PAYING AGENCY AGREEMENT
PAYING AGENCY AGREEMENT, dated as of September 4, 1998 (this
"AGREEMENT"), among WIRELESS ONE, INC., a Delaware corporation (the
"COMPANY"), and XXXXXXX XXXXX GLOBAL ALLOCATION FUND, INC. or one or more of
its affiliates (the "PURCHASER") and PRICEWATERHOUSECOOPERS LLP, as paying
agent (the "PAYING AGENT") and as collateral agent (the "COLLATERAL AGENT" and
in both capacities, the "AGENT").
W I T N E S S E T H
RECITALS:
WHEREAS, the Company has entered into a Discretionary Note
Purchase Agreement with the Purchaser (such agreement, as amended,
restated, supplemented or otherwise modified from time to time, the "NOTE
PURCHASE AGREEMENT"; the terms defined therein and not otherwise defined
herein being used herein as therein defined) pursuant to which the Company
may issue and sell to the Purchaser Notes, the aggregate principal amount
of which shall not exceed $20,000,000 (the "NOTES");
WHEREAS, in order to ensure that the proceeds of the Note
Purchase Agreement are utilized strictly in accordance with the Business
Plan, the Company and the Purchaser have requested that the Paying Agent
act as paying agent with respect to the disbursement of such proceeds;
WHEREAS, in order to preserve the Company's business for the
benefit of all parties, the Paying Agent, as financial advisor to and on
behalf of the Purchaser, is willing to act as the Paying Agent and the
Collateral Agent under the Note Documents upon the terms and subject to the
conditions set forth in this Agreement;
WHEREAS, the Company has previously established and currently
maintains the Securities Account with Deposit Guaranty, a division of First
American National Bank;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
1 The Company and the Purchaser hereby appoint the Paying Agent to
act as paying agent in connection with the disbursement of the
cash proceeds to the Company made pursuant to the Note Purchase
Agreement.
2 At each Closing, the Purchaser will transfer proceeds of the
Notes into the Securities Account (the "PROCEEDS") in accordance
with the terms and conditions of the Note Documents. The
Purchaser shall be solely responsible for ensuring, and the
Paying Agent shall have no responsibility to verify, that all
amounts transferred into the Securities Account are transferred
in accordance with the terms and conditions of the Note
Documents. All transfers out of the Securities Account after the
Closing (other than transfers made pursuant to Section 9.5(b)(iv)
of the Note Purchase Agreement) shall be made in accordance with
the Business Plan and shall require the approval and written
authorization of both the Paying Agent and the Company.
3 The Company will, from time to time, from and including the
Initial Closing Date to and including the Business Day
immediately preceding the Maturity Date (the "DISBURSEMENT
PERIOD"), submit to the Paying Agent (with copies to the
Purchaser) written disbursement requests (each a "DISBURSEMENT
REQUEST") with respect to the disbursement of the Proceeds,
together with proposed wire transfer instructions for transfers
from the Securities Account. Each such Disbursement Request
shall specify in reasonable detail the amount and date of the
requested disbursements, and contain a certification from an
officer of the Company that the Company shall use such Proceeds
in accordance with the Business Plan and, with respect to each
such Disbursement Request after the Initial Closing Date, has
used all Proceeds disbursed from the Securities Account since the
date of the previous Disbursement Request in accordance with the
Business Plan. The Company shall provide in writing such further
details with respect to each Disbursement Request, and any
information with respect to the Company's compliance with the
Business Plan as certified in the most recently delivered
Disbursement Request as the Paying Agent may reasonably request.
4 The Paying Agent is hereby authorized and directed upon receipt
during the Disbursement Period of a Disbursement Request, in form
and substance satisfactory to the Paying Agent, to approve and
authorize for release the transfers proposed to be made by the
Company from the Securities Account; provided, however, that,
except as otherwise consented to in writing by the Purchaser, the
Paying Agent shall not, during any month during the Disbursement
Period or for the entire Disbursement Period, approve and
authorize for release pursuant to Disbursement Requests any
amount that would exceed the Business Plan for such month or such
period (which shall not include any Proceeds that were previously
approved and authorized for release by the Paying Agent pursuant
to any previous Disbursement Request and which were not utilized
and have been redeposited into the Securities Account), as the
case may be; provided, that in no event shall the Paying Agent
approve and authorize for release pursuant to Disbursement
Requests an aggregate amount in excess of the sum of the
Proceeds, cash on hand at the Initial Closing Date, and cash
receipts of the Company during the Disbursement Period.
5 The Company and the Purchaser hereby appoint the Agent to act as
collateral agent in connection with the Security Agreement and
the other Collateral Documents.
6 The Agent may resign as Paying Agent and Collateral Agent at any
time by giving 10 Business Days' written notice thereof to each
of the other parties hereto. Upon any such resignation, the
Purchaser and the Company shall appoint a replacement paying
agent. In the event the Purchaser and the Company have not
agreed to a replacement agent prior to the effectiveness of the
Paying Agent's resignation then the Purchaser shall name a
replacement paying agent.
