Exhibit 10.28
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
CREDIT AGREEMENT, dated as of October 2, 1996, among SPRINT
SPECTRUM L.P., a limited partnership organized under the laws of the State of
Delaware (the "Borrower"), NORTHERN TELECOM INC. (the "Vendor"), the several
banks and other financial institutions and entities from time to time parties to
this Agreement (together with the Vendor, the "Lenders") and the Vendor, as
agent for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the Borrower and its Subsidiaries (as defined below)
intend to construct and operate a nationwide wireless telecommunications system,
and the Vendor has entered into the Vendor Procurement Contract (as defined
below) with the Borrower pursuant to which, among other things, the Vendor has
agreed to supply to the Borrower and its Subsidiaries certain of the equipment
needed to complete such system and other goods and services related thereto;
WHEREAS, the Vendor has agreed to make available to the
Borrower a credit facility in the aggregate amount of $1,300,000,000 the
proceeds of which shall be used to finance the acquisition of equipment and
services to be supplied pursuant to the Vendor Procurement Contract in
connection with the construction of such system; and
WHEREAS, the Borrower and the Vendor wish to enter into this
Agreement to establish the credit facility described above;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements set forth below, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have the
following meanings:
"ABR": for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
ABR due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which
is based upon the ABR.
"Additional Collateral": as defined in the Trust Agreement.
"Additional Guarantee": as defined in the Trust Agreement.
"Additional Security Document": as defined in the Trust Agree-
ment.
"Adjusted EBITDA": for any fiscal period, the sum of (a)
EBITDA for such period plus (b) the aggregate amount deducted in
determining Net Income or Net Loss for such period in respect of sales,
marketing and advertising expenses and consumer-related equipment
subsidy expenses.
"Affiliate": as to any Person, any other Person (other than,
in the case of the Borrower and any Restricted Subsidiary, any
Restricted Subsidiary) which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether by contract or
otherwise.
"Agent": the Vendor, as agent for the Lenders under this
Agreement, or any successor thereto appointed pursuant to subsection
8.9 to act as the agent for the Lenders under this Agreement.
"Agent's Account": Account No. 0000000 maintained by the
Agent at the offices of The First National Bank of Chicago located at
Chicago, Illinois, or such other account as may be specified in writing
by the Agent to the Lenders and the Borrower from time to time.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": as defined in Section 1 of Schedule I.
"Annualized Adjusted EBITDA": for the period ending on the
last day of any fiscal quarter, the product of (a) Adjusted EBITDA for
the two consecutive fiscal quarters ending on such last day, multiplied
by (b) two.
"Annualized EBITDA": for the period ending on the last day of
any fiscal quarter, the product of (a) EBITDA for the two consecutive
fiscal quarters ending on such last day, multiplied by (b) two.
"APC": American PCS, L.P., a Delaware limited partnership.
"Asset Sale": any sale, transfer or other disposition or
series of related sales, transfers or other dispositions (excluding any
sale and leaseback transaction) by the Borrower or any Restricted
Subsidiary of any property or assets of the Borrower or such Restricted
Subsidiary (including property subject to any Lien under any Security
Document) to a Person other than the Borrower or any Restricted
Subsidiary; provided that any Asset Swap permitted under subsection
6.6(e) shall be deemed an Asset Sale only to the extent provided for in
said subsection.
"Asset Sale Proceeds Sub-Account": as defined in the Trust
Agreement.
"Asset Swap": any exchange, with any other Person, of assets
owned by the Borrower and/or any Restricted Subsidiary comprising one
or more Systems, for assets comprising one or more other Systems
owned by such other Person.
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": at any time, an amount equal to the
excess, if any, of (a) the aggregate amount of the Commitments of all
the Lenders over (b) the aggregate principal amount of all Loans (excl-
xxxxx amounts constituting interest capitalized pursuant to subsection
2.7(d)) theretofore made hereunder.
"Bank Credit Facility": as defined in the Trust Agreement.
"Benefitted Lender": as defined in subsection 9.7(a).
"Bona Fide Commitment": a binding commitment to provide
financing to the Borrower that is (a) in writing and (b) subject only
to the satisfaction of such conditions as the Borrower believes in good
faith can be reasonably expected to be fulfilled during whichever of
the Phase I Commitment Period or the Phase II Commitment Period as to
which the existence of such commitment is relevant to a determination
of whether or not such Commitment Period shall have commenced.
"Borrower": as defined in the Preamble hereto.
"Borrower's Account": Account No. 00000000 maintained by
the Borrower at the offices of Citibank, N.A. located at New York, New
York, or such other account as may be specified in writing by the
Borrower to the Agent from time to time.
"Borrowing Date": any Business Day specified in a notice pur-
suant to subsection 2.2 as a date on which the Borrower requests the
Lenders to make Loans hereunder.
"Borrowing Notice": an irrevocable notice of borrowing, sub-
stantially in the form of Exhibit E, signed by a Responsible Officer.
"Borrowing Year": any one of the five consecutive twelve-
month periods following the Initial Borrowing Date, each of which shall
end on an anniversary of the Initial Borrowing Date.
"BTA": a Basic Trading Area, as defined in 47 C.F.R. ss.
24.202.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"Capital Contribution Agreement": the Amended and Restated
Capital Contribution Agreement, dated as of October 2, 1996, among the
Parents and the Borrower, as amended, supplemented or otherwise
modified from time to time.
"Capital Expenditures": for any fiscal period, all
expenditures made by the Borrower and its Restricted Subsidiaries
during such period (a) for the purpose of acquiring, constructing,
expanding or improving fixed assets, real property or equipment or (b)
constituting systems and development expenditures related to the
build-out of the Borrower's national wireless telecommunications
network, all as calculated in accordance with GAAP, provided that
expenditures related to the acquisition of Licenses, capitalized
interest and Investments shall not be considered to be Capital
Expenditures.
"Capital Stock": any and all shares, interests, participa-
tions or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase or subscribe for any of the foregoing.
"Cash Advance": as defined in subsection 2.2(a).
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of
one year or less from the date of acquisition and overnight bank
deposits of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any commercial bank
satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days with respect to securities issued or
fully guaranteed or insured by the United States Government, (d)
commercial paper of a domestic issuer rated at least A-1 by S&P or P-1
by Xxxxx'x, (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, or by any political
subdivision or taxing authority of any such state, commonwealth or
territory, the securities of which state, commonwealth, territory,
political subdivision or taxing authority (as the case may be) are
rated at least A by S&P or A2 by Xxxxx'x, (f) securities with
maturities of one year or less from the date of acquisition backed by
standby letters of credit issued by any commercial bank satisfying the
requirements of clause (b) of this definition or (g) shares of open end
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this
definition.
"Change in Control": the occurrence of (a) prior to the time
at which the Borrower has attained Investment Grade Status, a reduction
to less than $500,000,000 of the sum of (i) the amount of Contributed
Capital held, directly or indirectly, by Sprint Corporation and (ii)
the portion of the then Committed Capital for which Sprint Corporation
is obligated or (b) prior to the Public Offering Date, a reduction of
the percentage of the aggregate economic or voting equity ownership of
the Borrower that is owned directly or indirectly by Sprint Corporation
to less than 25%.
"Closing Date": the date on which the conditions precedent
set forth in subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time and the regulations promulgated and the rulings issued
thereunder.
"Collateral": as defined in the Trust Agreement.
"Commission": as defined in subsection 9.15.
"Commitment": as to any Lender, the obligation of such Lender
to make Loans to the Borrower in an aggregate principal amount not to
exceed the product of (a) the Vendor Commitment and (b) the percentage
set forth opposite such Lender's name on Schedule II under the column
captioned "Percentage of Vendor Commitment", as such percentage may be
changed from time to time in accordance with the terms of this
Agreement; and "Commitments" shall mean, collectively, the Commitments
of all of the Lenders.
"Commitment Period": the period from and including the date
hereof to but not including the Termination Date or such earlier date
on which the Commitments shall terminate as provided herein.
"Committed Capital": as to any Parent at any time, the aggre-
gate amount of cash contributions then committed and available to be
made by such Parent or its Affiliates to the Borrower pursuant to the
Capital Contribution Agreement.
"Commonly Controlled Entity": an entity, whether or not in-
corporated, which is treated as a single employer with the Borrower un-
der Section 414(b), (c), (m) or (o) of the Code.
"Communications Act": the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations of
the FCC thereunder, all as amended and as the same may be in effect
from time to time.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, indenture, in-
strument or other undertaking, to which such Person is a party or by
which it or any of its property is bound.
