Exhibit 10.22
CONSENT AND AGREEMENT
(Louisiana Unwired and Texas Unwired)
This Consent and Agreement (this "Consent and Agreement") is entered into
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as of October 26, 1999, between SPRINT SPECTRUM L.P., a Delaware limited
partnership ("Sprint Spectrum"), SPRINTCOM, INC., a Kansas corporation
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("SprintCom"), SPRINT COMMUNICATIONS COMPANY, L.P., a Delaware limited
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partnership ("Sprint Communications"), WIRELESSCO, L.P., a Delaware limited
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partnership ("WirelessCo" and together with Sprint Spectrum, SprintCom and
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Sprint Communications, the "Sprint Parties"), and COBANK, ACB, as administrative
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agent (together with any successors thereof in accordance with the Credit
Agreement hereinafter described, the "Administrative Agent") for the lenders
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under that certain Credit Agreement among US UNWIRED, INC. (the "Parent"), the
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Administrative Agent and the lenders from time to time party thereto (the
"Lenders"). Parent is the approximately 96% owner of Louisiana Unwired, L.L.C.
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("Louisiana Unwired"), which in turn is the approximately 80% owner of Texas
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Unwired, a Louisiana general partnership ("Texas Unwired", and together with
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Louisiana Unwired, the "Affiliates" and, each, an "Affiliate"). This Consent
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and Agreement is intended to replace in its entirety that certain Consent and
Agreement dated June 23, 1999 by and between the Sprint parties and the
Administrative Agent. This Consent and Agreement shall be effective and the June
23, 1999 Consent and Agreement shall be terminated and of no further force or
effect, upon the payment in full of all amounts outstanding under the
indebtedness referenced by the June 23, 1999 Consent and Agreement.
Louisiana Unwired has entered into two Sprint PCS Management Agreements,
one Agreement dated and effective as of June 8, 1998 (the "June 8, 1998
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Management Agreement"), and one dated and effective as of February 8, 1999 (the
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"February 8, 1999 Management Agreement"), and Texas Unwired expects to enter
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into a Sprint PCS Management Agreement (all three such agreements, as they have
been and may be amended, modified, or supplemented from time to time,
individually or together, the "Management Agreement"), with Sprint Spectrum and
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SprintCom providing for the design, construction and management of the Service
Area Networks (as therein respectively defined). Affiliates also have entered
or will enter into a Sprint PCS Services Agreement (as they may be amended,
modified, or supplemented from time to time, the "Services Agreement") and a
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Sprint Trademark and Service Xxxx License Agreement and a Sprint Spectrum
Trademark and Service Xxxx License Agreement (together, as they may be amended,
modified, or supplemented from time to time, the "License Agreements") (the
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Management Agreement, the Services Agreement and the License Agreements and all
other agreements between either Affiliate or its subsidiaries, on the one hand,
and the Sprint Parties or any subsidiary of Sprint Corporation on the other hand
(whether entered into prior to, on, or after the date hereof) that relate to the
Service Area Networks as they may be amended, modified, or supplemented from
time to time, collectively, the "Sprint Agreements").
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Parent has entered into or concurrently herewith is entering into that
certain Credit Agreement dated as of October 1, 1999 with the Administrative
Agent and the Lenders (such
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Credit Agreement, as it may be amended, supplemented, restated, replaced or
otherwise modified from time to time, the "Credit Agreement"), to provide
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financing for a portion of the costs of the design and construction of the
Service Area Networks and for certain other purposes. The Credit Agreement and
each note, security agreement, pledge agreement, guaranty and any and all other
agreements, documents or instruments entered into in connection with any of the
foregoing, as the same may from time to time be amended, supplemented, restated,
replaced or otherwise modified from time to time, shall collectively be referred
to as the "Loan Documents." All capitalized terms in this Consent and Agreement
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shall have the same meanings ascribed to them in the Management Agreement unless
otherwise provided in this Consent and Agreement; provided, that the terms
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"Default", "Event of Default" and "Obligations" shall have the meanings ascribed
to them in the Credit Agreement.
The Obligations under the Loan Documents are or will be fully or partially
guaranteed, directly or indirectly, by the Affiliates and other subsidiaries of
Parent (collectively, the "Subsidiaries") and by Lucent Technologies Inc.
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("Lucent") pursuant to those certain Guaranties executed by the Subsidiaries in
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favor of the Administrative Agent and the Lenders (the "Subsidiaries
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Guaranties") and that certain Guaranty executed by Lucent in favor of the
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Administrative Agent and the Lenders (the "Lucent Guaranty"), respectively.
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Lucent and the Subsidiaries are collectively referred to as the "Guarantors."
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That certain Indemnity and Reimbursement Agreement (the "Lucent Reimbursement
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Agreement") between Lucent, Parent and the Subsidiaries sets forth some of
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Lucent's rights upon Lucent's payment to the Administrative Agent of amounts
pursuant to the Lucent Guaranty. The Subsidiaries Guaranties and the Lucent
Guaranty are collectively referred to as the "Guaranties" and Guaranties and the
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Lucent Reimbursement Agreement are collectively referred to as the "Guaranty
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Documents."
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As a condition to the availability of credit to Parent under the Credit
Agreement, the Administrative Agent and the Lenders have required the execution
and delivery of this Consent and Agreement by the Sprint Parties and have
required that Parent, Subsidiaries and Other Investors (as defined below)
acknowledge, consent and agree to all terms and provisions of this Consent and
Agreement. The term "Other Investors" means the members and partners of
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Subsidiaries, other than Parent, including but not limited to Cameron
Communications Corporation, Louisiana Unwired, Fort Bend Communications
Corporation and XIT Leasing, Inc..
Sprint Spectrum and SprintCom hold, directly or indirectly, certain of the
licenses for the service areas managed by Affiliate as contemplated in the
Management Agreement. As used in this Consent and Agreement, the term "Sprint
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PCS" shall refer in each particular instance or application to Sprint Spectrum
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and/or SprintCom, based on which of the two entities owns the License in that
portion of the Service Area to which the subject of the instance or application
applies.
Accordingly, each Sprint Party and the Administrative Agent, on behalf of
itself and for the Lenders, hereby agrees as follows:
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SECTION 1. Consent to Security Interest. In connection with the
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transactions contemplated by the Credit Agreement and the other Loan Documents,
each Affiliate has granted or will grant to the Administrative Agent, for the
benefit of the Lenders, a first priority security interest in and lien upon
substantially all of its assets and property, tangible and intangible, whether
now owned or hereafter acquired or arising, and all proceeds and products
thereof and accessions thereto, including without limitation the rights of such
Affiliate in, to and under the Sprint Agreements to which it is a party, and the
members or partners of such Affiliate have granted or will grant to the
Administrative Agent, for the benefit of the Lenders, a first priority security
interest in and pledge of all membership interests, partnership interests or
other equity interests in such Affiliate (the "Pledged Equity"). The foregoing
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security interests, liens and pledges are referred to collectively as the
"Security Interests" and the foregoing assets and property in which the
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Administrative Agent, for the benefit of the Lenders, has been or will be
granted a first priority security interest in and lien are referred to
collectively as the "Collateral". Each Sprint Party (i) acknowledges notice of
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the Credit Agreement, (ii) consents to the making of the Guaranties and the
granting of the Security Interests in the Collateral to the Administrative
Agent, for the benefit of the Lenders, and (iii) agrees that (a) neither it nor
any subsidiary of Sprint Corporation will challenge or contest that any of the
Guaranties are not valid and enforceable and that the Security Interests are not
valid, enforceable and duly perfected first priority security interests and
liens in and to the Collateral, (b) neither it nor any subsidiary of Sprint
Corporation will argue that any such Guaranty or Security Interest is subject to
avoidance, limitation or subordination under any legal or equitable theory or
cause of action, and (c) so long as the Management Agreement is in effect, it
will not sell, transfer or assign all or part of the Licenses that Affiliate has
the right to use under such Management Agreement; provided, however, that
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notwithstanding the foregoing, a Sprint Party may at any time sell, transfer or
assign all or part of the Licenses that such Affiliate has the right to use in
accordance with a transaction allowed under Section 17.15.5 of such Management
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Agreement, so long as the buyer, transferee or assignee, as the case may be,
agrees to be bound by the terms of this Consent and Agreement.
Each Sprint Party acknowledges and agrees that (i) Sections 17.15.1 and
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17.15.2 of the Management Agreement do not apply to the assignment of either
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Affiliate's rights under the Sprint Agreements to the Administrative Agent or
the Lenders under the Loan Documents or in connection with a transaction
permitted pursuant to this Consent and Agreement to any other Person pursuant to
the Loan Documents or to any other assignment in connection with any transaction
permitted pursuant to this Consent and Agreement and (ii) Section 17.15.3 of the
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Management Agreement shall not apply to any Change of Control of either
Affiliate in connection with the exercise by the Administrative Agent of any of
its rights or remedies under the Loan Documents, including without limitation in
connection with the sale of the membership interests or partnership interests of
such Affiliate to any Person or to any other Change of Control of such
Affiliate; provided, however, Section 17.15.3 of the Management Agreement shall
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apply to any such transaction if such transaction is not with the Administrative
Agent or the Lenders or is not a transaction permitted pursuant to this Consent
and Agreement. It is
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understood that any assignment described in this Section 1 to the Administrative
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Agent or the Lenders is hereby consented to by the Sprint Parties; provided,
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that any subsequent assignment by the Administrative Agent or the Lenders shall
be in accordance with the terms of this Consent and Agreement.
