": any Optional Non-Vendor Loan
Commitment and any Optional Vendor Commitment.
"Optional Term Loan Lender": any Optional Non-Vendor Loan Lender
and any Optional Vendor Loan Lender.
"Optional Term Loan Tranche": any Optional Non-Vendor Loan
Tranche and any Optional Vendor Loan Tranche.
"Required Lenders": at any time, the holders of more than 50% of
the aggregate unpaid principal amount of the Loans then
outstanding plus the aggregate amount of undrawn Commitments
(other than Optional Vendor Commitments) then in effect.
(b) Section 1.1 is hereby further amended by adding thereto the
following new definitions in proper alphabetical order:
"Amendment Effective Date": the "Effective Date" as defined in
the Amendment, dated as of March 30, 2001, to this Agreement.
"Collateral and Securities Account": as defined in Section 6.13.
"Convertible Notes": notes issued by the Borrower to such Person
or Persons as determined by the Borrower, substantially in the
form and having the terms set forth in Exhibit A to the
Amendment, dated as of March 30, 2001, to this Agreement; such
terms shall in any event include subordination of such notes, in
right of payment, to the Obligations, and subordination of any
security interest securing such notes to the security interest of
the Collateral Agent, in each case pursuant to subordination and
intercreditor provisions reasonably acceptable to the
Administrative Agent.
"New Lender Supplement": the agreement made pursuant to Section
2.7 substantially in the form of Exhibit J.
"Non-Core Assets": at any time of determination (i) all
international licenses held by the Borrower or any of its
Subsidiaries in markets where full-scale commercial service has
not been launched at such time and (ii) all international joint
ventures and international Subsidiaries, which, in the case of
clauses (i) and (ii) above, are not material to the business,
property or condition (financial or otherwise) of the Borrower
and its Subsidiaries taken as a whole.
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"Operating Accounts": as defined in Section 6.13.
"Optional Non-Vendor Loan Commitment": as to any Lender, the
obligation of such Lender, if any, to make an Optional Non-Vendor
Loan to the Borrower hereunder in a principal amount not to
exceed the amount set forth in the Optional Term Loan Amendment
related thereto.
"Optional Non-Vendor Loan": as defined in Section 2.7.
"Optional Non-Vendor Loan Lender": each Lender which has an
Optional Non-Vendor Commitment or which is the holder of an
Optional Non-Vendor Loan.
"Optional Non-Vendor Loan Tranche": as defined in Section 2.7.
"Optional Vendor Commitment": as to any Optional Vendor Loan
Lender, the obligation of such Optional Vendor Loan Lender, if
any, to make an Optional Vendor Loan to the Borrower hereunder in
a principal amount not to exceed the amount set forth in the
Optional Term Loan Amendment related thereto.
"Optional Vendor Loan": as defined in Section 2.7.
"Optional Vendor Loan Lender": each Lender which has an Optional
Vendor Commitment or which is the holder of an Optional Vendor
Loan.
"Optional Vendor Loan Tranche": as defined in Section 2.7.
"Vendor": a vendor of plant, property, services or equipment
and/or similar or related Property to the Borrower or its
Subsidiaries, the sale or other provision of which is financed,
in whole or in part, pursuant to Optional Vendor Loans.
(c) Section 1.1 is hereby further amended by deleting the
definition of "Unused Proceeds Basket".
3. Amendment to Section 2.7. Section 2.7 is hereby amended so
that it shall read in its entirety as follows:
(a) Optional Non-Vendor Loans. Subject to the terms and
conditions hereof, the Borrower may, with the consent of the
Required Lenders, at any time and from time to time prior to
December 31, 2001, establish one or more additional non-vendor
term loan tranches (each, an "Optional Non-Vendor Loan Tranche")
pursuant to which non-vendor term loans ("Optional Non-Vendor
Loans") may be made, provided, (i) each Optional Non-Vendor Loan
Tranche shall be in a principal amount of at least $50,000,000
and (ii) all Optional Non-Vendor Loan Tranches shall not exceed
in the aggregate the difference of (A) $600,000,000 less (B) the
aggregate amount of Optional Vendor Loan Tranches then in effect.
The Borrower may offer to any existing Lender, or to one or more
additional banks, financial institutions or other entities
reasonably acceptable to the Administrative Agent, the
opportunity to participate in all or a portion of an Optional
Non-Vendor Loan Tranche.
(b) Optional Vendor Loans. Subject to the terms and conditions
hereof, the
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Borrower may at any time and from time to time prior to December
31, 2001, establish one or more vendor loan tranches (each, an
"Optional Vendor Loan Tranche") pursuant to which vendor loans
("Optional Vendor Loans") may be made by one or more Vendors,
provided, (i) each Optional Vendor Loan Tranche shall be in a
principal amount of at least $50,000,000 and (ii) all Optional
Vendor Loan Tranches shall not exceed $350,000,000 in the
aggregate or, if less, the difference of (A) $600,000,000 less
(B) the aggregate amount of Optional Non-Vendor Loan Tranches
then in effect. The Borrower may offer to any existing Optional
Vendor Loan Lender, or to one or more additional Vendors
reasonably acceptable to the Administrative Agent, the
opportunity to participate in all or a portion of an Optional
Vendor Loan Tranche. Proceeds of Optional Vendor Loans may be
used only to finance Capital Expenditures and services related to
Capital Expenditures.