"Contributed Capital": at any time, the aggregate amount
which shall theretofore have been received by the Borrower as a contri-
bution to its capital or as consideration for the issuance of partner-
ship interests in the Borrower; Contributed Capital shall in any event
exclude the proceeds of any Specified Affiliate Debt.
"Corporate Trustee": as defined in the definition of Trust
Agreement.
"Covered Pops": at any time, the aggregate number of Pops
within each geographic area for which facilities owned by the Borrower
and its Restricted Subsidiaries that provide service to such geographic
area (a) in the case of facilities constructed pursuant to the Vendor
Procurement Contract or the Other Vendor Procurement Contract, either
(i) have achieved "substantial completion" pursuant to the terms of the
Vendor Procurement Contract or the Other Vendor Procurement Contract
(as therein provided) or (ii) have not achieved "substantial
completion" pursuant to the terms of the Vendor Procurement Contract as
a result of a failure by the Vendor to perform its obligations
thereunder and (b) in the case of any other facilities, have achieved
at least the equivalent degree of completion.
"Credit Advance": as defined in subsection 2.2(a).
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Direct-Lien Assets": assets of the Borrower or any Restricted
Subsidiary constituting any of the following: accounts, patents,
trademarks, the rights of the Borrower under the Capital Contribution
Agreement, other general intangibles and other types of Personal
Property Assets on which, under applicable law, a consensual Lien can
be perfected by a limited number of Uniform Commercial Code and/or
Federal filings naming the Borrower or such Restricted Subsidiary, as
the case may be, as debtor or by the delivery of a pledged instrument
to the party secured by such Lien.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"EBITDA": for any fiscal period, the Net Income or Net Loss,
as the case may be, for such fiscal period, after restoring thereto
amounts deducted for, without duplication, (a) Interest Expense, (b)
income tax expense, (c) depreciation and amortization and (d) other
non-cash charges, provided, however, that there shall in any event be
excluded from EBITDA any portion thereof attributable to the income of
any Person (other than a Restricted Subsidiary) in which the Borrower
or any Restricted Subsidiary has any ownership interest except to the
extent that any such income has been actually received by the Borrower
or such Restricted Subsidiary in the form of cash dividends or similar
distributions.
"Eligible Assignee": (a) a commercial bank having total assets
in excess of $250,000,000, an insurance company or other similar
financial institution, (b) any other entity which is (or which is
managed by a manager which manages funds which are) primarily engaged
in making, purchasing or otherwise investing in commercial loans or
extending, or investing in extensions of, credit for its own account in
the ordinary course of its business, which has total assets in excess
of $250,000,000 or (c) any Investment Vehicle principally engaged in
investing in commercial loans; provided that in no event may any Person
which is engaged in, or in the case of any Person described in clause
(b) of this definition, which is an Affiliate of any Person engaged in,
the telecommunications service business in the United States be an
Eligible Assignee, and provided, further, that in no event may any
trust or other Person that is the issuer of direct or indirect
beneficial interests in the Loans (an "Investment Vehicle") become a
Lender unless (i) any rights of the holders of the beneficial interests
issued by such Investment Vehicle in respect of votes, consents and
other actions to be taken by the Lenders under or in connection with
this Agreement and the other Loan Documents shall be limited so that
the percentage of such beneficial interests the holders of which are
required to approve any vote, consent or other action proposed to be
made or taken by such Investment Vehicle in its capacity as a Lender in
connection with this Agreement or any other Loan Document shall be the
same as the percentage of the Loans the holders of which are required
pursuant to subsection 9.1 to approve such vote, consent or other
action and (ii) the only financial statements and other reports that
such Investment Vehicle and holders of beneficial interests shall be
entitled to receive from the Borrower shall be the annual audited and
quarterly unaudited financial statements required to be delivered by
the Borrower pursuant to subsection 5.1(a) and (b) and subsection
5.2(a) and (b) and any other documents delivered by the Borrower
pursuant to subsection 5.1 that contain only publicly available
information.
"Environmental Laws": any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of or agreements with any Governmental
Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct
concerning (a) pollution, protection or clean-up of the environment,
(b) any Releases or (c) human health or safety as relating to the
workplace or the environment, including the exposure of employees and
other personnel to Hazardous Substances, in each case, as now or may at
any time hereafter be in effect.
"Environmental Permit": any permit, approval, authorization,
certificate, license, variance, filing or permission required by or
from any Governmental Authority pursuant to any Environmental Law.
"EquipmentCo": Sprint Spectrum Equipment Company, L.P., a
Delaware limited partnership.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurodollar Loans": Loans the rate of interest applicable to
which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate of interest
determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as
of 11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period. In the event that such rate does not appear on
Page 3750 of the Telerate screen (or otherwise on such screen), the
"Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be
agreed upon by the Agent and the Borrower or, in the absence of such
agreement, the "Eurodollar Rate" shall instead be the rate per annum
equal to the average (rounded upwards to the nearest 1/100th of 1%) of
the respective rates notified to the Agent by each of the Reference
Lenders as the rate at which such Reference Lender is offered Dollar
deposits in an amount approximately equal to the amount of the
requested Loan at or about 10:00 A.M., New York City time, two Business
Days prior to the beginning of such Interest Period in the interbank
eurodollar market where the eurodollar and foreign currency and
exchange operations in respect of its Eurodollar Loans are then being
conducted for delivery on the first day of such Interest Period for the
number of days comprised therein.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excluded Assets": at any time, the collective reference to
(a) all assets then subject to a Lien permitted by subsection 6.3(f),
(g), (h), (i), (p), (q) and (r) and (b) any other assets of the
Borrower and its Restricted Subsidiaries (i) which then have a book
value not exceeding $200,000,000 in the aggregate and (ii) none of
which individually then has a book value exceeding $15,000,000.
"Existing Bank Credit Facility": the Credit Agreement, dated
as of October 2, 1996, among the Borrower, the lenders parties thereto
and The Chase Manhattan Bank, as Administrative Agent, as amended,
supplemented or otherwise modified from time to time, or any
refinancing, replacement or refunding thereof.
"FCC": the Federal Communications Commission, or any other
similar or successor agency of the Federal government administering the
Communications Act.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Agent from three federal
funds brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"Funding Percentage": as to any Lender at any time, the per-0
centage which such Lender's then Unused Commitment constitutes of the
then Unused Commitments of all the Lenders.
"GAAP": generally accepted accounting principles in the United
States of America used in connection with the preparation of the
consolidated balance sheet and other financial statements described in
subsection 3.1(a) ("Fixed GAAP") or, when such term is used in
subsections 5.1, 5.3, 5.6 and 6.3, generally accepted accounting
principles in the United States of America in effect from time to time
("Floating GAAP").
"Governmental Authority": any nation or government, any
state, agency or other political subdivision thereof and any entity ex-
ercising executive, legislative, judicial, regulatory (including
self-regulatory) or administrative functions of or pertaining to
government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or having the economic effect of guaranteeing
any Indebtedness or other obligation (the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation
of the guaranteeing person, whether or not contingent, (i) to purchase
any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (A) for the
purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person
may be liable are not stated or determinable, in which case the amount
of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as
determined by the Borrower in good faith.
"Guarantees": as defined in the Trust Agreement.
"Guarantor": any Person delivering a Guarantee pursuant to
the Trust Agreement.
"Hazardous Substances": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regu-
lated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"High Yield Debt": the collective reference to the Borrower's
11% Senior Notes Due 2006 and 12 1/2% Senior Discount Notes Due 2006
and the respective indentures under which such Notes have been issued.
"Holding": Sprint Spectrum Holding Company, L.P., a Delaware
limited partnership and the general partner of the Borrower.
"Incur": when used with respect to any Indebtedness, Guarantee
Obligation or Lien, to create, incur or assume such Indebtedness,
Guarantee Obligation or Lien, whether directly or indirectly, it being
agreed any Indebtedness or Guarantee Obligation of, or any Lien on any
property or assets owned by, any Person which shall become a Restricted
Subsidiary subsequent to the date hereof (whether through the
acquisition thereof, the designation of an Unrestricted Subsidiary as a
Restricted Subsidiary or otherwise) shall be deemed to be Incurred on
the date such Person shall so become a Restricted Subsidiary.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money (including capitalized
interest) or for the deferred purchase price of property or services
(other than trade liabilities incurred in the ordinary course of
business and payable in accordance with customary practices), (b) any
other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person
under Financing Leases, (d) all obligations (absolute or contingent) of
such Person in respect of acceptances issued or created for the account
of such Person and (e) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed
or otherwise become liable for the payment thereof.
"Initial Borrowing Date": the date upon which the initial
Loans are made hereunder.
"Initial Guarantees": as defined in the Trust Agreement.