SECTION 2. Payments. Upon receipt of the Administrative Agent's
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written instructions, each Sprint Party agrees to make all payments (if any) to
be made by it under the Sprint Agreements, subject to its rights of setoff or
recoupment with respect to such payments as permitted under Section 10.6 of the
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Management Agreement, to either Affiliate directly to the Administrative Agent,
or otherwise as the Administrative Agent shall direct; provided, that during the
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period that Sprint PCS is making such payments directly to the Administrative
Agent or its designee pursuant to this Section 2, Sprint PCS' setoff and
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recoupment rights under such Section 10.6 shall not be limited to undisputed
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amounts. Any payments made by any Sprint Party directly to, or at the
direction of, the Administrative Agent shall fully satisfy any obligation of
such Sprint Party to make payments to Affiliates under the Sprint Agreements to
the extent of such payments.
SECTION 3. Notice and Effect of Event of Default, Management Agreement
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Breach and Event of Termination. The Administrative Agent agrees to provide to
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Sprint PCS a copy of any written notice that Administrative Agent sends to
Parent, promptly after sending such notice, that a Default or an Event of
Default has occurred and is continuing, and Sprint PCS agrees to provide to the
Administrative Agent a copy of any written notice that Sprint PCS sends to
either Affiliate, promptly after sending such notice, that an Event of
Termination or an event that if not cured, or if notice is provided, will
constitute an Event of Termination (each of an Event of Termination and an event
that if not cured would constitute an Event of Termination, a "Management
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Agreement Breach") has occurred. Sprint Spectrum and SprintCom acknowledge that
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the Administrative Agent has informed them that an Event of Termination
constitutes an Event of Default under the Loan Documents, and Sprint Spectrum
and SprintCom further acknowledge that the Management Agreement does not
prohibit Parent or either Affiliate from curing such an Event of Default.
SECTION 4. Event of Default without a Management Agreement Breach.
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(a) Affiliates Remain as Managers or Interim Managers Appointed.
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Upon and during the continuation of an Event of Default when no Management
Agreement Breach as to which Sprint PCS has given the Administrative Agent
notice exists on the original date of occurrence of such Event of Default,
the Administrative Agent may, by prior written notice to Sprint PCS, (i)
allow Affiliates to continue to act as the Managers under the Sprint
Agreements, (ii) appoint Sprint Spectrum to act as "Interim Manager" under
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the Sprint Agreements, or (iii) appoint a Person other than Sprint Spectrum
to act as Interim Managers under the Sprint Agreements. If the
Administrative Agent initially allows Affiliates to continue to act as the
Managers under the Sprint Agreements, the Administrative Agent may later,
during a continuation of an Event of Default, remove
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Affiliates as Managers and take the action described above in clauses (ii)
and (iii). The date on which a Person begins serving as Interim Managers
shall be the "Commencement Date."
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(b) Sprint Spectrum or Sprint Spectrum Designee as Interim Managers.
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If the Administrative Agent appoints Sprint Spectrum as Interim Managers,
within 14 days after its appointment Sprint Spectrum shall accept the
position or designate another Person (a "Sprint Spectrum Designee") to act
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as Interim Managers under the Sprint Agreements. The Administrative Agent
shall accept Sprint Spectrum and any Sprint Spectrum Designee that is then
acting as an Other Manager (other than Affiliates) to act as Interim
Managers under the Sprint Agreements. Any Sprint Spectrum Designee that is
not an Other Manager must be acceptable to the Administrative Agent, which
acceptance will not be unreasonably withheld. If, within 30 days after the
Administrative Agent gives Sprint Spectrum notice of its appointment as
Interim Managers, Sprint Spectrum or a Sprint Spectrum Designee does not
agree to act as Interim Managers, then the Administrative Agent shall have
the right to appoint an Administrative Agent Designee as Interim Managers
in accordance with Section 4(c). At the discretion of the Administrative
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Agent, Sprint Spectrum or the Sprint Spectrum Designee shall serve as
Interim Managers for up to six months from the Commencement Date.
Upon the expiration of its initial six-month period as Interim
Managers under the Sprint Agreements, Sprint Spectrum or the Sprint
Spectrum Designee will agree, at the written request of the Administrative
Agent, to serve as Interim Managers for up to six months from such
expiration date until the Administrative Agent gives Sprint Spectrum or the
Sprint Spectrum Designee at least 30 days' written notice of its desire to
terminate the relationship; provided, that the extended period will be for
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12 months rather than six months (for a complete term of 18 months) in the
event, as of the date of the initial appointment, the aggregate number of
pops that Affiliates and all Other Managers have the right to serve under
their respective management agreements with the Sprint Parties is less than
40 million (such six or 12 month period, being the "Extension Period"). If
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Sprint Spectrum's or the Sprint Spectrum Designee's term as Interim
Managers is extended, then the Administrative Agent agrees that Sprint
Spectrum or the Sprint Spectrum Designee's right to be reimbursed by the
applicable Affiliate promptly for all amounts previously expended by Sprint
Spectrum or the Sprint Spectrum Designee under Section 11.6.3 of the
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Management Agreement (which expenditures were incurred in accordance with
Section 9 of this Consent and Agreement) shall no longer be subordinated to
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the Obligations as provided in Section 9 in this Consent and Agreement, and
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Sprint Spectrum or the Sprint Spectrum Designee's right to be reimbursed by
the applicable Affiliate for any expenses it incurs pursuant to its rights
under Section 11.6.3 of the Management Agreement as provided in the
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Management Agreement (which expenditures were incurred in accordance with
Section 9 of this Consent and Agreement) shall not be subject to the
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subordination to the Obligations as provided in Section 9 of this Consent
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and Agreement; provided, that Sprint Spectrum or the Sprint Spectrum
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Designee's right to be reimbursed for amounts expended under Section 11.6.3
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of the Management Agreements in an aggregate amount that exceed 5% of the
applicable Affiliate's shareholder's, partner's or member's equity or
capital account plus such Affiliate's long-term debt (i.e., notes that on
their face are scheduled to mature more than one year from the date
issued), as reflected on such Affiliate's books (the "Reimbursement Limit")
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shall remain subordinated to the Obligations as provided in Section 9 of
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this Consent and Agreement. Notwithstanding any other provision in this
Section 4(b) to the contrary, Sprint Spectrum or the Sprint Spectrum
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Designee shall not be required to continue to serve as Interim Managers
during the Extension Period at any time after 30 days following delivery by
it to the Administrative Agent of written notice that Sprint Spectrum or
the Sprint Spectrum Designee needs to expend amounts under Section 11.6.3
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of the Management Agreement that Sprint Spectrum or the Sprint Spectrum
Designee reasonably believes will not be reimbursed based on the projected
Collected Revenues for the remainder of the Extension Period or paid by the
Lenders. If it becomes necessary for Sprint Spectrum or the Sprint Spectrum
Designee to expend any amount that it believes will not be reimbursed or
that exceeds the Reimbursement Limit, Sprint Spectrum or the Sprint
Spectrum Designee is not required to incur such expense.
Within 20 days after the end of each calendar month that Sprint
Spectrum or the Sprint Spectrum Designee serves as Interim Managers,
commencing with the fourth such month and continuing through the
termination of the Extension Period (whether by expiration, resignation or
otherwise), Sprint Spectrum or the Sprint Spectrum Designee, as applicable,
shall provide the Administrative Agent with a written report setting forth
(i) all capital expenditures and other expenses Sprint Spectrum or the
Sprint Spectrum Designee has incurred or that it believes needs to be
incurred under Section 11.6.3 of the Management Agreement, (ii) a summary
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of the costs and anticipated benefits of each such material capital
expenditure or material expense, and (iii) a statement of projected
Collected Revenues through the end of the Extension Period. Sprint Spectrum
or the Sprint Spectrum Designee, as applicable, shall indicate when any
amounts contained in a monthly report are estimated (not actual) amounts.
Upon the termination or expiration of the term of Sprint Spectrum or
the Sprint Spectrum Designee as Interim Managers, the Administrative Agent
shall have the right to appoint successor Interim Managers in accordance
with Section 4(c).
(c) Administrative Agent Designee as Interim Managers. If the
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Administrative Agent elects to appoint a Person other than Sprint Spectrum
to act as Interim Managers under the Sprint Agreements (an "Administrative
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Agent Designee") as permitted under Sections 4(a)(iii) and 4(b), such
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Administrative Agent Designee must (i) agree to serve as Interim Managers
for six months unless terminated earlier by Sprint PCS because of a
material breach by the Administrative Agent Designee of the terms of the
Sprint Agreements that is not timely cured or by the Administrative Agent
in its discretion, (ii) meet the applicable "Successor Manager
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Requirements" set forth below in
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Section 13, and (iii) agree to comply with the terms of the Sprint
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Agreements but will not be required to assume the existing liabilities of
Affiliates. In the case of a proposed Administrative Agent Designee, Sprint
PCS shall provide to the Administrative Agent, within 10 Business Days
after the request therefor, a detailed description of all information
reasonably requested by Sprint PCS to enable Sprint PCS to determine if a
proposed Administrative Agent Designee satisfies the Successor Manager
Requirements. Sprint PCS agrees to inform Administrative Agent within 20
days after it receives such information respecting such proposed
Administrative Agent Designee from the Administrative Agent whether such
designee satisfies the Successor Manager Requirements. If Sprint PCS does
not so inform the Administrative Agent within such 20-day period, then
Sprint PCS shall be deemed to agree, for all purposes of this Consent and
Agreement, that such proposed designee satisfies the Successor Manager
Requirements. A Person that satisfies the Successor Manager Requirements
(or is deemed to satisfy such requirements) qualifies under the Management
Agreement to become a Successor Manager, unless the Administrative Agent
Designee materially breaches the terms of a Sprint Agreement while acting
as Interim Managers or no longer meets the Successor Manager Requirements.