(c) Optional Term Loan Procedures. The Borrower shall request the
establishment of an Optional Term Loan Tranche by delivery to the
Administrative Agent of a written request therefor (an "Optional
Term Loan Request") which shall be promptly distributed by the
Administrative Agent to the applicable Lenders. Each Optional
Term Loan Request shall (i) set forth the aggregate principal
amount of the requested Optional Term Loan Tranche and the
Applicable Margin (or, if applicable, the formula for the
calculation thereof) and the commitment fee rate, if any,
applicable to the Optional Term Loans to be made under such
Optional Term Loan Tranche, the amortization and maturity date of
such Optional Term Loans and the borrowing procedures relating to
the borrowing by the Borrower of such Optional Term Loans and
(ii) if applicable, be accompanied by such information as the
Administrative Agent shall reasonably request for use in
syndication of the requested Optional Term Loans. All Optional
Term Loans shall (I) have a Weighted Average Life (calculated on
the date the related Optional Term Loan Tranche shall become
effective) that is at least as long as the then Weighted Average
Life (calculated on such date) of the Revolving Credit
Commitments and the Term Loans, taken as a whole, (II) have a
final scheduled maturity date on or after December 31, 2006,
(III) bear interest at rates no higher than those applicable to
the Tranche A Term Loans, (IV) otherwise be subject to the same
terms and conditions as the other Term Loans outstanding
hereunder, (V) be subject to no other conditions other than, in
the case of Optional Vendor Loans, the requirement that the
proceeds be used to purchase equipment and/or services from or
through the applicable Vendors and (VI) be in form and substance
otherwise reasonably satisfactory to the Administrative Agent. No
Lender shall have any obligation to participate in any Optional
Term Loan Tranche unless it agrees to do so in its sole
discretion. All Optional Term Loan Tranches shall not exceed
$600,000,000 in the aggregate.
(d) New Lenders. In the case of any Optional Non-Vendor Loan
Tranche, any banks, financial institutions or other entities,
and, in the case of any Optional Vendor Loan Tranche, any Vendor,
which elects to become a party to this Agreement and obtain an
Optional Term Loan Commitment pursuant to this Section 2.7 shall
execute a New Lender Supplement (each, a "New Lender Supplement")
with the Borrower and the Administrative Agent, substantially in
the form of Exhibit J, whereupon such lender (herein called a
"New Lender")
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shall become an Optional Term Loan Lender for all purposes and to
the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this Agreement and the
other Loan Documents, and Schedule 1.1 shall be deemed to be
amended to add the name and Optional Non-Vendor Loan Commitment
or Optional Vendor Commitment, as applicable, of such New Lender.
(e) Conditions to Effectiveness. The effectiveness of any
Optional Term Loan Tranche shall be contingent upon (i) execution
and delivery by the Administrative Agent, the Borrower and each
Lender providing Optional Term Loan Commitments under such
Optional Term Loan Tranche of an Optional Term Loan Amendment
relating to such Optional Term Loan Tranche, (ii) receipt by the
Administrative Agent of such corporate resolutions and officer's
certificates of the Borrower and legal opinions of counsel to the
Borrower as the Administrative Agent shall reasonably request
with respect thereto, and (iii), if applicable, execution and
delivery by the Borrower, the Administrative Agent and each New
Lender providing Optional Term Loan Commitments under such
Optional Term Loan Tranche of the New Lender Supplement, in each
case in form and substance reasonably satisfactory to the
Administrative Agent. The Borrower and the Administrative Agent
agree to negotiate in good faith any Optional Term Loan Amendment
relating to any Optional Term Loan Tranche.
4. Amendment to Section 2.12. Section 2.12 is hereby amended
so that it shall read in its entirety as follows:
Optional Prepayments. The Borrower may at any time and from time
to time prepay the Term Loans and reduce the Revolving Credit
Commitments, in whole or in part, without premium or penalty
except as provided in the last sentence of this Section, upon
irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans
and at least one Business Day prior thereto in the case of ABR
Loans, which notice shall specify the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans or
ABR Loans; provided, that if a Eurodollar Loan is prepaid on any
day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant
to Section 2.22; provided, further, that any prepayment made
pursuant to this Section 2.12 shall be applied pro rata to (i)
the Tranche A Term Loans, (ii) the Conversion Term Loans, (iii)
the Optional Term Loans, (iv) the reduction of the Delayed Draw
Term Loans and (v) the reduction of the Revolving Credit
Commitments. Upon receipt of any such notice the Administrative
Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with
accrued interest to such date on the amount prepaid. Any
reduction of the Revolving Credit Commitments pursuant to this
Section 2.12 shall be accompanied by prepayment of the Revolving
Credit Loans to the extent, if any, that the aggregate
outstanding principal amount of Revolving Credit Loans exceeds
the amount of the Total Revolving Credit Commitments as so
reduced. Partial prepayments of Term Loans and Revolving Credit
Commitments shall be in an aggregate principal amount of
$1,000,000 or a whole multiple thereof. Optional prepayments of
the
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Term Loans occurring prior to the first anniversary of the
Closing Date shall be accompanied by a prepayment fee equal to 3%
of the amount of such prepayment.
5. Amendment to Section 2.13. (a) Section 2.13(b) is hereby
amended so that it shall read in its entirety as follows:
(b) Unless the Required Prepayment Lenders shall otherwise agree,
if on any date the Borrower or any of its Subsidiaries shall
receive Net Cash Proceeds from any Asset Sale or Recovery Event
by the Borrower or its Subsidiaries then, unless a Reinvestment
Notice shall be delivered in respect thereof within five Business
Days after receipt of such Net Cash Proceeds, such Net Cash
Proceeds shall be applied on such date toward the prepayment of
the Term Loans and the reduction of the Revolving Credit
Commitments as set forth in Section 2.13(d); provided, that, on
each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the
Term Loans and the reduction of the Revolving Credit Commitments
as set forth in Section 2.13(d); and provided, further, that (i)
the Borrower may not at any time deliver a Reinvestment Notice
with respect to more than 35% of the Net Cash Proceeds of any
Asset Sale and (ii) any Net Cash Proceeds of Asset Sales in
respect of which Reinvestment Notices have been delivered shall
be reinvested in tangible Property, including the installation
thereof and services reasonably related to such installation,
located in the United States of America useful in the business of
the Borrower consistent with its past practice and with normal
industry practice in accordance with this Section 2.13. If at any
time the aggregate amount of Net Cash Proceeds of Asset Sales in
respect of which Reinvestment Notices have been delivered shall
exceed 35% of the aggregate amount of Net Cash Proceeds
theretofore received from Asset Sales, then the Borrower promptly
shall apply such excess over 35% in accordance with Section
2.13(d). In addition, if at any time the aggregate amount of Net
Cash Proceeds in respect of which Reinvestment Notices have been
delivered and which have not been reinvested in accordance with
such Reinvestment Notices or applied in accordance with Section
2.13(d) shall exceed $5,000,000, then the Borrower promptly shall
deliver such excess over $5,000,000 to the Collateral Agent to be
held by it in accordance with the Collateral Agency and
Intercreditor Agreement.