7 The Company, and to the extent not reimbursed by the Company, the
Purchaser shall indemnify the Agent and hold it harmless from and
against any loss, liability, costs, claims, damage, expense,
action or demand which the Agent may incur or which may be made
against it as a result of or in connection with its appointment
or the exercise of its powers or the administration or its duties
as the Paying Agent or Collateral Agent, as well as the
reasonable costs and expenses (including attorneys' fees) which
it may incur defending against any claim or liability except such
as may result from its own bad faith, gross negligence or willful
misconduct; provided that the Agent shall promptly notify the
Company and the Purchaser in writing of any such loss, liability,
cost, claim, damage, expense, action or demand, in respect of
which indemnity may be sought against the Company, or the
Purchaser; provided, further that prior to settling any such
loss, liability, cost, claim, damage, expense, action or demand,
in respect of which indemnity may be sought against the Company
or the Purchaser, the Agent shall promptly notify the Company and
the Purchaser in writing of the terms and conditions of any
proposed settlement, and the Company or, if the Purchaser is
reimbursing, the Purchaser may at its option assume the defense
thereof, including the employment of counsel and the payment of
all expenses in connection therewith, and the Company and, if the
Purchaser is reimbursing, the Purchaser shall thereafter have the
right to negotiate and consent to the settlement thereof
provided, in the event of any disagreement between the Company
and, if the Purchaser is reimbursing, the Purchaser as to such
defense or settlement, the Purchaser's decision shall be binding
on the Company. The Agent shall have the right to employ
separate counsel and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of
the Agent unless the employment of such counsel has been
specifically authorized by the Purchaser. Neither the Company
nor the Purchaser shall be liable for any settlement effected
without their consent, but if settled with the consent of the
Company and the Purchaser or if there be a final judgment for the
plaintiff in any action with or without consent, the Company and
the Purchaser agrees to indemnify and hold harmless the Agent
from and against any loss or liability by reason of such
settlement or judgment. Subject to the foregoing, the Agent and
its partners, principals, employees and agents shall incur no
liability and shall be indemnified and held harmless by the
Company and, to the extent not reimbursed by the Company, the
Purchaser for any action taken, omitted or suffered to be taken
in good faith, without bad faith, gross negligence or willful
misconduct, in reliance upon (a) any written opinion of counsel,
(b) any written or cabled or telexed instructions from the
Company or the Purchaser, or (c) any written direction, consent,
certificate, officers' certificate, affidavit, statement, notice,
request, order or approval, or other document conforming to the
requirements of the Note Purchase Agreement or this Agreement and
reasonably believed by the Agent receiving the same to be genuine
and to be delivered, sent or signed by the proper party or
parties. The Agent shall have no responsibility for any act, or
omission to act, of the Company or Purchaser.
8 All notices and communications provided for hereunder shall be in
writing and delivered (a) by telecopy if the sender on the same
day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), (b) by registered
or certified mail with return receipt requested (postage
prepaid), (c) by a recognized delivery service (with charges
prepaid). Any such notice must be sent: if to any party
hereunder, addressed to it at its address specified in the Note
Purchase Agreement or, as to any party, at such other address as
shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this
paragraph. All notices and communications provided for under
this paragraph will be deemed given and effective only when
actually received.
9 Beyond the duties set forth in this Agreement, the Note Purchase
Agreement, the Security Agreement and the other Collateral
Documents, the Agent shall not have any duty to the Purchaser or
any other Secured Party as to any Collateral in the Agent's
possession or control or in the possession or control of any
agent or nominee of it or any income thereon or as to the
preservation of rights against prior parties or any other rights
pertaining thereto, EXCEPT that the Agent shall be liable for
their failure to exercise ordinary care in the handling of money.
10 The Agent shall, at the request of the Purchaser or any other
Secured Party, release (without recourse and without any
representation or warranty) any or all of the Collateral.
11 This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York applicable
to contracts made and performed in such State, without regard to
the principals thereof regarding conflict of laws, and any
applicable laws of the United States of America.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of the parties hereto has caused this
Paying Agency Agreement to be executed and delivered by its duly authorized
officer(s) on the date first set forth above.
WIRELESS ONE, INC.
By_______________________________________
Name:__________________________________
Title:_________________________________
Wireless One, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
XXXXXXX XXXXX GLOBAL ALLOCATION
FUND INC.
By______________________________________
Name:_________________________________
Title:________________________________
Xxxxxxx Xxxxx Asset Management
Global Allocation Fund
Administrative Offices:
000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Mailing Address:
X.X. Xxx #0000
Xxxxxxxxx, XX 00000-0000
PAYING AGENT: PRICEWATERHOUSECOOPERS LLP
By______________________________________
Name:_________________________________
Title:________________________________
PricewaterhouseCoopers LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
COLLATERAL AGENT: PRICEWATERHOUSECOOPERS LLP
By______________________________________
Name:_________________________________
Title:________________________________
PricewaterhouseCoopers LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