The Administrative Agent Designee may continue to serve as Interim Managers
after the initial six-month period at the Administrative Agent's
discretion, so long as the Administrative Agent Designee continues to
satisfy the Successor Manager Requirements and it does not materially
breach the terms of the Sprint Agreements. If the Administrative Agent
Designee materially breaches any Sprint Agreement while acting as Interim
Managers, then Sprint PCS and the Administrative Agent have the rights set
forth in Section 5; provided, that Sprint PCS may not allow Affiliates to
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act as Manager of the Sprint Agreements without the Administrative Agent's
consent.
SECTION 5. Event of Default Created by a Management Agreement Breach.
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(a) Affiliates Remain as Managers or Interim Managers Appointed.
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Upon an of Default created by a Management Agreement Breach (so long as at
such time an Event of Default not created by a Management Agreement Breach
as to which Administrative Agent has given Sprint PCS notice is not in
existence), Sprint PCS may by prior written notice to Administrative Agent
(i) allow the applicable Affiliate to continue to act as the Manager under
the applicable Sprint Agreements if approved by the Administrative Agent,
(ii) act as Interim Manager under the applicable Sprint Agreements (in the
case of Sprint Spectrum) or appoint Sprint Spectrum as Interim Manager (in
the case of SprintCom), or (iii) appoint a Sprint Spectrum Designee to act
as Interim Manager under the applicable Sprint Agreements as provided in
paragraph (b) below. If Sprint PCS initially allows the applicable
Affiliate to continue to act as the Manager under the applicable Sprint
Agreements, Sprint PCS may later remove such Affiliate as Manager and take
the action described above in clauses (ii) and (iii). The Administrative
Agent shall have no right to appoint an Interim Manager when an Event of
Default is caused by a Management Agreement Breach (unless an Event of
Default not
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created by a Management Agreement Breach is in existence), unless Sprint
PCS elects not to act as Interim Manager or to appoint a Sprint Spectrum
Designee.
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim Manager.
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If Sprint Spectrum acts as Interim Manager or designates a Sprint Spectrum
Designee to act as Interim Manager under the applicable Sprint Agreements,
the Interim Manager shall serve as Interim Manager for up to six months
from the Commencement Date, at the discretion of Sprint Spectrum. The
Administrative Agent shall accept Sprint Spectrum and any Sprint Spectrum
Designee that is then acting as an Other Manager (other than Affiliate) to
act as Interim Manager under the applicable Sprint Agreements. Any Sprint
Spectrum Designee that is not then acting as an Other Manager must be
acceptable to the Administrative Agent, which acceptance will not be
unreasonably withheld.
Upon the expiration of its initial six-month period as Interim Manager
under the applicable Sprint Agreements, Sprint Spectrum or the Sprint
Spectrum Designee will agree to serve as Interim Manager for the Extension
Period until the Administrative Agent gives Sprint Spectrum or the Sprint
Spectrum Designee at least 30 days' written notice of its desire to
terminate the relationship. If Sprint Spectrum's or the Sprint Spectrum
Designee's term as Interim Manager is extended, then the Administrative
Agent agrees that Sprint Spectrum or the Sprint Spectrum Designee's right
to be reimbursed by Affiliate promptly for all amounts previously expended
by Sprint Spectrum or the Sprint Spectrum Designee under Section 11.6.3 of
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the Management Agreement (which expenditures were incurred in accordance
with Section 9 of this Consent and Agreement) shall no longer be
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subordinated to the Obligations as provided in Section 9 of this Consent
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and Agreement, and Sprint Spectrum or the Sprint Spectrum Designee's right
to be reimbursed by the applicable Affiliate for any expenses it incurs
pursuant to its rights under Section 11.6.3 of the Management Agreement as
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provided in the Management Agreement (which expenditures were incurred in
accordance with Section 9 of this Consent and Agreement) shall not be
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subject to subordinated to the Obligations as provided in Section 9 of this
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Consent and Agreement; provided, that Sprint Spectrum or the Sprint
Spectrum Designee's right to be reimbursed for amounts expended under
Section 11.6.3 of the Management Agreement in an aggregate amount that
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exceed the Reimbursement Limit shall remain subordinated to the Obligations
as provided in Section 9 of this Consent and Agreement. Notwithstanding any
other provision in this Section 5(b) to the contrary, Sprint Spectrum or
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the Sprint Spectrum Designee shall not be required to continue to serve as
Interim Manager during the Extension Period at any time after 30 days
following delivery by it to the Administrative Agent of written notice that
it needs to expend amounts under Section 11.6.3 of the Management Agreement
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that Sprint Spectrum or the Sprint Spectrum Designee reasonably believes
will not be reimbursed based on the projected Collected Revenues for the
remainder of the Extension Period or paid by the Lenders. If it becomes
necessary for Sprint Spectrum or the Sprint Spectrum Designee to expend an
amount that it believes will not be reimbursed or that exceeds the
Reimbursement Limit, Sprint Spectrum or the
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Sprint Spectrum Designee is not required to incur such expense.
Within 20 days after the end of each calendar month that Sprint
Spectrum or the Sprint Spectrum Designee serves as Interim Manager,
commencing with the fourth such month and continuing through the
termination of the Extension Period (whether by expiration, resignation or
otherwise), Sprint Spectrum or the Sprint Spectrum Designee, as applicable,
shall provide the Administrative Agent with a written report setting forth
(i) all capital expenditures and other expenses Sprint Spectrum or the
Sprint Spectrum Designee has incurred or that it believes needs to be
incurred under Section 11.6.3 of the Management Agreement, (ii) a summary
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of the costs and anticipated benefits of each such material capital
expenditure or material expense, and (iii) a statement of projected
Collected Revenues through the end of the Extension Period. Sprint Spectrum
or the Sprint Spectrum Designee, as applicable, shall indicate when any
amounts contained in a monthly report are estimated (not actual) amounts.
Upon the termination or expiration of the term of Sprint Spectrum or
the Sprint Spectrum Designee as Interim Manager and with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), Sprint Spectrum shall have the right to appoint a successor
Interim Manager in accordance with Section 5(a).
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(c) Administrative Agent Designee as Interim Managers.
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Notwithstanding anything in paragraph (a) above to the contrary, if, after
Acceleration (as defined in Section 6(a) of this Consent and Agreement) and
within 30 days after Sprint PCS gives the Administrative Agent notice of a
Management Agreement Breach, Sprint Spectrum does not agree to act as
Interim Manager or does not obtain the consent of a Sprint Spectrum
Designee to act as Interim Manager under the Sprint Agreements, or if
Sprint Spectrum or the Sprint Spectrum Designee gives the Administrative
Agent notice of its resignation as Interim Manager and Sprint Spectrum
fails to appoint a successor in accordance with Section 5(b) within 30 days
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after such resignation, the Administrative Agent may appoint an
Administrative Agent Designee to act as Interim Managers. Such
Administrative Agent Designee must (i) agree to serve as Interim Managers
for six months unless terminated earlier by Sprint PCS because of a
material breach by the Administrative Agent of the terms of the Sprint
Agreements or by the Administrative Agent in its discretion, (ii) meet the
applicable Successor Manager Requirements, and (iii) agree to comply with
the terms of the Sprint Agreements. In the case of a proposed
Administrative Agent Designee, Sprint PCS shall provide to the
Administrative Agent, within 10 Business Days after the request therefor, a
detailed description of all information reasonably requested by Sprint PCS
to enable Sprint PCS to determine if a proposed Administrative Agent
Designee satisfies the Successor Manager Requirements. Sprint PCS agrees to
inform Administrative Agent within 20 days after it receives such
information respecting such proposed Administrative Agent Designee from the
Administrative Agent whether such designee satisfies the Successor Manager
Requirements. If Sprint PCS does not so inform the Administrative Agent
within such
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20-day period, then Sprint PCS shall be deemed to agree, for all purposes
of this Consent and Agreement, that such proposed designee satisfies the
Successor Manager Requirements. A Person that satisfies the Successor
Manager Requirements qualifies under the Management Agreement to become a
Successor Manager, unless the Administrative Agent Designee materially
breaches the terms of a Sprint Agreement while acting as Interim Managers
or no longer meets the Successor Manager Requirements. The Administrative
Agent Designee may continue to serve as Interim Managers after the initial
six-month period at the Administrative Agent's discretion, so long as the
Administrative Agent Designee continues to satisfy the Successor Manager
Requirements and it does not materially breach the terms of the Sprint
Agreements. If the Administrative Agent Designee materially breaches any
Sprint Agreement while acting as Interim Managers, then Sprint PCS and the
Administrative Agent have the rights set forth in Section 5; provided, that
Sprint PCS may not allow Affiliates to act as Manager of the Sprint
Agreements without the Administrative Agent's consent.