"Initial Security Documents": as defined in the Trust Agree-
ment.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 3.9.
"Interest Capitalization Period": as defined in subsection
2.7(d).
"Interest Expense": for any fiscal period, the amount of (a)
interest expense of the Borrower and its Restricted Subsidiaries for
such fiscal period determined in accordance with GAAP plus (b) interest
expense in respect of Specified Affiliate Debt for such fiscal period
determined in accordance with GAAP.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, (c) as to any Eurodollar Loan having an Interest
Period longer than three months, each day which is three months, or a
whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period and (d) as to any Eurodollar Loan,
the date of any conversion of such Eurodollar Loan to an ABR Loan in
accordance with subsection 2.6 or repayment or prepayment of such
Eurodollar Loan in accordance with subsection 2.4 or subsection 2.5.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three, six or, subject to
availability, nine or twelve months thereafter, as selected by
the Borrower in its notice of borrowing or notice of
conversion, as the case may be, given with respect thereto;
and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three, six or, subject to
availability, nine or twelve months thereafter, as selected by
the Borrower by irrevocable notice to the Agent not less than
three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that all of the foregoing provisions relating to I-
terest Periods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise extend
beyond the date final payment is due on the Loans shall end on
such date of final payment; and
(iii) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate swap or other
interest rate hedge arrangement to or under which the Borrower is a
party or a beneficiary.
"Interest Rate Agreement Obligations": all obligations of the
Borrower to any financial institution under any one or more Interest
Rate Agreements.
"Investment Grade Status": shall exist at any time when the
actual or implied rating of the Borrower's senior long-term unsecured
debt is at or above Baa3 from Moody's or BBB- from S&P; if either of
Moody's or S&P shall change its system of classifications after the
date of this Agreement, Investment Grade Status shall exist at any time
when the rating of the Borrower's senior long-term unsecured debt is at
or above the new rating which most closely corresponds to the
above-specified level under the previous rating system.
"Investments": as defined in subsection 6.8.
"Investment Vehicle": as defined in the definition of Eligi-
ble Assignee in this subsection 1.1.
"Lenders": as defined in the preamble hereto.
"License": any broadband personal communications services li-
cense issued by the FCC in connection with the operation of a System.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security agreement or security interest of any kind or nature
whatsoever (including, without limitation, any conditional sale or
other title retention agreement and any Financing Lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made (including interest capitalized pursu-
ant to subsection 2.7(d)) pursuant to this Agreement.
"Loan Documents": this Agreement, any Notes, the Guarantees,
the Trust Agreement, the Security Documents and the Capital Contribu-
tion Agreement and any of the guarantees, security documents or other
documents delivered by the Borrower or any of its Subsidiaries with or
pursuant to such agreements from time to time.
"Loan Parties": the Borrower and each Subsidiary of the
Borrower which is a party to a Loan Document.
"Material Adverse Effect": a material adverse effect on (a)
the business, assets, results of operations or financial condition of
the Borrower and its Restricted Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under the Loan
Documents or (c) the validity or enforceability of this Agreement or
any of the other Loan Documents or the rights or remedies of the Agent,
the Trustees or the Lenders thereunder; provided, however, that no
termination, revocation or non-renewal of any License shall constitute
a Material Adverse Effect unless after giving effect thereto the
aggregate number of Owned Pops is less than 120,000,000.
"MinorCo": MinorCo, L.P., a Delaware limited partnership.
"Moody's": Xxxxx'x Investors Service, Inc.
"Mortgaged Property": as defined in subsection 5.9(c).
"MTA": a Major Trading Area as defined in 47 C.F.R. ss.
24.202.
"Multiemployer Plan": a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": of any Asset Sale by any Person, the
aggregate amount of cash and Cash Equivalents received by or on behalf
of such Person in consideration for such Asset Sale or (when and as
received in cash or Cash Equivalents) through payment or disposition of
deferred consideration for such Asset Sale (including by way of
deferred payment of principal pursuant to a note or other security or
installment receivable or purchase price adjustment receivable or
otherwise), after deducting therefrom, as applicable, (a) the amount of
such proceeds required to be applied at the time of such Asset Sale to
repay Indebtedness (other than Secured Obligations) secured by any
asset which is the subject of such Asset Sale, (b) brokerage
commissions and other fees and expenses (including fees and expenses of
legal counsel and investment bankers) payable in connection therewith,
(c) appropriate amounts to be provided by the Borrower or any
Restricted Subsidiary, as the case may be, as a reserve required in
accordance with GAAP against any liabilities associated with such Asset
Sale and retained by the Borrower or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities and liabilities
under any indemnification obligations associated with such Asset Sale
and (d) other out-of-pocket costs incurred in connection therewith; and
adding thereto, as applicable, any reversal of or reduction in any
reserve referred to in clause (c) above.
"Net Income" or "Net Loss": for any fiscal period, the amount
which, in conformity with GAAP, would constitute the net income or net
loss, as the case may be, of the Borrower and its Restricted
Subsidiaries on a consolidated basis for such fiscal period (after
adjustment for minority interests), provided that Net Income or Net
Loss shall exclude extraordinary, unusual or non-recurring gains or
losses.
"New Lending Office": as defined in subsection 2.13(b).
"Non-Excluded Taxes": as defined in subsection 2.13.
"Non-U.S. Lender": as defined in subsection 2.13(a).
"Note": as defined in subsection 2.3(e).
"Notice of Enforcement": as defined in the Trust Agreement.
"Other Vendor": Lucent Technologies Inc.
"Other Vendor Credit Facility": the Credit Agreement, dated as
of October 2, 1996, among the Borrower, the Other Vendor, the several
lenders from time to time parties thereto and the Other Vender, as
agent, as amended, supplemented or otherwise modified from time to
time.
"Other Vendor Procurement Contract": the Procurement and Ser-
vices Contract, dated as of January 31, 1996, between the Borrower
(formerly MajorCo, L.P.) and the Other Vendor, as the same may be
amended, supplemented or otherwise modified from time to time.
"Owned Pops": at any time, the aggregate number of Pops in-
cluded in those MTA's or BTA's for which the Borrower and its Restric-
ed Subsidiaries then own Licenses that are in full force and effect.
"Parents": Sprint Corporation, Tele-Communications, Inc.,
Comcast Corporation and Xxx Communications, Inc.
"Participant": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Percentage": as to any Lender at any time, the percentage
which the then outstanding principal amount of such Lender's Loans
(other than amounts constituting interest capitalized pursuant to
subsection 2.7(d)) and Unused Commitment, if any, then constitutes of
the then outstanding principal amount of the Loans of all Lenders
(other than amounts constituting interest capitalized pursuant to
subsection 2.7(d)) and Unused Commitments of all Lenders.
"Permanent Reduction": any voluntary reduction by the Borrower
of revolving credit commitments under a Bank Credit Facility to an
aggregate amount which is less than the average daily outstanding
principal amount of revolving credit loans under such Bank Credit
Facility during the six month period preceding the date of such
reduction.
"Permitted Refinancing": (a) a refinancing, replacement or
refunding of the Other Vendor Credit Facility in connection with which
the Lenders are given the option, to be effected in accordance with the
procedures set forth in subsection 2.16, to have their Loans repaid pro
rata with the lenders under the Other Vendor Credit Facility on
substantially equivalent terms and conditions and (b) any refinancing,
replacement or refunding of a Bank Credit Facility.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Personal Property Assets": all personal property of the
Borrower and its Restricted Subsidiaries (other than the Licenses).
"Phase I Commitment Period": as defined in Section 1 of
Schedule I.
"Phase II Commitment Period": as defined in Section 1 of
Schedule I.
"Plan": at a particular time, any employee benefit plan which
is covered by Title IV of ERISA and in respect of which the Borrower or
a Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA or may have or incur any
liability.
"Pops": as of any date, with respect to any BTA or MTA, the
population of such BTA or MTA as such number is published in the then
most recently issued Xxxxxxxx Marketing Service Population Guide.
"Prepayment Acceptance Amount": with respect to each Lender
receiving a Prepayment Offer Notice, the maximum principal amount of
the Loans of such Lender subject to such Prepayment Offer Notice that
such Lender wishes to be subject to prepayment, as indicated in the
applicable Prepayment Offer Response Notice of such Lender.
"Prepayment Amount": with respect to any Specified Prepayment
to be made on any date, the amount required to be applied toward pre-
payment of the Loans on such date in accordance with the provisions of
subsection 2.16 and the definition of the term Pro Rata Payment Offer.