(b) Section 2.13(d) is hereby amended so that it shall read in
its entirety as follows:
(d) Amounts to be applied in connection with prepayments and
Commitment reductions made pursuant to Section 2.13(a), (b) or
(c) or Section 6.6 shall be applied to the prepayment of the Term
Loans, the reduction of the Revolving Credit Commitments and the
reduction of any Delayed Draw Term Loan Commitments then unused
and in effect, pro rata according to the respective amounts of
the outstanding Term Loans, outstanding Revolving Credit
Commitments and unused Delayed Draw Term Loan Commitments then in
effect. Any such reduction of the Revolving Credit Commitments
shall be accompanied by prepayment of the Revolving Credit Loans
to the extent, if any, that the aggregate outstanding principal
amount of Revolving Credit Loans exceeds the
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amount of the Total Revolving Credit Commitments as so reduced.
The application of any prepayment pursuant to this Section shall
be made first to ABR Loans and second to Eurodollar Loans. Each
prepayment of the Loans under this Section (except in the case of
Revolving Credit Loans that are ABR Loans) shall be accompanied
by accrued interest to the date of such prepayment on the amount
prepaid. No prepayment fee shall be payable in connection with
any prepayment or Commitment reduction required by paragraphs (a)
through (c) above.
(c) Section 2.13(e) is hereby amended so that it shall read in
its entirety as follows:
(e) [Reserved.]
6. Amendment to Lead-In to Section 5. The lead-in to Section
5 is hereby amended so that it shall read in its entirety as follows:
The Borrower hereby agrees that, so long as any Commitment
remains in effect or any Loan or other amount is owing to any
Lender or any Agent hereunder, the Borrower shall and, except in
the case of delivery of financial statements and information,
reports and notices and except in the case of agreements pursuant
to Section 5.12 and 5.13 hereof, shall cause each of its
Restricted Subsidiaries to:
7. Waiver to Section 5.1(a). The requirement of Section
5.1(a) of the Credit Agreement that the independent certified public
accountants' report which accompanies the audited financial statements shall
not contain a "`going concern' or like qualification or exception" shall be
waived for the fiscal year ended December 31, 2000 insofar as such "going
concern" qualification results from the Borrower having incurred recurring
operating losses and having a substantial need for working capital.
8. Amendment to Section 5.2(d). Section 5.2(d) is hereby
amended so that it shall read in its entirety as follows:
(d) concurrently with the delivery of any financial statements
pursuant to Section 5.1, a narrative discussion and analysis of
the financial condition and results of operations of the Borrower
and its Subsidiaries for such fiscal quarter and for the period
from the beginning of the then current fiscal year to the end of
such fiscal quarter, as compared to the portion of the
Projections covering such periods and to the comparable periods
of the previous year;
9. Amendment to Section 5.10. (a) Section 5.10(a) is hereby
amended so that it shall read in its entirety as follows:
(a) Promptly (i) transfer to LicenseCo any FCC License held by
the Borrower or any Restricted Subsidiary and take any other
actions as shall be required to cause the Collateral Agent to
have a perfected first priority security interest therein (to the
extent permissible under applicable law), (ii) create on terms
reasonably acceptable to the Administrative Agent a perfected
first priority security interest in favor of the Collateral Agent
in all Personal Property Assets now owned or hereafter acquired
by the Borrower or any Restricted Subsidiary (including any
Personal Property Assets owned or hereafter acquired by AssetCo)
and any
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Personal Property Assets of any Person that becomes a Restricted
Subsidiary or is merged with or into or consolidated with the
Borrower or any Restricted Subsidiary (in each case other than
any such Personal Property Assets constituting Excluded Assets)
and (iii) without limiting the requirements of Section 5.10(c),
at the option of the Borrower, either (x) transfer to LeasingCo
any Real Property Assets hereafter acquired by the Borrower or
any Restricted Subsidiary and any Real Property Assets of any
Person that becomes a Restricted Subsidiary or is merged with or
into or consolidated with the Borrower or any Restricted
Subsidiary (in each case other than any such Real Property Assets
constituting Excluded Assets) or (y) create on terms reasonably
acceptable to the Administrative Agent a perfected first priority
security interest in favor of the Collateral Agent in such Real
Property Assets, other than Excluded Assets (which security
interest may be subject to any Liens permitted by Section 6.3
(other than those referred to in the definition of the term
"Excluded Assets)) .
(b) Section 5.10(c) is hereby amended so that it shall read in
its entirety as follows:
(c) Promptly create a mortgage on terms reasonably acceptable to
the Administrative Agent in favor of the Collateral Agent on any
fee simple title in real property owned by the Borrower or any
Restricted Subsidiary having at the time of acquisition thereof a
purchase price or fair market value greater than $1,000,000
(other than Excluded Assets), including any such properties that
are acquired by the Borrower or any Restricted Subsidiary after
the date hereof and any such properties of any Person that
becomes a Restricted Subsidiary or is merged with or into or
consolidated with the Borrower or any Restricted Subsidiary.