SECTION 6. Purchase and Sale of the Operating Assets. Upon the
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occurrence and during the continuation of an Event of Default, the following
provisions shall govern the purchase and sale of the Operating Assets:
(a) Acceleration of the Obligations Under the Loan Documents. In
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the event the Lenders accelerate the maturity of the Obligations under the
Loan Documents (an "Acceleration" and, the date thereof, an "Acceleration
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Date"), the Administrative Agent shall give written notice thereof to
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Sprint PCS. Upon receipt of notice of Acceleration, Sprint PCS shall have
the right, to which right Parent, each Affiliate and each Other Investor,
by acknowledging this Consent and Agreement, expressly agrees, to purchase
the combined Operating Assets from Affiliates for an amount equal to the
greater of (i) 72% of the Entire Business Value (as defined in the
Management Agreement) of Affiliates, valued in accordance with the
procedure set forth in Section 11.7 of the Management Agreement (with the
assumption that the deemed ownership of the Disaggregated License under
Section 11.7.3 of the Management Agreement includes the transfer of the
Sprint PCS customers as contemplated by Section 11.4 of the Management
Agreement), and (ii) the aggregate amount of the Obligations. Sprint PCS
shall, within 60 days of receipt of notice of Acceleration, give Parent,
Affiliates and the Administrative Agent notice of its intent to exercise
the purchase right. In the event Sprint PCS gives the Administrative Agent
written notice of its intent to purchase the Operating Assets, the
Administrative Agent agrees that it shall not enforce its Security
Interests in the Collateral until the earlier to occur of (i) expiration of
the period consisting of 120 days after the Acceleration Date (or such
later date that shall be provided for in the purchase agreement and
acceptable to the Administrative Agent in its discretion to close the
purchase of the Operating Assets) or (ii) receipt by Administrative Agent,
Parent and Affiliates from Sprint PCS of written notice that Sprint PCS has
determined not to proceed with the closing of the purchase of the Operating
Assets for any reason. If after the 120-day period after the Acceleration
Date, Parent or either
10
Affiliate receives any purchase offer for its Operating Assets or Pledged
Equity that is confirmed in writing by Parent or such Affiliate to be
acceptable to Parent or such Affiliate, Sprint PCS shall have the right
subject to the consent of the Administrative Agent, to purchase such
Operating Assets or Pledged Equity, as the case may be, on terms and
conditions at least as favorable to Parent or such Affiliate as the terms
and conditions proposed in such offer so long as within 14 Business Days
after Sprint PCS's receipt of such other offer Sprint PCS offers to
purchase such Operating Assets or Pledged Equity and so long as the
conditions of Sprint PCS's offer and the amount of time it will take Sprint
PCS to effect such purchase is acceptable to Parent, such Affiliate and
Administrative Agent. Any such offer shall be confirmed in writing by the
third party offeror. In the event Sprint PCS exercises its rights under
this Section 6(a), (i) Parent, the Other Investors and Affiliates shall
------------
sell the Operating Assets or the Pledged Equity to Sprint PCS, (ii) the
Administrative Agent and the Lenders shall consent to such purchase and
sale, and (iii) Sprint PCS shall make all payments to be made under this
Section 6(a) to Administrative Agent for its application against the
Obligations. The purchase right of the Sprint Parties under this Section
-------
6(a) shall be in substitution of the purchase rights of the Sprint Parties
----
under Section 11.6.1 or any other provision of the Management Agreement. If
--------------
Sprint PCS purchases the Operating Assets or the Pledged Equity of
Affiliates as permitted under this Section 6(a), and the Obligations have
------------
been paid in full and the Credit Agreement is terminated or assigned to a
Sprint Party, the Administrative Agent and the Subsidiaries will release or
assign their interests in the Collateral, the Loan Documents and the
Guaranty Documents as described below in Section 6(d).
(b) Sale of Operating Assets to Third Parties. If the Sprint Parties
-----------------------------------------
do not purchase the Operating Assets from Affiliates after an Acceleration
as described above in Section 6(a), the Collateral may be sold as follows:
------------
(i) Sale to Successor Manager. The Collateral may be sold by
-------------------------
the Administrative Agent (in its sole discretion) in the exercise of
certain of its rights and remedies as a secured party under the Loan
Documents or by Parent or either Affiliate, at the discretion of the
Administrative Agent, to a person that satisfies the Successor Manager
Requirements. Sprint PCS shall provide to the Administrative Agent, with a
copy to Parent or such Affiliate, within 10 Business Days after the request
therefor, a detailed description of all information reasonably requested by
Sprint PCS to enable Sprint PCS to determine if a proposed buyer satisfies
the Successor Manager Requirements. Sprint PCS agrees to inform the
Administrative Agent and Parent or such Affiliate within 20 days after it
receives such information respecting such proposed buyer from the
Administrative Agent whether such designee satisfies the Successor Manager
Requirements. If Sprint PCS does not so inform the Administrative Agent
within such 20-day period, then Sprint PCS shall be deemed to agree, for
all purposes of this Consent and Agreement, that such proposed designee
satisfies the Successor Manager Requirements. If the proposed buyer
satisfies the Successor Manager Requirements (or is deemed to satisfy such
requirements) and wishes to become a "Successor Manager",
-----------------
11
the buyer must agree to be bound by the Sprint Agreements; provided, that
--------
buyer shall have no responsibility or liability for any liability to any
Person other than a Sprint Party and Related Party of Sprint PCS arising
out of such Affiliate's operations prior to the date buyer becomes bound by
the applicable Sprint Agreements. In such case the applicable Sprint
Agreements shall remain in full force and effect with the buyer as
Successor Manager and this Consent and Agreement shall remain in full force
and effect for the benefit of the Successor Manager and any Person
providing senior secured debt financing to such Successor Manager if
required by such Person. Sprint PCS agrees, with respect to any past
failure of such Affiliate to perform any obligation under the applicable
Sprint Agreements, that the Successor Manager shall have the same amount of
time to perform such obligation that such Affiliate had under the
applicable Sprint Agreements, with the performance period commencing on the
date on which the buyer becomes a Successor Manager. Sprint PCS shall
permit the performance period set forth in the Management Agreement to be
extended for such period of time that Sprint PCS believes is reasonable to
allow Successor Manager to perform such unperformed obligations.
(ii) Sale to Other than Successor Manager. The Collateral may
------------------------------------
be sold pursuant to the exercise by the Administrative Agent or the Lenders
of their rights and remedies under the Loan Documents or by Parent or
either Affiliate, at the discretion of the Administrative Agent (subject to
requirements of applicable law) to a person that does not satisfy the
Successor Manager Requirements or to a person that does not wish to become
a Successor Manager, but only under the following conditions:
(A) the Sprint Parties may terminate the applicable
Sprint Agreements with such buyer following the closing of such purchase
(and the Administrative Agent and the buyer shall have no rights thereto or
thereunder with respect to events occurring after the closing of such
purchase);
(B) the buyer may purchase the applicable Disaggregated
License (with the amount of Spectrum described below in Section 6(b)(iv)
----------------
and with such Disaggregated License having the characteristics described in
the definition thereof) for a price equal to the sum of (1) the original
cost of the applicable License to Sprint PCS pro rated on a pops and
spectrum basis, plus (2) the microwave relocation costs paid by Sprint PCS
attributable to clearing the Spectrum in such Disaggregated License, plus
(3) the amount of carrying costs to Sprint PCS attributable to such
original cost and microwave relocation costs from the date of this Consent
and Agreement to and including the date on which such Disaggregated License
is transferred to the buyer, based on a rate of 12 percent per annum; and
(C) the purchase agreement with the buyer contains the
requirements set forth in Section 6(c) of this Consent and Agreement.
------------
(iii) Confidentiality Agreement. Before any potential buyer is
-------------------------
12
provided Confidential Information respecting the potential purchase of any
of the Collateral (which buyer shall be entitled to receive), the potential
buyer shall execute a confidentiality agreement in the form attached as
Exhibit A with such changes thereto as may be reasonably requested by the
---------
parties to the agreement; provided, however, in the event the potential
--------
buyer does not satisfy the Successor Manager Requirements or has notified
Parent, the applicable Affiliate, Sprint PCS or the Administrative Agent
that it does not intend to be a Successor Manager, Confidential Information
that constitutes or relates to any technical, marketing, financial,
strategic or other information concerning any of the Sprint Parties and
that does not pertain to the business of such Affiliate shall not be
permitted to be provided to such potential buyer.
(iv) Amount of Spectrum Sold. Sprint PCS will sell Spectrum as
-----------------------
follows when required under Section 6(b)(ii)(B):
-------------------
(A) If the buyer, an entity with respect to which such
buyer directly or indirectly through one or more persons owns the total
voting power or at least 50% of the total voting power or at least 50% of
the total equity (a "controlled entity"), an entity that directly or
-----------------
indirectly through one or more persons has a parent entity that owns at
least 50% of the voting power or at least 50% of the total equity of both
the buyer and the common controlled entity (a "common controlled entity"),
------------------------
owns a license to provide wireless service to at least 50% of the pops in a
BTA with respect to which such buyer proposes to purchase Spectrum (each a
"Restricted Party" with respect to such BTA), the buyer may buy only 5 MHz
----------------
of Spectrum for such BTA.
(B) If the buyer is not a Restricted Party for a BTA
with respect to which such buyer proposes to purchase Spectrum, and either
does not satisfy the Successor Manager Requirements (other than those set
forth in Section 13(b) of this Consent and Agreement) or does not wish to
-------------
be a Successor Manager, then the buyer may buy 5 MHz, 7.5 MHz or 10 MHz as
the buyer determines in its sole discretion.
(c) No Direct Solicitation of Customers. Upon the sale of Collateral or
-----------------------------------
Disaggregated License in accordance with this Consent and Agreement pursuant to
Section 6(b)(ii), then the Sprint Parties agree to transfer to the buyer
----------------
thereof the customers with a MIN assigned to the Service Area covered by such
Disaggregated License, but Sprint PCS shall retain the customers of a national
account and any resellers who are then party to a resale agreement with Sprint
PCS. Each Sprint Party agrees to take all actions reasonably requested by the
buyer of such Collateral to fully transfer to such purchaser such customers.