"Prepayment Offer Notice": a written notice (a) offering to
prepay the Loans on the Specified Prepayment Date designated therein in
an aggregate amount equal to the Prepayment Amount, (b) requesting each
Lender to respond to such offer by delivering to the Agent and the
Borrower a Prepayment Offer Response Notice no later than four Business
Days prior to such Specified Prepayment Date, and (c) informing each
such Lender that the failure by such Lender to deliver a Prepayment
Offer Response Notice on or before the fourth Business Day prior to the
Specified Prepayment Date shall be deemed to be the acceptance of the
full amount of such offer by such Lender.
"Prepayment Offer Response Notice": a written notice to the
Agent and the Borrower in response to a Prepayment Offer Notice,
pursuant to which the Lender delivering such notice states whether such
Lender accepts or rejects the Borrower's offer to prepay Loans
contained in such Prepayment Offer Notice and, if such offer is
accepted, states the maximum principal amount of such Lender's Loan
which such Lender wishes to be subject to prepayment.
"Prepayment Pro Rata Amount": with respect to each Lender in
connection with any Specified Prepayment, the percentage of the associ-
ated Prepayment Amount which such Lender's then outstanding Loans con-
stitutes of all then outstanding Loans.
"Prepayment Share": with respect to each Lender in connection
with any Specified Prepayment, the lesser of its Prepayment Acceptance
Amount and its Prepayment Pro Rata Amount.
"Prime Rate": the rate of interest per annum publicly
announced from time to time by Bank of America National Trust and
Savings Association as its prime rate in effect at its principal office
in New York City (the Prime Rate not being intended to be the lowest
rate of interest charged by Bank of America National Trust and Savings
Association in connection with extensions of credit to debtors).
"Pro Forma Compliance": shall exist at any time when (a) the
Borrower shall be in pro forma compliance with the covenants set forth
in subsections 6.1(a) through (d) (computed on the basis of Total Debt
and Total Capitalization then outstanding and Annualized Adjusted
EBITDA and Annualized EBITDA as projected in good faith by the Borrower
for the period ending at the end of the then current fiscal quarter)
and (b) no Default or Event of Default shall be then in existence.
"Pro Rata Payment Offer": an offer made by the Borrower, to
each holder of Secured Obligations as to which such an offer is
required, pursuant to the Secured Instrument under which such Secured
Obligations are outstanding, to be made, to have such holder's pro rata
share (based on (a) in the case of Secured Obligations referred to in
clause (ii), the then outstanding principal amounts of such Secured
Obligations and amounts of unused commitments to extend credit
constituting Secured Obligations and (b) in the case of Secured
Obligations referred to in clause (i), the then outstanding principal
amounts of such Secured Obligations) of a specified amount (i) in the
case of Secured Obligations other than those referred to in clause
(ii), applied to prepay such Secured Obligations and (ii) in the case
of Secured Obligations under a committed revolving credit facility, to
reduce the commitments under such facility and to prepay any Secured
Obligations outstanding under such facility by the amount such Secured
Obligations exceed such commitments as so reduced.
"Pro Rata Prepayment/Commitment Reduction": any application of
Net Cash Proceeds (a) in accordance with subsection 2.5, to prepay the
Loans and (b) to the extent required by and in accordance with any
mandatory prepayment and/or commitment reduction provisions of, or to
the extent that the Borrower determines to do so under any voluntary
prepayment and/or commitment reduction provisions of, any other Secured
Obligations to prepay the loans and/or reduce the commitments to lend
thereunder, with the portion of such Net Cash Proceeds to be applied to
prepay the Loans being at least equal to a pro rata share thereof
determined on the basis of the respective amounts of the then
outstanding Secured Obligations to which such Net Cash Proceeds will be
applied and, unless the maturity of the Secured Obligations shall have
been accelerated, unused commitments to lend then in effect under the
Secured Instruments relating to such Secured Obligations.
"Public Offering Date": the date on which there shall be
completed an underwritten public offering of shares of Capital Stock of
the Borrower (or of any direct or indirect partner or shareholder of
the Borrower (other than any Parent) having the economic effect of
transferring to the public equity interests in the Borrower) pursuant
to a registration statement filed with, and declared effective by, the
Securities and Exchange Commission (or its successor) in accordance
with the Securities Act.
"Real Estate Assets": all interests in real property of the
Borrower and its Restricted Subsidiaries other than Mortgaged Proper-
ties.
"RealtyCo": Sprint Spectrum Realty Company, L.P., a Delaware
limited partnership.
"Reference Lenders": Bank of America National Trust and
Savings Association, The Chase Manhattan Bank and The Bank of New York
or such other banks as may be agreed by the Borrower and the Agent from
time to time.
"Register": as defined in subsection 9.6(d).
"Release": any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, dispos-
ing, depositing, dispersing, emanating or migrating of any Hazardous
Substances in, into, onto or through the environment.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA or regulations thereunder, other than those events as
to which the thirty day notice period is waived under the regulations
adopted by the PBGC.
"Requirement of Law": as to any Person, the partnership
agreement, the certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court
or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any
of its property is subject.
"Requisite Accelerating Creditors": at any time, (a) with re-
spect to any Event of Default specified in Section 7(a) through (c),
the then Requisite Lenders, and (b) with respect to any other Event of
Default, the then Requisite Aggregate Lenders.
"Requisite Aggregate Lenders": at any time, (a) until the
first date upon which the Vendor holds Loans and Unused Commitment in
an aggregate amount less than 50% of the then outstanding Loans and
Unused Commitments and the Other Vendor holds loans and commitment
under the Other Vendor Credit Facility in an aggregate amount less than
50% of the then outstanding loans and commitments thereunder, Lenders
holding a majority of the then outstanding Loans and Unused Commitments
and lenders under the Other Vendor Credit Facility holding a majority
of the then outstanding loans and commitments under the Other Vendor
Credit Facility and (b) thereafter, Lenders and/or lenders under the
Other Vendor Credit Facility holding Loans and Unused Commitments and
loans and commitment under the Other Vendor Credit Facility in an
aggregate amount equal to at least a majority of the then aggregate
outstanding amount of loans and commitments under both Vendor Credit
Facilities.
"Requisite Lenders": at any time, Lenders the Percentages of
which aggregate more than 50%.
"Responsible Officer": any of the president, chief financial
officer, treasurer, assistant treasurer, director - corporate finance
or controller of the Borrower.
"Restricted Payments": as defined in subsection 6.7.
"Restricted Subsidiary": at any time, any Subsidiary of the
Borrower that is not an Unrestricted Subsidiary and including the
Special Purpose Subsidiaries.
"S&P": Standard and Poor's Ratings Services.
"Secured Instruments": as defined in the Trust Agreement.
"Secured Obligations": as defined in the Trust Agreement.
"Security Documents": as defined in the Trust Agreement.
"Securities Act": as defined in subsection 9.15.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Special Payment Condition": shall be satisfied when, after
giving effect to any Restricted Payment described in subsection 6.7(a)
or (c) or any Investment described in subsection 6.8(c) or (d), the
ratio of the then outstanding Total Debt to Annualized EBITDA for the
period ended on the last day of the then most recently ended fiscal
quarter for which financial statements shall have been delivered to the
Lenders pursuant to subsection 5.1 is not greater than 5.0 to 1 and the
ratio of Annualized EBITDA for the period ended on such last day to
Interest Expense for the period of four consecutive fiscal quarters
ended on such last day is not less than 2.5 to 1.
"Special Purpose Subsidiary": each of EquipmentCo, RealtyCo
and WirelessCo.
"Specified Affiliate Debt": Indebtedness of an Affiliate of
the Borrower incurred in an arm's length transaction (other than
Indebtedness used to fund capital contributions required to be made by
such Affiliate (or an Affiliate thereof) under the Capital Contribution
Agreement or the partnership agreement of Holding) all of the proceeds
of which shall have been contributed to the capital of the Borrower or
used to purchase Capital Stock of the Borrower and which shall have
been designated in a written notice from the Borrower to the Agent as
Specified Affiliate Debt.
"Specified Loan": as defined in subsection 2.7(d).
"Specified Prepayment": any prepayment to which the provi-
sions of subsection 2.16 are applicable.
"Specified Prepayment Date": as defined in subsection 2.16.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"System": as to any Person, assets constituting a radio comm-
unications system authorized under the rules for wireless communica-
tions services (including the licenses, network, marketing, distribu-
tion, sales, customer interface and operations functions relating
thereto) owned and operated by such Person.
"Tax Credit": as defined in subsection 2.13(d).
"Termination Date": the earliest of (a) the date the Avail-
able Commitment is reduced to zero; (b) the date the Commitments of all
Lenders are terminated as provided in this Agreement; (c) December 31,
2000; and (d) March 31, 1997 if the Initial Borrowing Date has not
occurred prior to such date.