(b) Section 5.10(d) is hereby amended so that it shall read in
its entirety as follows:
(d) Promptly cause (i) all Capital Stock of any Subsidiary
(including, without limitation, any Subsidiary which shall be
acquired by the Borrower or any Restricted Subsidiary) held by
the Borrower or its Restricted Subsidiaries to be pledged to the
Collateral Agent as Collateral; provided, that only 65% of the
Capital Stock of any Excluded Foreign Subsidiary which is a
Subsidiary of the Borrower or any Domestic Subsidiary, and none
of the Capital Stock of any Subsidiary of an Excluded Foreign
Subsidiary, shall be required to be pledged and (ii) each
Restricted Subsidiary to become a party to the Guarantee and
Collateral Agreement.
10. Amendment to Section 5. Section 5 is hereby amended to
add, after Section 5.11, the following new Sections 5.12 and 5.13 as follows:
5.12 Convertible Notes. Deliver to the Administrative Agent, on
or before April 30, 2001, definitive documentation, duly
authorized, executed and delivered by the Borrower and such
Person or Persons as determined by the Borrower with respect to
the Convertible Notes, on terms and conditions reasonably
satisfactory to the Administrative Agent and in an aggregate
principal amount equal to or in excess of $100,000,000.
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5.13 Vendor Financing. Deliver to the Administrative Agent, on or
before April 30, 2001, definitive documentation, duly authorized,
executed and delivered by the Borrower and one or more Vendors,
including a New Lender Supplement duly executed and delivered by
the Borrower and each relevant Vendor, with respect to the
establishment of one or more Optional Vendor Loan Tranches
pursuant to Section 2.7 of, and in all material respects in
accordance with, this Agreement in an aggregate principal amount
equal to or in excess of $250,000,000.
11. Amendment to Section 6.1. (a) Section 6.1(a) is hereby
amended so that it shall read in its entirety as follows:
(a) Consolidated Total Debt to Consolidated Adjusted
Capitalization. Permit the ratio of Consolidated Total Debt to
Consolidated Adjusted Capitalization during any test period set
forth below to be greater than the ratio set forth below opposite
such test period:
Test Period Ratio
----------- -----
Closing Date - 12/31/98 60%
1/1/99 - thereafter 65%
(b) Section 6.1(b) is hereby amended so that it shall read in its
entirety as follows:
(b) Consolidated Secured Debt to Consolidated Adjusted
Capitalization. Permit the ratio of Consolidated Secured Debt to
Consolidated Adjusted Capitalization during any test period set
forth below to be greater than the ratio set forth below opposite
such test period:
Test Period Ratio
----------- -----
Closing Date - 12/31/98 30%
1/1/99 - thereafter 40%
(c) Section 6.1(c) is hereby amended so that it shall read in its
entirety as follows:
(c) Minimum Consolidated Total Revenue. Permit Consolidated Total
Revenue for any fiscal quarter set forth below to be less than
the amount set forth opposite such fiscal quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
3/31/01 [REDACTED]*
6/30/01 [REDACTED]*
(d) Section 6.1(f) is hereby amended to delete the last sentence
thereof, which read, "In addition to the amounts set forth above, Capital
Expenditures may be funded from the Unused Proceeds Basket".
(e) Section 6.1(j) is hereby amended so that it shall read in its
entirety as follows:
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(j) Consolidated Fixed Charge Coverage Ratio. (a)(i) From the
fiscal quarter ending June 30, 2001 through the fiscal quarter
ending September 30, 2003, permit the Consolidated Fixed Charge
Coverage Ratio on the last day of any fiscal quarter ending on
any date set forth below to be less than the ratio set forth
opposite such date below:
Fiscal Quarter Ending Ratio
--------------------- -----
6/30/01 2.00
9/30/01 1.75
12/31/01 2.50
3/31/02 through 9/30/03 1.25; and
(ii) From the fiscal quarter ending December 31, 2003 and
thereafter, permit the Consolidated Fixed Charge Coverage Ratio
for any period of four consecutive fiscal quarters ending during
any test period set forth below to be less than the ratio set
forth opposite such test period below:
12/31/03 through 9/30/04 1.10
12/31/04 and thereafter 1.25; or
(b) From the fiscal quarter ending June 30, 2001 through the
fiscal quarter ending September 30, 2003, fail to deliver to the
Administrative Agent and the Lenders, on or before the date which
is ten Business Days after the end of any fiscal quarter, a
certificate of a Responsible Officer showing calculations
demonstrating compliance with the foregoing clause (i) on the
last day of such fiscal quarter.
(f) Section 6.1 is hereby amended to add the following new
Section 6.1(k) below:
(k) Minimum Consolidated EBITDA. Permit Consolidated EBITDA for
the period ending on the last day of the fiscal quarter set forth
below to be less than the amount set forth opposite such fiscal
quarter below:
Fiscal Quarter Ending Amount
--------------------- ------
3/31/01 [REDACTED]*
6/30/01 [REDACTED]*
9/30/01 [REDACTED]*
12/31/01 [REDACTED]*
3/31/02 [REDACTED]*
6/30/02 [REDACTED]*
9/30/02 [REDACTED]*
12/31/02 [REDACTED]*
3/31/03 [REDACTED]*
6/30/03 [REDACTED]*
9/30/03 [REDACTED]*
12/31/03 [REDACTED]*
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3/31/04 [REDACTED]*
6/30/04 [REDACTED]*
9/30/04 [REDACTED]*
12/31/04 [REDACTED]*
(g) Section 6.1 is hereby amended to add the following new
Section 6.1(l) below:
(l) Minimum Liquidity. Permit the aggregate amount of cash and
Cash Equivalents held in (i) the Operating Accounts of the
Borrower and (ii) the Collateral and Securities Account of the
Borrower held at The Chase Manhattan Bank, in each case pursuant
to Section 6.13 of this Agreement, to be less than $150,000,000
on March 31, 2001.