Each Sprint Party agrees that neither it nor any of its Related Parties will
directly or indirectly solicit, for six months after the date of transfer, the
customers with a MIN assigned to the Service Area covered by such Disaggregated
License; provided, that Sprint PCS retains the customers of a national account
--------
and any resellers that have entered into a resale agreement with Sprint PCS,
Sprint PCS may advertise nationally, regionally and locally, and engage direct
marketing firms to solicit customers generally. If the buyer continues to
operate the purchased assets as a wireless network
13
in the same geographic area on a network that is technologically compatible with
Sprint PCS's network, the buyer and Sprint PCS shall each agree to provide
roaming services to the other (in the case of Sprint PCS, the roaming services
shall be provided to those customers of buyer in the geographic area serviced by
such Disaggregated License roaming nationally and, in the case of buyer, the
roaming services shall be provided to those customers of Sprint PCS roaming in
the geographic area covered by such Disaggregated License) pursuant to a roaming
agreement to be entered into between buyer and Sprint PCS and to be mutually
agreed upon so long as such agreement is based on Sprint PCS's then standard
roaming agreement used by Sprint PCS in the industry and the price that each
party shall pay the other party for roaming services provided to the first party
shall be a price equal to the lesser of: (1) MFN Pricing provided by buyer to
third parties roaming in the geographic area serviced by such Disaggregated
License; and (2) the national average paid by Sprint PCS to third parties for
Sprint PCS's customers to roam in such third parties' geographic areas
(including Other Managers). Such obligations with respect to roaming shall
continue until such roaming agreement is terminated pursuant to its terms. The
buyer shall agree in writing that if it continues to operate the purchased
assets as a wireless network in the same geographic area on a network that is
technologically compatible with Sprint PCS's network, the buyer shall, to the
extent required by law, provide resale to Sprint PCS in the geographic area
covered by such Disaggregated License at the MFN Pricing that buyer charges
third parties who purchase resale from buyer; provided, however, if buyer is not
--------
offering resale to any other customers then pricing of resale provided to Sprint
PCS shall be as mutually agreed; and provided, further, however, whether or not
-------- -------
buyer is required by law to offer such resale, buyer shall offer such resale (on
the terms described in this sentence) to national customers of Sprint PCS.
(d) Release and Assignment of Rights. If Sprint PCS purchases the
--------------------------------
Operating Assets or the Pledged Equity as permitted under Section 6(a) or
------------
Section 10, and the Obligations have been paid in full and the Credit Agreement
----------
is terminated or assigned to a Sprint Party: (i) Parent, Subsidiaries and the
Other Investors will have no right to any amounts paid by Sprint PCS pursuant to
such purchase (except to the extent such purchase is pursuant to Section 6(a)
------------
and the amount paid by Sprint PCS exceeds the amount of the Obligations and is
not payable to other creditors of Parent or Subsidiaries); (ii) the
Administrative Agent will, at the election of Sprint PCS, either release or
assign to Sprint PCS, all Security Interests in the Collateral, and release or
assign to Sprint PCS, all rights related to the Loan Documents and the Guaranty
Documents and all payments under the Loan Documents and the Guaranty Documents;
and (iii) the Subsidiaries and the Other Investors will, at the election of
Sprint PCS, release or assign to Sprint PCS, any and all rights they have
against the Collateral or arising out of any payment to the Administrative
Agent, Lucent or any Sprint Party with respect to the Loan Documents or the
Guaranty Documents.
Notwithstanding anything contained in Sections 6(a), 6(d), 10(a),
10(b) or 10(d), or any other provision in this Consent and Agreement, any
purchase of Operating Assets, the Pledged Equity or the Obligations by Sprint
PCS and any release or assignment of Security Interests in the Collateral rights
related to the Loan Documents or the Guaranty Documents or
14
payments under the Loan Documents or the Guaranty Documents, or any release or
assignment of rights arising out of any payment to the Administrative Agent,
Lucent or any Sprint Party with respect to the Loan Documents or the Guaranty
Documents will be subject to Lucent's rights under the Lucent Guaranty and the
Lucent Reimbursement Agreement, including, without limitation, Lucent's rights
of subrogation contained therein.
SECTION 7. No Limits on Remedies. Nothing contained in this Consent
---------------------
and Agreement shall limit any rights of the Administrative Agent or Lenders to
cause an Acceleration. Except as expressly provided herein, nothing contained
in this Consent and Agreement shall limit any rights or remedies that the
Administrative Agent or the Lenders may have under the Loan Documents or
applicable law. The Administrative Agent may not sell, lease, assign, convey or
otherwise dispose of the Collateral other than as permitted under this Consent
and Agreement.
SECTION 8. Rights and Obligations of Interim Manager. An Interim
-----------------------------------------
Manager may collect a reasonable management fee for its services; provided, that
--------
if Sprint Spectrum or a Related Party of Sprint PCS acts as Interim Manager,
such management fee shall not exceed the direct expenses relating to Sprint
Spectrum or such Related Party employees for the actual time spent by such
employees when performing the function of Interim Manager and Sprint Spectrum's
or such Related Party's out-of-pocket expenses. Such direct expenses shall
include such employees' salaries and benefits, and the out-of-pocket and accrued
expenses allocated to such employees. If Sprint Spectrum is the Interim Manager,
the management fee will be paid out of the 92% Management Fee that Sprint PCS
pays under the Management Agreement, and will be in addition to the fees it
receives under the Services Agreement. Sprint PCS shall collect such management
fee by setoff against the fees and any other amounts payable to the applicable
Affiliate under the Sprint Agreements. The Interim Manager will be required to
operate the applicable Service Area Network in accordance with the terms of the
applicable Sprint Agreements and will be subject to all of the requirements and
obligations of such agreements, but will not be required to assume the existing
liabilities of the applicable Affiliate.
SECTION 9. Rights to Cure. Neither the provisions of this Consent and
--------------
Agreement nor any action of either Administrative Agent or Sprint PCS shall
require either Administrative Agent, any Lender or Sprint PCS to cure any
default of either Affiliate under the Sprint Agreements or to perform under the
Sprint Agreements, but shall only give it the option to do so except to the
extent otherwise required by this Consent and Agreement. Sprint PCS may
exercise its rights under Section 11.6.3 of the Management Agreement upon an
--------------
Event of Termination, whether such situation arises while either Affiliate,
Sprint Spectrum, an Administrative Agent Designee or a Sprint Spectrum Designee
is acting as Interim Manager and notwithstanding any other provision of this
Consent and Agreement; provided, that the right to reimbursement for any
--------
expenses incurred in connection with such cure shall be unsecured and until such
time as the Obligations have been paid in full in cash and all commitments to
advance credit under the Credit Agreement have terminated or expired, the Person
or Persons entitled thereto shall not receive such reimbursement, except as
specifically provided in Section 4(b) or
------------
15
Section 5(b) of this Consent and Agreement. Sprint PCS shall not be permitted to
------------
deduct or setoff from its payments to either Affiliate any such amounts it is
not entitled to receive under this Section and shall not take any action of any
type to attempt to collect such reimbursement and the failure to be so
reimbursed shall not constitute a Management Agreement Breach. In the event that
Sprint PCS receives any payments or distributions that it is not entitled to
receive under this Section, such payments shall be held in trust for, and
promptly turned over to, the parties entitled thereto. If Sprint PCS has
designated a third party to take action under Section 11.6.3 of the Management
--------------
Agreement, before taking any such action such third party shall enter into an
agreement with Administrative Agent providing that such third party agrees to
the provisions of this Section 9 as if it were a party hereto. Until such time
---------
as the Obligations have been paid in full in cash and all commitments to advance
credit under the Credit Agreement have terminated or expired, Sprint PCS shall
not be entitled to exercise any other remedies under the Sprint Agreements,
including, without limitation, the remedy of terminating the Sprint Agreements
(except to the extent permitted under Sections 6(b)(ii)(A) and 12 of this
---------------------------
Consent and Agreement) or the remedy of withholding any payment set forth in
Section 10 of the Management Agreement (subject to Sprint PCS's rights of setoff
----------
or recoupment with respect to such payments as permitted under Sections 2, 4(b)
----------------
and 5(b) of this Consent and Agreement). Until such time as the Obligations have
--------
been paid in full in cash and all commitments to advance credit under the Credit
Agreement have terminated or expired, notwithstanding anything to the contrary
contained in Section 2.3 of the Management Agreement, in no event shall any
-----------
Person other than Affiliates or a Successor Manager be a manager or operator for
Sprint PCS with respect to the Service Areas and neither Sprint PCS nor any of
its Related Parties shall own, operate, build or manage another wireless
mobility communications network in the Service Areas, except to the extent
provided in Sections 2.3(a), (b), (c) or (d) of the Management Agreement and
--------------- --- --- ---
except to the extent that the Sprint Agreements are terminated in accordance
with Section 6(b)(ii)(A) of this Consent and Agreement. The Administrative Agent
-------------------
acknowledges and agrees that Sprint PCS shall also have the right to cure an
Event of Default or to assist Parent or Affiliates in curing an Event of Default
but only to the extent Parent or Affiliates have the right to so cure under the
Loan Documents, as applicable (it being understood that the act of Sprint PCS
curing an Event of Default shall not constitute an independent Event of Default
unless the act itself would otherwise constitute a Default (e.g. a sale of
assets not otherwise permitted by the Loan Documents)), including but not
limited to Sprint PCS's providing Parent or Affiliates the funds necessary to
operate or meet certain financial covenants in the Loan Documents. The
Administrative Agent shall have the right to cure any Management Agreement
Breach.
SECTION 10. Sprint PCS's Right to Purchase Obligations, Operating Assets
------------------------------------------------------------
or Pledged Equity. (a) Following the Acceleration Date or, if earlier, the 180-
-----------------
day anniversary of a Management Agreement Breach that either Affiliate fails to
cure (the "180-day Anniversary"), and until the 60-day anniversary of the filing
--------------------
of a bankruptcy petition by or with respect to Parent or any Affiliate, Sprint
PCS shall have the right to purchase the Obligations under, and as defined in,
the Credit Agreement, by repaying the Obligations in full in cash. In the event
that Sprint PCS purchases the Obligations within 60 days immediately following
the earliest of (i) the
16
Acceleration Date, (ii) the 180-day Anniversary, and (iii) the date of the
filing of a bankruptcy petition by or with respect to Parent or any Affiliate,
Sprint PCS may in lieu of purchasing the total amount of the Obligations,
purchase all Obligations other than the accrued interest with respect thereto
for a purchase price equal to the amount of the Obligations other than such
accrued interest and any fees and expenses that are unreasonable, in which case,
such accrued interest and unreasonable fees and expenses shall remain due and
owing by Parent or Affiliates to the Lenders.