"Total Capitalization": at any date, the sum of (a) Total Debt
outstanding on such date plus (b) Contributed Capital on such date plus
(c) Committed Capital on such date minus (d) the amount of Restricted
Payments made by the Borrower or any Restricted Subsidiary (other than
Restricted Payments which are permitted to be made pursuant to
subsection 6.7(a) or (b)), directly or indirectly to any Person other
than the Borrower or any Restricted Subsidiary through such date.
"Total Debt": at any time, the sum of (a) the aggregate amount
of consolidated Indebtedness of the Borrower and its Restricted
Subsidiaries then outstanding (including capitalized and accreted
interest) determined in accordance with GAAP plus (b) the aggregate
amount of Guarantee Obligations of the Borrower and its Restricted
Subsidiaries then outstanding in respect of Indebtedness of Persons
other than the Borrower and its Restricted Subsidiaries plus (c) the
aggregate amount of Specified Affiliate Debt then outstanding
(including capitalized and accreted interest) minus (d) the aggregate
amount of cash and Cash Equivalents then owned by the Borrower and its
Restricted Subsidiaries.
"Trademark License Agreement": the Amended and Restated
Sprint Trademark License Agreement, dated as of January 31, 1996, by
and between Sprint Communications Company, L.P. and the Borrower
(formerly MajorCo, L.P.), as the same may have been amended, supple-
mented or otherwise modified prior to the date of this Agreement.
"Transferee": as defined in subsection 9.6(f).
"Trust Agreement": the Trust Agreement, dated as of October 2,
1996, among the Borrower, First Union National Bank, a national banking
association, as corporate trustee (the "Corporate Trustee"), and
Xxxxxxx X. Xxxxxx, as individual trustee (together with the Corporate
Trustee, the "Trustees"), as amended, supplemented or otherwise
modified from time to time.
"Trustees": as defined in the definition of Trust Agreement.
"Type": as to any Loan, its nature as an ABR Loan or a Euro-
dollar Loan.
"Unused Commitment": at any time as to any Lender, an amount
equal to the excess, if any, of (a) the amount of the Commitment of
such Lender over (b) the aggregate principal amount of Loans made by
such Lender, including any Loans made by the Vendor on such Lender's
behalf pursuant to subsection 2.1(b), and in each case excluding
amounts constituting interest capitalized pursuant to subsection
2.7(d).
"Unrestricted Subsidiary": APC and any other Subsidiary of the
Borrower (other than any Special Purpose Subsidiary) that the Borrower
designates as an Unrestricted Subsidiary in accordance with subsection
6.8(c) or (d), provided, however, that the Borrower may, so long as no
Default or Event of Default would result therefrom, cause any
Unrestricted Subsidiary to become a Restricted Subsidiary by so
notifying the Agent in a written instrument executed by a Responsible
Officer.
"Vendor": as defined in the Preamble hereto.
"Vendor Commitment": as defined in Schedule I.
"Vendor Credit Facilities": the collective reference to this
Agreement and the Other Vendor Credit Facility.
"Vendor Procurement Contract": the Procurement and Services
Contract, dated as of January 31, 1996, between the Borrower (formerly
MajorCo, L.P.) and the Vendor, as amended, supplemented or otherwise
modified from time to time.
"Vendor's Account": Account No. 0000000 maintained by the
Vendor at the offices of The First National Bank of Chicago located at
Chicago, Illinois, or such other account as may be specified in
writing by the Vendor to the Borrower and the Agent from time to time.
"Weighted Average Interest Amount": as defined in subsection
2.2(e).
"Wholly Owned": any Subsidiary of the Borrower or any
Restricted Subsidiary shall be deemed to be Wholly Owned if at least
99% of the voting and economic equity interest in such Subsidiary is
owned by the Borrower or such Restricted Subsidiary and the remainder
of the voting and economic equity interest in such Subsidiary is owned
by MinorCo.
"WirelessCo": WirelessCo, L.P., a Delaware limited partner-
ship.
"Wireless Service": the provision of broadband personal comm-
unications services in one or more Systems.
"Wireless Subscribers": at any time, all customers then re-
ceiving Wireless Services from the Borrower or any of its Restricted
Subsidiaries.
"Year": any one of the consecutive twelve-month periods
following the Initial Borrowing Date each of which shall end on an
anniversary of the Initial Borrowing Date.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
all terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein, and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the Borrower and
its Subsidiaries not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the respective
meanings given to them under Fixed GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
subsection, Schedule and Exhibit references are to this Agreement unless
otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
(e) Terms defined in Article 9 of the Uniform Commercial Code
of the State of New York and not defined herein shall have the respective
meanings given to them in such Article 9.
(f) The words "include", "includes" and "including" when used
herein shall be deemed to be followed by the phrase "without limitation".
(g) Unless otherwise expressly provided herein, any reference
in this Agreement to any Loan Document shall mean such document as amended,
restated, supplemented or otherwise modified from time to time.
(h) Any reference herein to a fiscal year or a fiscal quarter
shall be deemed a reference to such fiscal year or such fiscal quarter of the
Borrower.
1.3 Schedules. The terms and conditions of the Schedules shall
be deemed to be a part of this Agreement and incorporated herein by reference as
fully as if they were set forth in full herein.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments. (a) Subject to the terms and conditions
hereof, each Lender agrees, severally and not jointly, to make Loans to the
Borrower pursuant to this subsection from time to time during the Commitment
Period in an aggregate principal amount (excluding amounts constituting interest
capitalized pursuant to subsection 2.7(d)) not to exceed the amount of such
Lender's Commitment. The Loans may from time to time be (a) Eurodollar Loans,
(b) ABR Loans or (c) a combination thereof, as determined by the Borrower and
notified to the Agent in accordance with subsections 2.2 and 2.6.
(b) If on any Borrowing Date any Lender (other than the
Vendor) defaults in its obligation to make Loans to the Borrower, the Vendor
shall be unconditionally obligated to make such Loans on such Borrowing Date. To
the extent that the Vendor makes Loans on behalf of a defaulting Lender, the
Vendor shall be subrogated to the rights of the Borrower against such defaulting
Lender with respect to such Loans. If a defaulting Lender purchases from the
Vendor any Loans made by the Vendor on behalf of such defaulting Lender, then
from and after that date the defaulting Lender shall be deemed to be the Lender
with respect to such Loans for all purposes under this Agreement.
2.2 Borrowing Procedure. (a) The Borrower may borrow under the
Commitment during the Commitment Period on any Business Day, provided that no
more than one borrowing may be made hereunder during any of the successive
one-month periods following the Initial Borrowing Date (other than the first
such one-month period, during which up to two borrowings may be made hereunder).
Borrowings hereunder on any Borrowing Date may be made (i) in cash in accordance
with the provisions of subsection 2.2(b) (a "Cash Advance") and/or (ii) by means
of a credit against amounts due to the Vendor under the Vendor Procurement
Contract in accordance with the provisions of subsection 2.2(c) (a "Credit
Advance"). The Borrower shall deliver to the Agent a Borrowing Notice which must
be received by the Agent prior to 1:00 P.M., New York City time, (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
Loans requested to be made on any Borrowing Date are to be initially Eurodollar
Loans, or (b) one Business Day prior to the requested Borrowing Date, otherwise,
and which must specify (i) the requested Borrowing Date, (ii) the amount to be
borrowed, (iii) whether the borrowing is to be by means of a Cash Advance, a
Credit Advance or a combination thereof and, if a combination thereof, the
respective amounts of each, (iv) whether the borrowing is to be of Eurodollar
Loans, ABR Loans or a combination thereof and, if a combination thereof, the
respective amounts of each and (v) if the borrowing is to be entirely or partly
of Eurodollar Loans, the amounts of such Type of Loan and the respective lengths
of the initial Interest Periods therefor.
(b) If any Borrowing Notice indicates that a Cash Advance is
to be made on the Borrowing Date specified therein to finance amounts
theretofore paid by the Borrower (other than with the proceeds of Credit
Advances) under invoices submitted to the Borrower by the Vendor pursuant to the
Vendor Procurement Contract, such Borrowing Notice shall identify such invoices
and the amount theretofore paid thereunder (which shall equal the amount of such
Cash Advance), and, in accordance with subsection 2.2(d), each Lender will make
the amount of its respective Funding Percentage of such Cash Advance available
to the Agent, which shall then make such amounts available to the Borrower at
the Borrower's Account prior to 11:00 A.M., New York City time, on such
Borrowing Date in funds immediately available to the Borrower.