12. Waiver of Section 6.1(j). The parties hereto hereby agree
that the requirement of Section 6.1(j) that the Consolidated Fixed Charge
Coverage Ratio on the last day of the fiscal quarter ending December 31, 2000 be
equal to or more than 1.10 shall be waived.
13. Amendment to Section 6.2. (a) Section 6.2(c) is hereby
amended so that it shall read in its entirety as follows:
(c) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 6.3(g);
provided, that (i) not more than $25,000,000 of such Indebtedness
may be incurred to finance the acquisition of Network Assets
(other than fiber or fiber capacity) and (ii) that not more than
$[REDACTED]* of such Indebtedness may be incurred to finance the
acquisition of fiber or fiber capacity;
(b) Section 6.2 is hereby further amended by (i) deleting the
word "and" at the end of clause (j), (ii) deleting the period at the end of
clause (k) and inserting a semi-colon and the word "and" in lieu thereof and
(iii) adding the following new clause (l):
(l) Indebtedness incurred under the Convertible Notes in an
aggregate principal amount not to exceed [REDACTED]*.
14. Consent to Section 6.2(g). The parties hereto hereby
agree that the requirement of Section 6.2(g)(x) that unsecured Indebtedness or
preferred stock of the Borrower issued or incurred after July 2, 1998 generating
the first $500,000,000 in Net Cash Proceeds shall provide for interest or
dividends thereon to be paid in kind (or to be paid out of amounts deposited in
escrow or pledged as collateral from the proceeds thereof) for at least three
years after the date of incurrence or issuance thereof shall be deemed
satisfied.
15. Amendment to Section 6.3. (a) Section 6.3(g) is hereby
amended to read in its entirety as follows:
(g) Liens securing Indebtedness of the Borrower or any Restricted
Subsidiary incurred pursuant to Section 6.2(c) to finance the
acquisition or capital lease of fixed or capital assets, provided
that (i) such Liens shall be created within 90 days from the
acquisition of such fixed or capital assets and (ii) such Liens
do not at any time encumber any Property other than the Property
financed by such Indebtedness;
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(b) Section 6.3 is hereby further amended by (i) deleting the
word "and" at the end of clause (k), (ii) deleting the period at the end of
clause (l) and inserting a semi-colon in lieu thereof and (iii) adding the
following new clauses (m), (n) and (o):
(m) Uniform Commercial Code filings with respect to operating
leases or consignment arrangements entered into in the ordinary
course of business of the Borrower or any of its Restricted
Subsidiaries, to the extent filed to reflect the interests of the
lessor or relevant party in respect of such leases or consignment
arrangements, as the case may be;
(n) Liens in favor of banking institutions arising by operation
of law encumbering deposits held by such banking institution
incurred by the Borrower or its Restricted Subsidiaries in the
ordinary course of business; and
(o) second priority Liens on the Collateral securing the
obligations under the Convertible Notes permitted pursuant to
Section 6.2(l), provided, that (i) such Liens shall be subject to
customary second lien and Indebtedness subordination provisions
satisfactory to the Administrative Agent providing, among other
things, that such Liens shall be subject to the priority of Liens
securing the Obligations (including with respect to the exercise
of remedies and decisions relating to the Collateral) and that
the obligations under the Convertible Notes shall be subordinated
to the Obligations and (ii) the documentation with respect to
such Liens shall include an intercreditor agreement and such
other documentation reasonably requested by the Administrative
Agent, satisfactory in form and substance to the Administrative
Agent.
16. Amendment to Section 6.5. (a) Sections 6.5(c) is hereby
amended so as to read in its entirety as follows:
(c) so long as after giving effect thereto the Borrower is in Pro
Forma Compliance, any Asset Sale for fair market value; provided,
that (i) the aggregate consideration in connection with all Asset
Sales shall not exceed [REDACTED]* and (ii) the Net Cash Proceeds
of all Asset Sales shall be applied in accordance with Section
2.13;
(b) The proviso at the end of Sections 6.5 is hereby amended so
as to read in its entirety as follows:
provided that in each case described in clauses (c) and (e)
above, at least 75% of the consideration received by the
Borrower or its Restricted Subsidiaries for such Disposition
shall consist of cash and Cash Equivalents.