(b) In the event that the Administrative Agent acquires the Operating
Assets or the Pledged Equity, Sprint PCS shall have the right to purchase the
Operating Assets or the Pledged Equity from the Administrative Agent during the
limited period of time provided in and otherwise in accordance with this Section
-------
10(b) by paying to the Administrative Agent in cash an amount equal to the sum
-----
of the aggregate amount paid (by credit against the Obligations or otherwise) by
the Administrative Agent or the Lenders for the Operating Assets or Pledged
Equity, as the case may be, plus the aggregate amount of any remaining unpaid
Obligations. Administrative Agent shall give Sprint PCS notice of any
acquisition of the Operating Assets or the Pledged Equity by the Administrative
Agent promptly following the date of final consummation of such acquisition (the
"Acquisition Notice"). Sprint PCS shall, within 60 days of receipt of a valid
-------------------
Acquisition Notice, give the Administrative Agent (and the applicable Affiliate,
in the case of a purchase of the Pledged Equity) notice of its intent to
exercise its purchase right under this Section 10(b). In the event Sprint PCS
-------------
gives the Administrative Agent written notice of its intent to purchase the
Operating Assets or the Pledged Equity, the Administrative Agent agrees that it
shall provide Sprint PCS the right to purchase the Operating Assets or Pledged
Equity, as the case may be, until the earlier to occur of (i) expiration of the
period consisting of 120 days after Sprint PCS' receipt of a valid Acquisition
Notice (or such later date that shall be provided for in the purchase agreement
and acceptable to the Administrative Agent in its sole discretion to close the
purchase of the Operating Assets or Pledged Equity) or (ii) receipt by
Administrative Agent from Sprint PCS of written notice that Sprint PCS has
determined not to proceed with the closing of the purchase of the Operating
Assets or the Pledged Equity. If Sprint PCS at any time purchases the
Operating Assets or the Pledged Equity as permitted under this Section 10, the
----------
Administrative Agent and the Subsidiaries will release or assign their interests
in the Collateral, the Loan Documents and the Guaranty Documents as described in
Section 6(d). Notwithstanding the foregoing, in the event that a bankruptcy
------------
petition is filed by or with respect to any Affiliate, Sprint PCS shall again
have the right to purchase the Operating Assets or the Pledged Equity from the
Administrative Agent by repaying the Obligations in full in cash, by giving the
Administrative Agent notice of its intent to exercise such purchase right no
later than 60 days following the date of filing of such bankruptcy petition.
(c) If at any time during the period described in Section 10(a) or
-------------
10(b) above or thereafter the Administrative Agent receives any purchase offer
-----
for the Operating Assets, the Pledged Equity or the Obligations, as applicable,
that is acceptable to the Administrative Agent, the Administrative Agent shall
exercise reasonable efforts to obtain the consent of the offeror to
17
deliver a copy of such offer to Sprint PCS and Sprint PCS shall have the right
to purchase the Operating Assets, the Pledged Equity or the Obligations, as
applicable, on terms and conditions at least as favorable to the Administrative
Agent as the terms and conditions proposed in such offer so long as within 14
Business Days after Sprint PCS's receipt of such other offer Sprint PCS offers
to purchase the Operating Assets, the Pledged Equity or the Obligations, as
applicable, and so long as the conditions of Sprint PCS's offer and the amount
of time it will take Sprint PCS to effect such purchase is acceptable to the
Administrative Agent and the Lenders.
(d) If Sprint PCS at any time purchases the entirety of the
Obligations as provided in this Section 10, the Administrative Agent shall
assign and transfer or cause the Lenders to assign and transfer to Sprint PCS
all rights and interests in, to and under all of the Loan Documents, including
but not limited to all security interests, liens, financing statements,
guaranties and other credit enhancements related to such Loan Documents, and all
rights and claims thereunder (collectively referred to as the "Loan Document
--------------
Rights"). If Sprint PCS purchases less than all the Obligations (as permitted
------
in the second sentence of Section 10(a) above), then the Administrative Agent
-------------
shall assign and transfer or cause the Lenders to assign and transfer to Sprint
PCS all Loan Document Rights, except that the Administrative Agent shall retain
the unsecured right to collect the amount of the Obligations not purchased by
Sprint PCS. If Sprint PCS at any time purchases the entirety or less than all
of the Obligations, the Subsidiaries will release any and all rights they have
against the Collateral or arising out of any payment to the Administrative
Agent, Lucent or any Sprint Party with respect to the Loan Documents or their
Guaranty Document.
SECTION 11. Foreclosure. Upon the Administrative Agent or any Lender or
-----------
any other Person that meets the Successor Manager Requirements acquiring
Operating Assets and the related Sprint Agreements, then such Person shall be
entitled to exercise any and all rights of the applicable Affiliate under the
applicable Sprint Agreements in accordance with the terms of the applicable
Sprint Agreements and each Sprint Party will thereupon comply in all respects
with such exercise by such Person and perform its obligations under the
applicable Sprint Agreements and this Consent and Agreement for the benefit of
such Person. Each Sprint Party agrees that the Administrative Agent or any
Lender may (but shall not be obligated to), subject to and in accordance with
the terms of this Consent and Agreement, assign its rights and interests
acquired in the Operating Assets and the Sprint Agreements to any buyer or
transferee thereof and, in the event the buyer wishes to become a party to the
related Sprint Agreements and such buyer satisfies the Successor Manager
Requirements, such buyer shall be bound by the applicable Sprint Agreements;
provided, that buyer shall have no responsibility or liability to any Person
--------
other than a Sprint Party and a Related Party of a Sprint Party arising out of
the applicable Affiliate's operations prior to the date buyer becomes bound by
the applicable Sprint Agreements. In such case the applicable Sprint Agreements
shall remain in full force and effect with the buyer as Successor Manager and
this Consent and Agreement shall remain in full force and effect for the benefit
of the Successor Manager and any Person providing senior secured debt financing
to such Successor Manager if required by such Person. Sprint PCS agrees, with
respect to any past failure of the applicable Affiliate to perform any
obligation under the Sprint
18
Agreements, that the Successor Manager shall have the same amount of time to
perform such obligation that the applicable Affiliate had under the Sprint
Agreements, with the performance period commencing on the date on which the
buyer becomes a Successor Manager. Sprint PCS shall permit the performance
period set forth in the Management Agreement to be extended for such period of
time that Sprint PCS believes is reasonable to allow Successor Manager to
perform such unperformed obligations.
SECTION 12. Trademarks and Service Marks. In the event the
----------------------------
Administrative Agent forecloses on its security interest in the License
Agreements and transfers the License Agreements to a Person who does not meet
the Successor Manager Requirements, then Sprint PCS shall have the right to
terminate the License Agreements and cause the Administrative Agent to release
its security interest in the License Agreements immediately prior to such
transfer.
SECTION 13. Interim Manager and Successor Manager Requirements. To
--------------------------------------------------
qualify as an Interim Manager or a Successor Manager, the Person must satisfy
each of the following "Successor Manager Requirements," as applicable:
-------------------------------
(a) The Person must not during the three-year period immediately
preceding the date of determination have materially breached any material
agreement with Sprint Spectrum or its Related Parties that resulted in the
exercise of a termination right or in the initiation of judicial or
arbitration proceedings;
(b) The Person must not be one of the Persons identified on Schedule
--------
13 (a "Schedule 13 Person"); provided, that no Other Manager under any
-- ------------------
Sprint PCS Management Agreement may be identified on Schedule 13;
(c) In the case of a Successor Manager, the Person must meet a
reasonable Person's credit criteria (taking into consideration the
circumstances), it being understood that such criteria is satisfied if the
financial projections contained in the business plan such Person submits to
Sprint PCS shows the ability to service its indebtedness and meet the
build-out requirements contained in the Build-out Plan; and
(d) The Person must agree to be bound by the terms of the applicable
Sprint Agreements as if an original party thereto; provided, in the case of
--------
an Interim Manager, the Person must also execute a separate confidentiality
agreement in the form attached as Exhibit A with such changes thereto as
---------
may be reasonably requested by the parties to the agreement, but the Person
is not required to assume the existing liabilities of the applicable
Affiliate.
Except as provided in Schedule 13, the Administrative Agent, each Lender
-----------
and each of their wholly-owned subsidiaries or entities who wholly-own such
entities shall be deemed to satisfy Sections 13(a), (b) and (c) of the preceding
--------------- --- ---
"Successor Management Requirements".