(c) If any Borrowing Notice requests that a Credit Advance be
made on the Borrowing Date specified therein to finance amounts then due under
invoices submitted to the Borrower by the Vendor pursuant to the Vendor
Procurement Contract, such Borrowing Notice shall identify such invoices and the
amounts being paid thereunder pursuant to such Credit Advance, and, in
accordance with subsection 2.2(d), each Lender (other than the Vendor) will make
the amount of its respective Funding Percentage of such Credit Advance available
to the Agent at the Agent's Account, and the Agent shall then make the aggregate
of such amounts available to the Vendor at the Vendor's Account and the Vendor
shall credit the entire amount of such Credit Advance against the amounts due to
it by the Borrower under such invoices.
(d) No later than 11:00 a.m., New York City time, on the
Borrowing Date of any Loan, each of the Lenders (in the case of a Credit
Advance, other than the Vendor) will make available to the Agent, at the Agent's
Account, in immediately available funds, the amount of such Lender's Funding
Percentage of the amount of the requested Loan. Upon receipt from each Lender of
such amount, and satisfaction by the Borrower of all conditions to making the
requested Loan, the Agent will make available to, in the case of a Cash Advance,
the Borrower, and in the case of a Credit Advance, the Vendor, the aggregate
amount of such Loan made available to the Agent by the Lenders, it being
understood that the Vendor shall have no obligation to make available to the
Agent any funds for any Loan in respect of a Credit Advance. In the case of a
Credit Advance, the Vendor will credit the amount of (i) the Vendor's Funding
Percentage of such Credit Advance plus (ii) the aggregate required to be amount
made available to the Agent by the Lenders on such Borrowing Date (whether or
not any Lender shall have defaulted in its obligation to make available to the
Agent any portion of its Funding Percentage of the requested Loan on such
Borrowing Date) against the amounts due it from the Borrower under the invoices
identified in the Borrowing Notice requesting such Credit Advance. The failure
or refusal of any Lender to make available to the Agent at the aforesaid time
and place on any Borrowing Date the amount of its Funding Percentage of the
requested Loans shall not relieve any other Lender from its several obligation
hereunder to make available to the Agent the amount of such other Lender's
Funding Percentage of any requested Loans.
(e) The Agent may, unless notified to the contrary by any
Lender prior to a Borrowing Date, assume that such Lender has made available to
the Agent on such Borrowing Date the amount of such Lender's Funding Percentage
of the Loans to be made on such Borrowing Date, and the Agent may (but it shall
not be required to), in reliance upon such assumption, make available to the
Vendor or the Borrower, as the case may be, a corresponding amount. If any
Lender makes available to the Agent such amount on a date after such Borrowing
Date, such Lender shall pay to the Agent on demand an amount (the "Weighted
Average Interest Amount") equal to the product of (i) the average computed for a
period referred to in clause (iii) below, of the weighted average interest rate
paid by the Agent for funds acquired by the Agent during each day included in
such period, times (ii) the amount of such Lender's Funding Percentage of such
Loans, times (iii) a fraction, the numerator of which is the number of days that
elapse from and including such Borrowing Date to the date on which the amount of
such Lender's Funding Percentage of such Loans shall become immediately
available to the Agent, and the denominator of which is 365. A statement of the
Agent submitted to such Lender with respect to any amounts owing under this
subsection shall be prima facie evidence of the amount owing to the Agent by
such Lender. If the Agent has made available to the Vendor or the Borrower, as
the case may be, the amount of a Lender's Funding Percentage of such Loans and
such Lender has failed to make available to the Agent such amount within three
Business Days following such Borrowing Date, the Agent shall be entitled to
recover such amount, plus the Weighted Average Interest Amount, from the Vendor
on demand as provided in subsection 2.2(b).
2.3 Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Agent for the account of each
Lender the principal amount of the Loans of such Lender made during any
Borrowing Year in twenty consecutive quarterly installments, commencing on the
date which is thirty-nine months after the last day of such Borrowing Year and
ending on the date which is eight years after such last day, in an aggregate
amount for each Year set forth below equal to the percentage set forth opposite
such Year multiplied by the aggregate principal amount of the Loans made by such
Lender during such Borrowing Year (with the quarterly installments during each
such Year being equal in amount):
Year Percentage
4 10%
5 15
6 20
7 25
8 30
The Borrower hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof until
payment in full thereof at the rates per annum, and on the dates, set forth in
subsection 2.7.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Agent shall maintain the Register pursuant to
subsection 9.6(e), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder (including the amount of any capitalized interest under subsection
2.7(d)) and (iii) both the amount of any sum received by the Agent hereunder
from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to subsection 2.3(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans of such Lender in
accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the Agent by
any Lender, the Borrower will execute and deliver to such Lender a promissory
note of the Borrower dated the Closing Date evidencing the Loans of such Lender,
substantially in the form of Exhibit A with appropriate insertions as to date
and principal amount (each, a "Note"). Thereafter, the Loans evidenced by any
such Note and interest thereon shall at all times (including after assignment
pursuant to subsection 9.6) be represented by one or more promissory notes in
such form payable to the order of the payee named therein and its registered
assigns.
2.4 Optional Prepayments. The Borrower may prepay the Loans,
in whole or in part, without premium or penalty, upon giving irrevocable notice
to the Agent (which notice must be received by the Agent prior to 1:00 P.M., New
York City time, (a) three Business Days prior to the date of prepayment, if all
or any part of the Loans to be prepaid are Eurodollar Loans, or (b) one Business
Day prior to the date of prepayment, otherwise), specifying the date and amount
of prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. Upon receipt of any such notice the Agent shall promptly notify each
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 2.14, accrued interest to such date on
the amount prepaid. Partial prepayments of the Loans shall be applied to the
then remaining installments of principal thereof pro rata according to the
respective amounts thereof. Amounts prepaid on account of the Loans may not be
reborrowed. Partial prepayments pursuant to this subsection shall be in an
aggregate principal amount of at least $10,000,000 and increments of $1,000,000
in excess thereof.
2.5 Mandatory Prepayments. (a) The Borrower shall prepay the Loans with the
Net Cash Proceeds of Asset Sales to the extent required by subsections
6.6(c) and (d).
(b) If at any time the Borrower shall make a voluntary
prepayment of loans under the Other Vendor Credit Facility or shall voluntarily
make a prepayment of term loans, or a Permanent Reduction, under the Existing
Bank Credit Facility and such prepayment or Permanent Reduction is not made in
connection with a Permitted Refinancing, the Borrower shall, subject to the
provisions of subsection 2.16, prepay the Loans in an amount equal to the
product of (i) the then outstanding principal amount of the Loans multiplied by
(ii) a fraction (A) the numerator of which is the amount of the loans so
voluntarily prepaid under the Other Vendor Credit Facility or the Existing Bank
Credit Facility or the amount of the Permanent Reduction, as the case may be,
and (B) the denominator of which is the aggregate then outstanding principal
amount of loans under the Other Vendor Credit Facility or the Existing Bank
Credit Facility (in the case of prepayment of term loans) or the aggregate
amount of revolving credit commitments under the Existing Bank Credit Facility,
(in the case of a Permanent Reduction) as the case may be, in any case, before
giving effect to any such voluntary prepayment of loans or Permanent Reduction.
(c) Partial prepayments of the Loans pursuant to this
subsection shall be applied to the then remaining installments of principal
thereof pro rata according to the respective amounts thereof. Each such
prepayment shall be made together with any amounts payable pursuant to
subsection 2.14 and accrued interest to such date on the amount prepaid. Amounts
prepaid on account of the Loans may not be reborrowed.
2.6 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Agent at least one Business Days' prior irrevocable notice of such election,
provided that if any such conversion of Eurodollar Loans is made on a day which
is not the last day of an Interest Period with respect thereto such conversion
shall be accompanied by payment of any amounts payable pursuant to subsection
2.14. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Agent at least three Business Days' prior
irrevocable notice of such election. Any such notice of conversion to Eurodollar
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Agent shall promptly
notify each Lender thereof. Accrued interest on a Eurodollar Loan (or portion
thereof) being converted to an ABR Loan shall be paid by the Borrower at the
time of conversion. All or any part of outstanding Eurodollar Loans and ABR
Loans may be converted as provided herein, provided that no Loan may be
converted into a Eurodollar Loan after the date that is one month prior to the
scheduled payment date of the final installment of principal of such Loan or at
any time when any principal or interest in respect of such Loan is overdue.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving notice to the Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, provided that
no Eurodollar Loan may be continued as such after the date that is one month
prior to the scheduled payment date of the final installment of principal of the
Loans or at any time when any principal or interest in respect of such Loan is
overdue and provided, further, that if the Borrower shall fail to give such
notice or if such continuation is not permitted pursuant to the immediately
preceding proviso such Loans shall be automatically converted to ABR Loans on
the last day of such then expiring Interest Period.