17. Amendment to Section 6.7. (a) Sections 6.7(d), (e) and (f)
are hereby amended so as to read in their entirety as follows:
(d) Investments by the Borrower and its Restricted Subsidiaries
(other than the Special Purpose Subsidiaries) in Unrestricted
Subsidiaries and joint ventures, provided, that (x) the
consideration for such Investments made after the Effective Date
in excess of [REDACTED]* in the aggregate shall be the common
stock of the Borrower, (y) the consideration for such Investments
made after the Effective
14
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Date may not include, directly or indirectly, the Disposition of
any Network Assets of the Borrower or any Restricted Subsidiary
(including, without limitation, licenses, whether domestic or
foreign, but excluding, the entering into of one or more
management agreements with respect to spectrum by any Restricted
Subsidiary to any Unrestricted Subsidiary or other Person;
provided, that such agreements are (A) compliant with all
material terms of this Agreement as determined by the
Administrative Agent in good faith (including, without
limitation, that all Net Cash Proceeds of such management
agreement shall be applied in accordance with Section 2.13) and
(B) reasonably satisfactory in form and substance to FCC counsel
to the Lenders), and (z) after giving effect to such Investment
the Borrower shall be in Pro Forma Compliance;
(e) Investments in wireless telecommunications licenses issued by
a governmental authority, including FCC Licenses, and in Persons
engaged in the telecommunications business and substantially all
of whose assets consist of wireless telecommunications licenses
which become Restricted Subsidiaries as a result of such
Investment, provided, that (w) the consideration for such
Investments shall be the common stock of the Borrower, (x) with
respect to Investments in Persons pursuant to this clause (e),
such Investments shall be made only in Persons which have
provided to the Administrative Agent financial statements
certified by the chief financial officer of such Person
reflecting a positive EBITDA for such Person for the immediately
preceding consecutive twelve-month period, (y) after giving
effect to such Investment the Borrower shall be in Pro Forma
Compliance and (z) the consideration for Investments made in
telecommunications licenses issued by any Governmental Authority
outside the United States shall be the common stock of the
Borrower;
(f) Investments in additional Telecommunications Assets,
excluding wireless telecommunications licenses, and in Persons
engaged in the telecommunications business which become
Restricted Subsidiaries as a result of such Investment, provided,
that (x) the consideration for such Investments shall be the
common stock of the Borrower, (y) with respect to Investments in
Persons pursuant to this clause (f), such Investments shall be
made only in Persons which have provided to the Administrative
Agent financial statements certified by the chief financial
officer of such Person reflecting a positive EBITDA for such
Person for the immediately preceding consecutive twelve-month
period, and (z) after giving effect to each such Investment the
Borrower shall be in Pro Forma Compliance;
18. Amendment to Section 6.12(b). Sections 6.12(b) is hereby
amended so as to read in its entirety as follows:
(b) Permit LicenseCo to incur any material liabilities (other
than pursuant to the Loan Documents) or to engage in any business
or activities other than (i) the holding of Licenses, (ii) the
entering into of one or more management agreements with respect
to spectrum with any Unrestricted Subsidiary or other Person
(provided, that such agreements are (A) compliant with all
material terms of this Agreement as determined by the
Administrative Agent in good faith (including, without
limitation, that all Net Cash Proceeds of such management
agreement shall be applied in accordance with Section 2.13) and
(B) reasonably satisfactory
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in form and substance to FCC counsel to the Lenders) and (iii) in
each case, to engage in activities directly incident or directly
related thereto.
19. Addition of Section 6.13. The following shall be added as
Section 6.13:
6.13. Maintenance of Cash and Cash Equivalents. From and after
the Amendment Effective Date, hold, directly or indirectly, any
cash or Cash Equivalents, except as follows:
(a) the Borrower and its Restricted Subsidiaries may hold
cash in operating accounts maintained with any bank or other
financial institution reasonably satisfactory to the
Administrative Agent (the "Operating Accounts") so long as, at
the close of business on any day (after giving effect to any
transfers at such close of business to the Collateral and
Securities Account), the amount on deposit in all Operating
Accounts shall not exceed, in the aggregate, [REDACTED]*; and
(b) the Borrower and its Restricted Subsidiaries shall
maintain all cash and Cash Equivalents, other than cash on
deposit in an Operating Account to the extent permitted by the
foregoing paragraph (a), in an account or accounts (collectively,
the "Collateral and Securities Account") at The Chase Manhattan
Bank, which shall be established and maintained upon the
following terms:
(i) the Collateral and Securities Account shall be
established pursuant to agreements in form and substance
reasonably satisfactory to the Administrative Agent, which
shall in any event provide that (1) the Collateral and
Securities Account, and all cash and Cash Equivalents from
time to time credited thereto, and all earnings thereon,
shall constitute Collateral in which the Collateral Agent
has a security interest to secure the Secured Obligations
(as defined in the Collateral Agency and Intercreditor
Agreement) and (2) the Collateral Agent shall have sole
dominion and control of the Collateral and Securities
Account, and neither the Borrower nor any Restricted
Subsidiary shall have any right of withdrawal therefrom,
except as provided in clause (ii) below;
(ii) upon receipt by the Collateral Agent of a
request from the Borrower (1) stating that the aggregate
amount on deposit in all Operating Accounts as of the
close of business on the immediately preceding Business
Day was not more than [REDACTED]* and (2) requesting that
the Collateral Agent transfer from the Collateral and
Securities Account to an Operating Account funds in an
amount which, after giving effect to such transfer, will
not cause the provisions of this Section 6.13 to be
violated, the Collateral Agent will transfer such
requested amount in accordance with such request.
20. Amendment to Section 7(c). Section 7(c) is hereby amended
to read in its entirety as follows:
(c) The Borrower shall default in the observance or performance
of any agreement contained in Section 5.12 or Section 5.13 or any
Loan Party shall
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default in the observance or performance of any agreement
contained in Section 6;
21. Amendment to Section 9.5. Section 9.5 of the Credit
Agreement is hereby amended by deleting clause (a) in its entirety and
substituting the following in lieu thereof:
(a) to pay or reimburse the Agents, and the formal and informal
members of any steering committee of Lenders, for all their
reasonable out-of-pocket costs and expenses incurred in
connection with the development, preparation and execution of,
and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in
connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and
disbursements of one counsel for all of the Agents and any other
consultants or professional advisors (including, without
limitation, financial advisors) retained by the Administrative
Agent,
22. Amendment to Annex A. Annex A to the Credit Agreement is
hereby deleted in its entirety.
23. Amendment to Exhibits. Exhibit J attached hereto as Annex
A shall hereby be added as Exhibit J to the Credit Agreement.
24. Amendment to Section 3.2 of the Guarantee and Collateral
Agreement. Section 3.2 is hereby amended to read in its entirety as follows:
3.2 Limitation on Obligation to Perfect. Notwithstanding the
foregoing, it is understood and agreed that no Grantor will be
required to take any action to perfect any security interest
created hereby other than (A) the filing of financing statements
under the Uniform Commercial Code in the states (and, where
applicable, counties, towns and parishes) necessary or, in the
reasonable judgment of the Administrative Agent, desirable to
create a perfected first priority security interest in the
Personal Property Assets of such Grantor, (B) the filings
required in the United States Patent and Trademark Office to
perfect the security interest created hereby in any material
United States Patents or U.S. Trademarks owned or held by such
Grantor, (C) the filings and registrations required in the United
States Copyright Office to perfect the security interest created
hereby in any material United States Copyrights owned or held by
such Grantor, (D) delivery to the Collateral Agent of any
Possessory Collateral owned by such Grantor and (E) any actions
required to perfect the security interest created hereby in any
Non-Excluded Personal Property which, in the case of any Real
Property Assets, has not been transferred to a LeasingCo;
provided, that if after the date hereof there is any change in
law which requires actions in addition to those described above
to cause the security interests created hereby to be perfected to
the same extent as the perfection effected by the foregoing
actions under laws in effect on the date hereof, the Grantors
will take such additional actions.