---------------------------------
19
SECTION 14. Management Agreement. Sprint PCS agrees that it will not
--------------------
exercise its right under the Management Agreement to purchase the Operating
Assets or to sell the Disaggregated License to either Affiliate if before, or
after giving effect to such exercise, there would exist a Default or Event of
Default under the Credit Agreement, unless Sprint PCS pays the aggregate amount
of the Obligations as a condition of the exercise of such right and the Credit
Agreement shall have been terminated in connection with such payment. Sprint PCS
agrees that until the Obligations have been paid in full in cash and all
commitments to advance credit under the Credit Agreement have terminated or
expired, a failure to pay any amount by any Related Party of any Affiliate under
any agreement with Sprint PCS or any of its Related Parties (other than the
Management Agreements, the Services Agreements or the License Agreements) shall
not constitute a Management Agreement Breach for any purpose. Subject to
regulatory approval in connection with any such sale, Sprint PCS agrees that it
shall always maintain the ability to sell the Disaggregated License in
accordance with this Consent and Agreement. Sprint PCS shall own at least 10 MHz
of Spectrum in each Service Area until the first to occur of the following
events: (i) the Obligations have been paid in full in cash and all commitments
to advance credit under the Credit Agreement have terminated or expired, (ii)
the sale by Sprint PCS of the Spectrum for such Service Area pursuant to this
Consent and Agreement shall be effected, (iii) the sale of the Operating Assets
for such Service Area pursuant to this Consent and Agreement, and (iv) the
termination of the Management Agreement for such Service Area. Sprint PCS
acknowledges that the financing provided pursuant to the Loan Documents, the
senior subordinated discount notes to be issued under that certain Indenture
between Parent and The Depository Trust Company, as trustee thereunder, pursuant
to the terms and conditions set forth in the Offering Memorandum of Parent
delivered to potential buyers of such notes, and the private placement of
preferred stock of Parent to The 1818 Fund III, L.P. contemplated by Parent,
comply with Section 1.7 of the Management Agreements, as amended by Addendum II
-----------
to the February 8, 1999 Management Agreement and Addendum III to the June 8,
1998 Management Agreement ("Section 1.7"), and that Section 11.3.6 of such
----------- --------------
Management Agreements shall no longer be applicable with respect to such
financings, so long as the amounts and deadlines set forth in Section 1.7 are
satisfied. Notwithstanding anything to the contrary contained in Section 12.2 of
------------
the Management Agreement, the Administrative Agent, the Lenders, and any
Successor Manager or buyer of the Operating Assets or Disaggregated License
shall be permitted to disclose Confidential Information (as defined in the
Management Agreement) (i) to the extent required by law, rule or regulation,
(ii) to any regulator or any regulatory body regulating such entity, (iii) to
any rating agency in connection with requirements applicable to such Person and
(iv) to the lawyers and accountants for any such Persons.
SECTION 15. Administrative Agent and Eligible Assignees.
-------------------------------------------
(a) The Administrative Agent and each Lender must be an Eligible
Assignee. "Eligible Assignee" shall mean and include a commercial bank,
-----------------
financial institution, other "accredited investor" (as defined in Regulation D
of the Securities Act) other than individuals, or a "qualified institutional
-----------------------
buyer" as defined in rule 144A of the Securities
-----
20
Act; provided, that prior to the 61st day after the filing of a bankruptcy
--------
petition by or with respect to Affiliate in no event may any Person that is
engaged in or that controls, is controlled by or is under common control with
any Person engaged in, the telecommunications service business in the United
States (other than Sprint Corporation and its subsidiaries), be an Eligible
Assignee, it being understood that no small business investment corporation that
is ultimately owned by an Eligible Assignee that is subject to Regulation Y
shall be deemed to be controlled by or under common control with such Eligible
Assignee; and provided further, that after the filing of such bankruptcy
----------------
petition in no event may a Schedule 13 Person be an Eligible Assignee.
(b) If (i) the Administrative Agent or any Lender becomes a Schedule
13 Person and (ii) a new Administrative Agent or Lender (as applicable) commits
to purchase all interests of such Administrative Agent or Lender in the
Obligations and the Loan Documents and assume all commitments and obligations of
such Administrative Agent or Lender under the Loan Documents, in each case
within such three months as described in clause (A) below, for the aggregate
amount of the unpaid Obligations of such Administrative Agent or Lender, then
such Administrative Agent or Lender shall (A) assuming such purchaser does not
breach its commitment to so purchase, divest itself of all interests in the
Obligations and the Loan Documents within three (3) months after such
Administrative Agent or Lender becomes a Schedule 13 Person by selling such
interests in consideration of the payment of such aggregate amount and the
assumption of such commitments and obligations, and (B) promptly upon the
consummation of such sale, no longer be given or be entitled to receive any
Confidential Information. In no event shall the Administrative Agent or any
Lender be obligated or responsible to find or obtain a purchaser to purchase any
Obligations or Loan Documents or to assume any commitments or obligations.
SECTION 16. Sprint Party Representations. Each Sprint Party represents
----------------------------
and warrants to the Administrative Agent, as of the Closing Date (a) its
execution, delivery and performance of this Consent and Agreement has been duly
authorized by all necessary corporate and partnership action, and does not and
will not require any further consents or approvals that have not been obtained,
or violate any provision of any law, regulation, order, judgment, injunction or
similar matters or materially breach any agreement presently in effect with
respect to or binding on it; provided, that the transfer of Spectrum as
--------
contemplated under this Consent and Agreement will require regulatory approval
(which each Sprint Party agrees to use its commercially reasonable efforts to
obtain); (b) this Consent and Agreement is a legal, valid and binding obligation
of such Person enforceable against it in accordance with its terms, except that
(i) such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally, and (ii) the remedy of specific
performance and injunctive and other forms of equitable relief may be limited by
equitable defenses and by the discretion of the court before which any
proceeding may be brought; (c) the Sprint Agreements are in full force and
effect and have not been amended, supplemented or modified; (d) as of the date
of execution hereof, to the knowledge of the Sprint
21
Parties, no Event of Termination has occurred and is continuing (without regard
to any requirement of the delivery of written notice necessary to the occurrence
of an Event of Termination under Section 11.3 of the Management Agreement);
------------
provided, that Sprint PCS has delivered to Affiliate and the Administrative
--------
Agent a document titled "Management Agreement Non-Compliance Summary," which
describes events that, if not cured, will become Events of Termination; (e) on
the date the Management Agreement was executed Sprint PCS owned, and on the date
hereof Sprint PCS owns, 10 MHz or more of Spectrum in the Service Areas; and (f)
the only existing agreements or arrangements between either Affiliate, on the
one hand, and Sprint Corporation or any of its subsidiaries, on the other hand,
are the Management Agreement, the Services Agreements and the License
Agreements.
SECTION 17. Administrative Agent Representations. The Administrative
------------------------------------
Agent represents and warrants to Sprint PCS, as of the Closing Date (a) its
execution, delivery and performance of this Consent and Agreement has been duly
authorized by all necessary corporate action, and does not and will not require
any further consents or approvals that have not been obtained, or violate any
provision of any law, regulation, order, judgment, injunction or similar matters
or materially breach any agreement presently in effect with respect to or
binding on it; (b) this Consent and Agreement is a legal, valid and binding
obligation of the Administrative Agent enforceable against it in accordance with
its terms, except that (i) such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws affecting the enforcement of creditors' rights generally, and (ii)
the remedy of specific performance and injunctive and other forms of equitable
relief may be limited by equitable defenses and by the discretion of the court
before which any proceeding may be brought; (c) at the time of the execution
hereof, the only Lenders are CoBank, ACB, The Bank of New York, First Union
National Bank, City National Bank (LSA), PNC Bank, The CIT Group/Equipment
Financing, Inc., Coast Business Credit, a division of Southern Pacific Bank; and
(d) as of the date of execution hereof, to the knowledge of the Administrative
Agent, no Event of Default has occurred and is continuing; and (e) the
Guaranties have been received from the parties to such agreements.
SECTION 18. Successors and Assigns. This Consent and Agreement shall be
----------------------
binding upon the successors and assigns of the parties hereto and shall inure,
together with the rights and remedies of the parties hereunder, to the benefit
of their respective successors and assigns. In the event the Sprint PCS Network
is sold in accordance with the Management Agreement, the buyer thereof will
assume the obligations of the Sprint Parties hereunder and under all the other
Sprint Agreements other than the Sprint Trademark and Service Xxxx License
Agreements; provided, however, the buyer of the Sprint PCS Network shall enter
--------
into agreements with Affiliates on substantially the same terms as the Sprint
Trademark and Service Xxxx License Agreements with respect to such buyers'
trademarks, service marks, brands, etc. In the event a Successor Manager becomes
a party to the Sprint Agreements as provided in this Consent and Agreement, this
Consent and Agreement shall remain in full force and effect for the benefit of
the Successor Manager and any Person providing senior secured debt financing to
such Successor Manager if required by such Person.
22
SECTION 19. Amendment. Neither this Consent and Agreement nor any
---------
provision herein may be waived except pursuant to an agreement or agreements in
writing entered into by Sprint PCS, the Administrative Agent, Parent and
Affiliates, and neither this Consent and Agreement nor any provision herein may
be amended or modified except pursuant to an agreement or agreements in writing
entered into by Sprint PCS, the Administrative Agent, Parent and Affiliates.
The Administrative Agent and each Lender (and its successors and assigns) shall
be bound by any modification or amendment authorized by this Section 19. No
----------
amendment or waiver or effective amendment or waiver entered into in violation
of this Section 19 shall be valid; provided, however, that no consent of Parent,
----------
the Other Investors or Affiliates shall be necessary for any amendment or
modification to this Consent and Agreement made pursuant to and in accordance
with Section 24 hereof.
----------
SECTION 20. APPLICABLE LAW. THIS CONSENT AND AGREEMENT SHALL BE
--------------
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
COLORADO.
SECTION 21. Notices. Notices and other communications provided for in
-------
this Consent and Agreement shall be in writing and shall be delivered by hand or
overnight courier service, mailed or sent by telecopy, as follows:
(a) if to Sprint PCS, to it at:
Sprint Spectrum L.P.
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
0000 Xxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx, 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: General Counsel
(b) if to the Administrative Agent, to it at:
CoBank, ACB, as Administrative Agent
23
000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Rural Utility Banking Group
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to Louisiana Unwired, to it at:
Louisiana Unwired, LLC
c/o US Unwired Inc.
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Finance Department
with a copy to:
Legal Department - US Unwired
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(d) if to Texas Unwired, to it at:
Texas Unwired
c/o US Unwired Inc.
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Finance Department
with a copy to:
Legal Department - US Unwired
Xxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
24
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
All notices and other communications given to any party hereto in accordance
with the provisions of this Consent and Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy, or on the date five (5) business days after dispatch by
certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 21 or in
----------
accordance with the latest unrevoked direction from such party given in
accordance with this Section 21.