(c) Each conversion or continuation shall be made pro rata
among the Lenders in accordance with their respective principal amounts of the
Loans comprising the converted or continued Loans.
(d) All borrowings and conversions shall be in such amounts so
that, after giving effect thereto, not more than twenty separate Eurodollar
Loans of any Lender being outstanding hereunder at any one time. For purposes of
the foregoing, Loans having different Interest Periods, regardless of whether
they commence on the same date, shall be considered separate Loans.
2.7 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest during each Interest Period with respect thereto, payable in
arrears on each Interest Payment Date, at a rate per annum equal to the
Eurodollar Rate determined for such Interest Period plus the Applicable Margin.
(b) Each ABR Loan shall bear interest for each day, payable in
arrears on each Interest Payment Date, at a rate per annum equal to the ABR in
effect on such day plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon or (iii) any other amount payable hereunder shall
not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue principal, interest or other amount shall bear interest
at a rate per annum which is (A) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
subsection plus 2% or (B) in the case of any such overdue interest or other
amount, the rate described in paragraph (b) of this subsection plus 2%, in each
case from the date of such non-payment until such overdue principal, interest or
other amount is paid in full (as well after as before judgment).
(d) Anything in this Agreement to the contrary
notwithstanding, and unless the Borrower shall notify the Agent that this
paragraph (d) shall not be applicable to any interest accruing with respect to
Loans, (i) (A) the interest on outstanding Loans (each, a "Specified Loan") made
during any Borrowing Year shall accrue during the period from the day each such
Specified Loan is made until the first anniversary of the last day of such
Borrowing Year (the "Interest Capitalization Period" for such Borrowing Year)
and (B) such accrued interest shall not be required to be paid in cash on any
Interest Payment Date occurring during the Interest Capitalization Period for
such Borrowing Year and (ii) on the last day of each successive three-month
period following the first day of such Borrowing Year, such accrued interest
shall be capitalized and added to the principal amount of the Specified Loan on
which such capitalized interest shall have accrued. All interest accruing during
any Interest Capitalization Period that is not paid during such Interest
Capitalization Period and not capitalized pursuant to this paragraph (d) shall
be payable in full in cash on the first Interest Payment Date occurring after
the last day of such Interest Capitalization Period.
2.8 Computation of Interest and Fees. (a) Commitment fees and,
whenever it is calculated on the basis of the ABR, interest shall be calculated
on the basis of a 365- (or 366-, as the case may be) day year for the actual
number of days elapsed; otherwise, interest shall be calculated on the basis of
a 360-day year for the actual number of days elapsed. The Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR shall become effective as of the opening of business on the
day on which such change becomes effective, and the Agent shall as soon as
practicable notify the Borrower and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Agent
pursuant to any provision of this Agreement shall be prima facie evidence of the
accuracy of such determination. The Agent shall, at the request of the Borrower
or any Lender, deliver to the Borrower or such Lender a statement showing the
quotations used by the Agent in determining any interest rate based upon
quotations from Reference Lenders pursuant to subsection 2.7(a).
2.9 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period (a) the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period or (b)
the Agent shall have received notice from the Requisite Lenders that the
Eurodollar Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period, the Agent shall give telecopy or telephonic notice thereof
to the Borrower and the Lenders as soon as practicable thereafter. If such
notice is given, (i) any Eurodollar Loans requested to be made on the first day
of such Interest Period shall be made as ABR Loans, (ii) any Loans that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as ABR Loans and (iii) any outstanding Eurodollar Loans shall
be converted, on the first day of such Interest Period, to ABR Loans. So long as
such notice shall not have been withdrawn, the Agent shall use reasonable
efforts to determine whether or not the circumstances which shall have caused
such notice to be given continue to exist, and, if the Agent shall at any time
determine that such circumstances no longer exist, it shall, as soon as
practicable thereafter, notify the Lenders and the Borrower that the Agent is
withdrawing such notice. Until such notice has been withdrawn by the Agent, no
further Eurodollar Loans shall be made or continued as such, nor shall the
Borrower have the right to convert Loans to Eurodollar Loans. Each determination
by the Agent hereunder shall be conclusive absent manifest error.
2.10 Pro Rata Treatment and Payments. Except as provided in
subsection 2.11, 2.15(b) or 2.16, each payment (including each prepayment) by
the Borrower on account of principal of and interest on the Loans shall be made
pro rata according to the respective outstanding principal amounts of the Loans
then held by the Lenders. All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest or otherwise,
shall be made without set off or counterclaim (including, without limitation,
against any amounts claimed from or owing by the Vendor under the Vendor
Procurement Contract) and shall be made prior to 12:00 Noon, New York City time,
on the due date thereof to the Agent, for the account of the Lenders, at the
Agent's Account, in Dollars and in immediately available funds. The Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
2.11 Illegality. Notwithstanding any other provision herein,
if the adoption after the date hereof of or any change after the date hereof in
any Requirement of Law or in the interpretation or application thereof shall
make it unlawful or impossible for any Lender to make, maintain or fund
Eurodollar Loans as contemplated by this Agreement, then by written notice by
such Lender to the Borrower and to the Agent, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such and
convert ABR Loans to Eurodollar Loans shall forthwith be cancelled and (b) such
Lender's Loans then outstanding as Eurodollar Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law. If any such conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.14.
2.12 Requirements of Law. (a) If the adoption after the date
hereof of or any change after the date hereof in any Requirement of Law or in
the interpretation or application thereof by any Governmental Authority or
compliance by any Lender with any applicable requirement, request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) shall or will subject any Lender to any tax or other
payment of any kind whatsoever with respect to, or any amount payable
under, this Agreement or any Eurodollar Loan or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 2.13 and taxes imposed on the
net income of such Lender); or
(ii) shall or will impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate; or
(iii) shall or will impose on any Lender or the Agent any
other conditions or requirements affecting this Agreement or Eurodollar
Loans held by such Lender;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) If any Lender becomes entitled to claim any additional
amounts pursuant to this subsection, it shall promptly notify the Borrower
(through the Agent) of the event by reason of which it has become so entitled,
provided, however, that in no event shall such Lender be entitled to claim any
additional amount pursuant to this subsection with respect to any period that is
more than three months prior to the date upon which it shall give such notice. A
certificate as to any additional amounts payable pursuant to this subsection,
accompanied by reasonably detailed information reasonably required with respect
to the method of calculating such additional amounts, submitted by such Lender
to the Borrower through the Agent shall be prima facie evidence of the accuracy
of the information set forth therein. The agreements in this subsection shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.13 Taxes. (a) All payments made by the Borrower under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding taxes imposed on the Agent or any Lender (or
Transferee) as a result of a present or former connection between the Agent or
such Lender (or Transferee) and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from the Agent or such
Lender (or Transferee) having executed, delivered or performed to its
obligations or received a payment under, or enforced, this Agreement or any Note
or any other Loan Document). If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Agent or any Lender (or
Transferee) hereunder or under any Note, (i) the Borrower will pay such
Non-Excluded Taxes to the relevant Governmental Authority or political
subdivision imposing such tax and (ii) the amounts so payable to the Agent or
such Lender (or Transferee) shall be increased to the extent necessary to yield
to the Agent or such Lender (or Transferee) (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement, provided, however, that the Borrower
shall not be required to increase any such amounts payable to any Lender that is
not organized under the laws of the United States of America or a state thereof
(a "Non-U.S. Lender") if such Lender fails to comply with the requirements of
paragraph (b) or (c) of this subsection. Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Agent for its own account or for the account of such Lender (or
Transferee), as the case may be, a certified copy of an original official
receipt received by the Borrower showing payment thereof. If the Borrower fails
to pay any Non-Excluded Taxes when due to the appropriate taxing authority or
fails to remit to the Agent the required receipts or other required documentary
evidence, the Borrower shall indemnify the Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the Agent or
any Lender (or Transferee) as a result of any such failure. The Borrower shall
indemnify each Lender (or Transferee) and the Agent for the amount of
Non-Excluded Taxes paid by such Lender (or Transferee) or the Agent, as the case
may be, and any penalties, interest and expenses arising therefrom or with
respect thereto. The agreements in this subsection shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder; provided, however, that the Borrower shall not be required to
indemnify any Non-U.S. Lender that fails to comply with the requirements of
paragraph (b) or (c) of this subsection to the extent such amounts would not be
payable had such Lender so complied.