25. Amendment to Section 5.3(a) of the Guarantee and
Collateral Agreement. Section 5.3(a) is hereby amended by deleting the reference
to "Section 4.5" and substituting in lieu thereof a reference to "Section 4.3".
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26. Amendment to Section 5.6(b)(ii) of the Guarantee and
Collateral Agreement. Section 5.6(b)(ii) is hereby amended by inserting the
following phrase immediately after the word "instruments" and immediately before
the symbol ")":
, and any such Pledged Securities so sold, assigned, transferred,
exchanged or otherwise disposed of as permitted by the Secured
Instruments shall cease to be Pledged Securities hereunder
27. Conditions Precedent. Subject to the satisfaction of the
following conditions, this Amendment will become effective as of March 30, 2001
(the "Effective Date"):
(a) Amendment. The Administrative Agent shall have received
counterparts of this Amendment, duly executed by the Borrower, the
Administrative Agent and the Required Lenders.
(b) No Default or Event of Default. On and as of the Effective
Date after giving effect to this Amendment, no Default or Event of
Default shall have occurred and be continuing.
(c) Representations and Warranties. The representations and
warranties made by the Borrower in the Credit Agreement and the other
Loan Documents after giving effect to this Amendment and the
transactions contemplated hereby shall be true and correct in all
material respects on and as of the Effective Date as if made on such
date, except that where such representations and warranties relate to an
earlier date, such representations and warranties shall have been true
and correct in all material respects as of such earlier date, provided
that all references to the Credit Agreement in such representations and
warranties shall be and are deemed to mean this Amendment as well as the
Credit Agreement as amended hereby.
(d) Certificate. The Administrative Agent shall have received a
Certificate of a Responsible Officer of the Borrower certifying the
matters referred to in paragraphs (b) and (c).
(e) Secretary's Certificate. The Administrative Agent shall have
received a certificate from the Secretary or Assistant Secretary of the
Borrower dated as of the Effective Date, (i) certifying attached copies
of resolutions of the Board of Directors of the Borrower, authorizing
the execution, delivery and performance of this Amendment, including the
increase in the amount of the Optional Term Loan Commitments,
contemplated hereby, (ii) certifying that the By-Laws and the
Certificate of Incorporation of the Borrower have not been amended,
restated, supplemented or otherwise modified since July 2, 1998, except
for the amendments, restatements, supplements or modifications attached
as an exhibit to such certificate, and (iii) evidencing the incumbency
and signatures of the officers signing this Amendment.
(f) Opinions. The Administrative Agent shall have received in
connection with this Amendment (i) an opinion of in-house counsel to the
Borrower, covering such matters that the Administrative Agent shall
reasonably request and customary for transactions of this type, and (ii)
an enforceability opinion of Cravath, Swaine & Xxxxx, special New York
counsel to the Borrower, which opinion shall also cover the creation and
perfection of the security interest of the Collateral Agent in the
Collateral and
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Securities Account and the enforceability of the agreements entered
into in connection therewith.
(g) Approvals. The Administrative Agent shall have received
copies of all necessary corporate and governmental approvals (if any) of
the Borrower for the increase of the aggregate amount of the Optional
Term Loan Tranches, the addition of the Optional Vendor Loan Tranches
therein, and any other transactions contemplated hereby.
(h) Fees and Expenses. The Administrative Agent shall have
received all fees required to be paid, including, without limitation, an
amendment fee for the account of each Lender which executes and delivers
this Amendment on or before the date hereof of 25 basis points on such
Lender's Commitment, and all expenses for which invoices have been
presented, including, without limitation, all expenses required to be
paid pursuant to Section 9.5 (after giving effect to this Amendment), on
or before the date hereof.
(i) Subsidiary and Collateral Schedule. The Administrative Agent
shall have received in connection with this Amendment a schedule or
schedules listing (i) each direct and indirect Subsidiary of the
Borrower, (ii) the Borrower's and each such Subsidiary's jurisdiction of
incorporation, (iii) the location of the chief executive office of the
Borrower and each Domestic Subsidiary, (iv) the locations of any
tangible personal property of the Borrower and each Domestic Subsidiary,
(v) the identity of the owner of the Capital Stock of each direct and
indirect Subsidiary of the Borrower (and specifying whether such Capital
Stock is certificated or uncertificated and, with respect to each
Domestic Subsidiary and each Excluded Foreign Subsidiary which is a
Subsidiary of the Borrower or any Domestic Subsidiary, if certificated,
the share certificate number and the number of shares issued and
outstanding) and (vi) each filing office in which UCC financing
statements should be filed to perfect the security interest of the
Collateral Agent in all personal property of the Borrower and each
Restricted Subsidiary. Such schedules shall be accompanied by a
certificate of the Borrower certifying such schedules to be true and
correct.
28. Continuing Effect; No Other Amendments. Except as
expressly amended or waived hereby, all of the terms and provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect. The amendments and consent contained herein shall not constitute an
amendment or consent of any other provision of the Credit Agreement or the other
Loan Documents or for any purpose except as expressly set forth herein.
29. Binding Effect. This Amendment shall apply equally to
each of the Lenders parties to the Credit Agreement, and shall be binding upon
the Borrower, the Lenders, the Administrative Agent, the Arrangers, the
Documentation Agent, the Syndication Agent and all future holders of the Notes.