----------
SECTION 22. Counterparts. This Consent and Agreement may be executed in
------------
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
SECTION 23. Severability. Any provision of this Consent and Agreement
------------
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties shall
endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provision with valid provisions the economic effect of which is as
close as possible to that of the invalid, illegal or unenforceable provision.
SECTION 24. Amendments to Form Consent and Agreement. If Sprint PCS
----------------------------------------
modifies or amends the form of Consent and Agreement it enters into with another
lender, then Sprint PCS agrees to give the Administrative Agent written notice
of such modifications and amendments and, at the request of Administrative
Agent, to amend this Consent and Agreement in the same manner; provided, that:
--------
(a) Sprint PCS will not modify this Consent and Agreement to incorporate changes
made for the benefit of a lender because of circumstances related to a
particular Other Manager, subject to the limitations set forth below; (b) the
Administrative Agent must agree to make all (or none) of the changes made for
the other lender and the Other Manager, unless Sprint PCS agrees to allow the
Administrative Agent to make only some of the changes; and (c) Sprint PCS is
only required to make changes to this Consent and Agreement based on changes
made to the form of Consent and Agreement executed in connection with loans to
Other Managers that are syndicated or intended to be syndicated (i.e., loans
sold or participated, or intended to be sold or participated, in whole or in
part to at least three financial institutions or investment funds) (a
"Syndication Consent") until the later to occur of: (i) five Syndication
--------------------
Consents are executed, and (ii) loans to Other Managers are syndicated where the
pops in the Service Areas of such Other Managers, in the aggregate, exceed 10
million; provided, however, that in the event any Syndicated Consent executed
-----------------
after such later date relates to a transaction where the pops in the Service
Area of the Other Manager exceed 5 million, Sprint PCS agrees to give the
Administrative Agent the right to so amend this Consent and Agreement,
25
subject to the provisions of clauses (a) and (b) above.
For purposes of subsection (a) in the preceding paragraph, Sprint PCS will
not deem the following changes to be made because of circumstances related to a
particular Other Manager: (i) any form of recourse to Sprint PCS or other
similar form of credit enhancement; (ii) any change in Sprint PCS's right to
purchase Operating Assets, the Pledged Equity or Obligations; (iii) any change
in an affiliate's, administrative agent's or lenders' right to sell the
collateral or purchase the Disaggregated License (including, without limitation,
any rights of first refusal and the purchase price of the Disaggregated
License); (iv) any change in the ownership status, terms of usage or amount of
Disaggregated License utilized by an affiliate; (v) any material change in the
flow of revenues between Sprint Spectrum and an affiliate excluding changes
related to the pricing of direct or indirect fees, but including any
subordination of direct or indirect fees or other amounts or costs due under the
Sprint Agreements or hereunder to Sprint PCS; (vi) any change to obligations
required to be assumed by, or qualifications for, any Interim or Successor
Manager, including changes in the time period or terms under which Sprint PCS
agrees to remain as Interim Manager; (vii) any changes in confidentiality, non-
compete or Eligible Assignee language, including changes to Schedule 13; (viii)
any clarifications of FCC compliance issues; (ix) the issuance of legal
opinions; (x) any change in the circumstances under, or procedures by which, an
Interim Manager or Successor Manager is appointed; or (xi) any change to this
Section 24.
SECTION 25. Termination. Except as otherwise provided herein, this
-----------
Consent and Agreement shall terminate and be of no further force and effect upon
the first to occur of the following: (a) the Obligations are paid in full and
the Credit Agreement is terminated or assigned to a Sprint Party; and (b) the
Sprint Agreements terminate.
SECTION 26. Texas Unwired. Texas Unwired is a Texas general partnership
-------------
with three partners: Louisiana Unwired, Fort Bend Communications Corporation and
XIT Leasing, Inc. Louisiana Unwired intends to extend credit to Texas Unwired
under an inter-company loan. So long as such inter-company loan is outstanding,
Administrative Agent and the Lenders will have a security interest in the assets
of Texas Unwired, and such assets will be Collateral under the Loan Documents.
Sprint PCS's right to buy the assets of Texas Unwired under Sections 6 and 10 of
this Consent and Agreement shall continue for so long as such assets are
Collateral under the Loan Documents (even if Lucent, and not the Lenders, have
the right to enforce the Loan Documents). The partnership interest of Texas
Unwired held by Louisiana Unwired shall continue to be Pledged Equity under this
Consent and Agreement even if the assets of Texas Unwired are no longer
Collateral under the Loan Documents.
[The remainder of this page is intentionally left blank.]
26
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Agreement to be executed by their respective authorized officers as of the date
and year first above written.
SPRINT SPECTRUM L.P.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Chief Business Development Officer
SPRINTCOM, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Vice President
WIRELESSCO, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
Chief Business Development Officer
SPRINT COMMUNICATIONS COMPANY, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, Senior Vice President,
Consumer Market Strategy and Communications
COBANK, ACB,
for itself and as Administrative Agent
By: /s/ Xxxxxx X. Paurtain
-----------------------------------
Name: Xxxxxx X. Paurtain
---------------------------------
Title: Assistant Corporate Secretary
--------------------------------
27
Acknowledgment, Consent and Agreement of Affiliates
---------------------------------------------------
Each of the undersigned Affiliates (i) has reviewed this Consent and
Agreement, (ii) acknowledges, consents and agrees to the terms and provisions of
this Consent and Agreement, and (iii) agrees to be bound by the terms and
provisions of this Consent and Agreement, including, without limitation, such
terms and provisions that affect either Affiliate, and any of such Affiliate's
assets or its rights under the Management Agreement. Without limiting the
generality of the foregoing: (i) each Affiliate acknowledges and agrees that the
right to appoint an Interim Manager is intended to allow the right and ability
to preserve and/or protect the Collateral or its value and the Service Area
Network or its value and (ii) each Affiliate acknowledges and agrees that in the
event of the sale of the Collateral by the Administrative Agent, the value of
the Collateral may be dependent on the right of the Person purchasing the
Collateral to assume or be a party to the Sprint Agreements and acknowledges
that any sale of the Collateral in accordance with Sections 6 and 10 hereof, the
-----------------
other provisions of this Consent and Agreement and, to the extent not
inconsistent with this Consent and Agreement, the Loan Documents is agreed to be
a commercially reasonable disposition of the Collateral by Administrative Agent.
Each of the undersigned agrees that this Acknowledgment, Consent and
Agreement is valid and enforceable with respect to the undersigned as to Texas
Unwired's treatment as an Affiliate even though Texas Unwired has not yet
acquired the Sprint PCS-related assets from Meretel Communications, L.P. and
become a Manager with respect to a Sprint PCS network. The undersigned's
execution of this Acknowledgment, Consent and Agreement shall continue in full
force and effect as if Texas Unwired owned such assets and was a Manager at the
time of the undersigned's execution of this Acknowledgment, Consent and
Agreement. Each of the undersigned agrees to execute one or more additional
agreements that Sprint PCS or the Administrative Agent deems to be necessary or
appropriate to evidence such continuing effect and enforceability.
LOUISIANA UNWIRED, LLC
By: _________________________________
Name: _______________________________
Title: ______________________________
TEXAS UNWIRED
By:
Name:
Title:
28
Acknowledgment, Consent and Agreement of Parent, Other Investors and
--------------------------------------------------------------------
Subsidiaries
------------
Each of the undersigned (i) has reviewed this Consent and Agreement, (ii)
acknowledges, consents and agrees to the terms and provisions of this Consent
and Agreement, particularly as they modify the price (as set forth in the
Management Agreements) pursuant to which Sprint PCS may purchase the Operating
Assets under Sections 6 and 10 hereof, and (iii) agrees to be bound by the terms
-----------------
and provisions of this Consent and Agreement and to take such action as is
necessary to cause each Affiliate and its Related Parties to comply with the
terms and provisions of this Consent and Agreement. Without limiting the
generality of the foregoing, each of the undersigned: (i) acknowledges and
agrees that the right to appoint an Interim Manager is intended to allow the
right and ability to preserve and/or protect the Collateral or its value and the
Service Area Network or its value and (ii) acknowledges and agrees that in the
event of the sale of the Collateral by the Administrative Agent, the value of
the Collateral may be dependent on the right of the Person purchasing the
Collateral to assume or be a party to the Sprint Agreements and acknowledges
that any sale of the Collateral in accordance with Sections 6 and 10 hereof, the
-----------------
other provisions of this Consent and Agreement and, to the extent not
inconsistent with this Consent and Agreement, the Loan Documents is agreed to be
a commercially reasonable disposition of the Collateral by Administrative Agent.
Each of the undersigned agrees that this Acknowledgment, Consent and
Agreement is valid and enforceable with respect to the undersigned as to Texas
Unwired's treatment as an Affiliate even though Texas Unwired has not yet
acquired the Sprint PCS-related assets from Meretel Communications, L.P. and
become a Manager with respect to a Sprint PCS network. The undersigned's
execution of this Acknowledgment, Consent and Agreement shall continue in full
force and effect as if Texas Unwired owned such assets and was a Manager at the
time of the undersigned's execution of this Acknowledgment, Consent and
Agreement. Each of the undersigned agrees to execute one or more additional
agreements that Sprint PCS or the Administrative Agent deems to be necessary or
appropriate to evidence such continuing effect and enforceability.
US UNWIRED, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
UNWIRED TELECOM CORP.
By: ________________________________
Name: ______________________________
Title: _____________________________
29
CAMERON COMMUNICATIONS CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
FORT BEND COMMUNICATIONS CORPORATION
By: ________________________________
Name: ______________________________
Title: _____________________________
XIT LEASING, INC.
By: ________________________________
Name: ______________________________
Title: _____________________________
30