30. Governing Law. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
31. Counterparts. This Amendment may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall
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20
constitute one and the same instrument. Delivery of an executed counterpart of a
signature page of this Amendment by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Amendment.
32. Headings. Section headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
[Remainder of this page left blank intentionally; Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their duly authorized representatives as of the date first
above written.
TELIGENT, INC.
By:
-----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
As Administrative Agent
By:
-----------------------------
Name:
Title:
[INSERT NAME OF LENDER],
As a Lender
By:
-----------------------------
Name:
Title:
22
ANNEX A
EXHIBIT J
FORM OF NEW LENDER SUPPLEMENT
SUPPLEMENT, dated _________________, to the Credit Agreement
dated as of July 2, 1998 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Teligent, Inc., a
Delaware corporation (the "Borrower"), the Lenders from time to time parties
thereto, Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent, Toronto
Dominion (Texas), Inc., as Documentation Agent, and The Chase Manhattan Bank, as
Administrative Agent. Capitalized terms used herein without definition shall
have the meaning ascribed to such terms in the Credit Agreement.
W I T N E S S E T H :
WHEREAS, the Credit Agreement provides in Section 2.7 thereof
that, in the case of any Optional Non-Vendor Loan Tranche, any banks, financial
institutions or other entities, and, in the case of any Optional Vendor Loan
Tranche, any Vendor, to the Borrower may become a party to the Credit Agreement
as an Optional Term Loan Lender with the consent of the Borrower and the
Administrative Agent (which consent, in the case of the Administrative Agent,
shall not be unreasonably withheld) by executing and delivering to the Borrower
and the Administrative Agent a supplement to the Credit Agreement in
substantially the form of this Supplement; and
WHEREAS, the undersigned now desires to become a party to the
Credit Agreement;
NOW, THEREFORE, the undersigned hereby agrees as follows:
1. The undersigned agrees to be bound by the provisions of the
Credit Agreement, and agrees that it shall, on the date this Supplement
is accepted by the Borrower and the Administrative Agent, become an
Optional [Non-]Vendor Loan Lender for all purposes of the Credit
Agreement to the same extent as if originally a party thereto, with an
Optional [Non-]Vendor Loan Commitment of [$____________].
2. The undersigned (a) represents and warrants that it is legally
authorized to enter into this Supplement; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 5.1 thereof and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Supplement; (c) agrees
that it has made and will, independently and without reliance upon any
Agents or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement or any
23
instrument or document furnished pursuant hereto or thereto; (d)
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under
the Credit Agreement or any instrument or document furnished pursuant
hereto or thereto as are delegated to the Administrative Agent by the
terms thereof, together with such powers as are incidental thereto;
and (e) agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, without limitation, if it is
organized under the laws of a jurisdiction outside the United States,
its obligation pursuant to Section 2.21 of the Credit Agreement.
3. The undersigned's address for notices for the purposes of the
Credit Agreement is as follows:
[Remainder of the page left blank intentionally; Signature page to follow.]
24
IN WITNESS WHEREOF, the undersigned has caused this Supplement to
be executed and delivered by a duly authorized officer on the date first above
written.
[INSERT NAME OF LENDER]
By:
-----------------------------
Name:
Title:
Accepted this _____ day of
--------------, ----.
TELIGENT, INC.
By:
-----------------------------
Name:
Title:
Accepted this ____ day of
--------------, ----.
THE CHASE MANHATTAN BANK, as Administrative Agent
By:
-----------------------------
Name:
Title:
25
Exhibit A to the
Amendment and Consent,
dated as of March 30, 2001
CONVERTIBLE NOTES
TERM SHEET
ISSUER: Teligent, Inc. (the "Company").
INVESTORS: Such Persons as determined by the Company.
ISSUE: Convertible Notes, in one or more series (all series taken
together the "Notes").
AMOUNT: Not to be less than $100 million nor to exceed $150 million.
TERM: [REDACTED]* from date of first draw down of the respective
Series.
INTEREST RATE:
(APPLICABLE TO ALL SERIES)
1. From initial draw down to shareholder approval of the
Exchange Rights and Warrants: Libor plus [REDACTED]*
basis point, [REDACTED], on drawn Notes.
2. Upon shareholder approval of the Exchange Rights and
the Warrants the rate is reset at [REDACTED]*.
3. If the Exchange Rights and the Warrants are not
approved at the shareholder's meeting, then the
Notes become due and payable [REDACTED]* after such
shareholders meeting. The Company will hold the
shareholders meeting as soon as practicable, but in
no case later than [REDACTED]*.
AVAILABILITY: Each series shall be available for draw down to the Company
in tranches at any time after closing. All draws must be
made within [REDACTED]* after the execution of the definitive
agreements for the Notes.
CONDITIONS
PRECEDENT: The availability of one series, which shall be in an amount
equal to or in excess of [REDACTED]* ("Series A"), is
contingent only on [REDACTED]*.
One series, which shall be in an amount equal to or in
excess of [REDACTED]* ("Series B"), shall close after the
end of [REDACTED]*, subject only to the [REDACTED]*.
26
RANKING: The Notes shall be subordinate, in right of payment, to
the Obligations, and any security interest securing the
Notes shall be subordinate to the security interest of the
Collateral Agent, in each case pursuant to subordination
and intercreditor provisions reasonably acceptable to the
Administrative Agent.
PURPOSE: The Company may draw down on the Notes from time to time
only to finance the acquisition and development of
telecommunications assets.
EXCHANGE RIGHTS: Subject to shareholders approval, the Note holders may
exchange the Notes for the Company's common stock
[REDACTED]*.
OPERATING
MILESTONES: There shall be no financial covenant requirements (i)
other than those set forth in Section 6.1 clauses (c) and
(k) of the Credit Agreement (as amended by the Amendment)
and (ii) for any period except Q1 and Q2 2001.