(b) Each Non-U.S. Lender shall:
(i) in the case of a Lender (or Transferee) that is a "bank" under Section
881(c)(3)(A) of the Code;
(A) on or before the date on which the first
payment becomes payable to it hereunder or under any
Note (or, in the case of a Participant, on or before
the date such Participant becomes a Participant
hereunder) and on or before the date, if any, such
Lender (or Transferee) changes its applicable lending
office by designating a different lending office (a
"New Lending Office") deliver to the Borrower and the
Agent (y) two properly completed and duly executed
copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the
case may be, and (z) an Internal Revenue Service Form
W-8 or W-9, or successor applicable form, as the case
may be;
(B) deliver to the Borrower and the Agent
two further properly completed and duly executed
copies of any such form or certification on or before
the date that any such form or certification expires
or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form
previously delivered by it to the Borrower or upon
the request of the Borrower or the Agent; and
(C) obtain such extensions of time for
filing and completing such forms or certifications as
may reasonably be requested by the Borrower;
(ii) in the case of a Lender or a Transferee that is not a "bank" under
Section 881(c)(3)(A) of the Code:
(A) on or before the date on which the first
payment becomes payable to it hereunder or under any
Note (or, in the case of a Participant, on or before
the date such Participant becomes a Participant
hereunder) deliver to the Borrower and the Agent (I)
a statement under penalties of perjury that such
Lender (x) is not a "bank" under Section 881(c)(3)(A)
of the Code, is not subject to regulatory or other
legal requirements as a bank in any jurisdiction, and
has not been treated as a bank for purposes of any
tax, securities law or other filing or submission
made to any Governmental Authority, any application
made to a rating agency or qualification for any
exemption from tax, securities law or other legal
requirements, (y) is not a 10-percent shareholder of
the Borrower within the meaning of Section
881(c)(3)(B) of the Code and (z) is not a controlled
foreign corporation receiving interest from a related
person within the meaning of Section 881(c)(3)(C) of
the Code and (II) a properly completed and duly
executed Internal Revenue Service Form W-8 or
applicable successor form;
(B) deliver to the Borrower and the Agent
two further properly completed and duly executed
copies of said Form W-8, or any successor applicable
form on or before the date that any such Form W-8
expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent
form previously delivered by it to the Borrower or
upon the request of the Borrower; and
(C) obtain such extensions of time for
filing and completing such forms or certifications as
may be reasonably requested by the Borrower or the
Agent;
unless in any such case any change in treaty, law or regulation has occurred
subsequent to the date such Lender (or Transferee) became a party to this
Agreement (or in the case of a Participant, the date such Participant became a
Participant hereunder) which renders all such forms inapplicable or which would
prevent such Lender from properly completing and executing any such form with
respect to it and such Lender so advises the Borrower and the Agent in writing
no later than 15 calendar days before any payment hereunder or under any Note is
due. Each such Lender (and each Transferee) shall certify (i) in the case of a
Form 1001 or 4224, that it is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income taxes and
(ii) in the case of a Form W-8 or W-9 delivered pursuant to subsection
2.13(b)(i), that it is entitled to an exemption from United States backup
withholding tax. Each Person that shall become a Lender or a Participant
pursuant to subsection 9.6 shall, upon the effectiveness of the related
transfer, provide all of the forms and statements required pursuant to this
subsection, provided that, in the case of a Participant, such Participant shall
furnish all such required forms and statements to the Lender from which the
related participation shall have been purchased.
(c) Each Lender (and the Agent with respect to payments to the
Agent for its own account) agrees that it will (i) take all reasonable actions
by all usual means to maintain all exemptions, if any, available to it from
United States withholding taxes (whether available by treaty, existing
administrative waiver, by virtue of the location of any Lender's applicable
lending office or otherwise) and (ii) otherwise cooperate with the Borrower to
minimize amounts payable by the Borrower under this subsection provided such
measures or actions would not, in such Lender's determination, cause such Lender
to suffer any material economic, legal or regulatory disadvantage.
(d) If any Lender shall receive a credit or refund from a
taxing authority with respect to, and actually resulting from, an amount of
Non-Excluded Taxes actually paid to or on behalf of such Lender by the Borrower
including any interest received thereon (a "Tax Credit"), such Lender shall
promptly notify the Borrower of such Tax Credit. If such Tax Credit is received
by such Lender in the form of cash, such Lender shall promptly pay to the
Borrower the amount so received with respect to the Tax Credit. If such Tax
Credit is not received by such Lender in the form of cash, such Lender shall pay
the amount of such Tax Credit not later than the time prescribed by applicable
law for filing the return (including extensions of time) for such Lender's
taxable period which includes the period in which such Lender receives the
economic benefit of such Tax Credit. In any event, the amount of any Tax Credit
payable by a Lender to the Borrower pursuant to this paragraph shall not exceed
the actual amount of cash refunded to, or credits received and usable by, such
Lender from a taxing authority. Furthermore, any amount of any Tax Credit
payable by a Lender to the Borrower shall be paid only to the extent that it can
do so without prejudice to the retention of the amount of such credit or refund.
In determining the amount of any Tax Credit, a Lender may use such apportionment
and attribution rules as such Lender customarily employs in allocating taxes
among its various operations and income sources, and such determination shall be
conclusive. Nothing in this subsection 2.13(d) shall be construed as requiring
any Lender to conduct its business or to arrange or alter in any respect its tax
or financial affairs so that it is entitled to receive any such Tax Credit if to
do so would, in the Lender's determination, cause such Lender to suffer any
material economic, legal or regulatory disadvantage. The Borrower further agrees
promptly to return to a Lender the amount paid to the Borrower with respect to a
Tax Credit by such Lender if such Lender is required to repay, or is determined
to be ineligible for, a Tax Credit for such amount.
2.14 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of Eurodollar Loans after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of or conversion from Eurodollar Loans on a day which is not the last
day of an Interest Period with respect thereto. Such indemnification shall be in
an amount equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid or converted, or not so borrowed,
converted or continued, for the period from the date of such prepayment or
conversion or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.
2.15 Change of Lending Office; Mandatory Assignment or
Prepayment. (a) Each Lender agrees that if it makes any demand for payment under
subsection 2.12 or 2.13(a), or if any adoption or change of the type described
in subsection 2.11 shall occur with respect to it, it will use reasonable
efforts (consistent with its legal and regulatory restrictions and so long as
such efforts would not be materially disadvantageous to it) to designate a
different lending office if the making of such a designation would reduce or
obviate the need for the Borrower to make payments under subsection 2.12 or
2.13(a) or would eliminate or reduce the effect of any adoption or change
described in subsection 2.11; provided such measures or actions would not, in
the Lender's determination, cause such Lender to suffer any material economic,
legal or regulatory disadvantage.
(b) If the Borrower shall be required to pay any additional
amounts or other payments in accordance with subsection 2.12 or 2.13(a) or if
any Lender shall, in accordance with subsection 2.11, no longer be obligated to
make or maintain Eurodollar Loans hereunder, the Borrower may, at its own
expense and in its sole discretion, (i) require such Lender to transfer or
assign, in whole or in part, without recourse (in accordance with subsection
9.6), all or part of its interests, rights and obligations under this Agreement
to another Person (provided that the Borrower, with the full cooperation of such
Lender, can identify a Person which is ready, willing and able to be an Assignee
with respect to thereto) which shall assume such assigned obligations and is
reasonably satisfactory to the Agent (which Assignee may be another Lender, if
such Assignee Lender accepts such assignment) or (ii) so long as no Event of
Default shall have occurred and be continuing, terminate the Commitment, if any,
of such Lender and prepay all outstanding Loans of such Lender; provided that
(A) the Assignee or the Borrower, as the case may be, shall have paid to such
Lender in immediately available funds the principal of and interest accrued to
the date of such payment on the Loans made by it hereunder and all other amounts
owed to it hereunder, including, without limitation, any amounts owing pursuant
to subsection 2.14 and, in the case of any such assignment, any amounts that
would be owing under said subsection if such Loans were prepaid on the date of
such assignment, (B) such assignment or termination of the Commitment, if any,
of such Lender and prepayment of Loans does not conflict with any law, rule or
regulation or order of any Governmental Authority and (C) such Lender shall be
indemnified by the Borrower for any cost, expense, or other liabilities incurred
as a result of any action taken pursuant to this subsection 2.15(b).
2.16 Treatment of Certain Prepayments. Notwithstanding
anything to the contrary in this Agreement, in the event that (a) the Borrower
shall be required pursuant to the provisions of a Bank Credit Facility, the
Other Vendor Credit Facility or any instruments governing any other Indebtedness
of the Borrower to offer to apply any amount toward the prepayment of the Loans
or (b) the Borrower is required to make any mandatory prepayment pursuant to
subsection 2.5, the Borrower may, at its option, either apply such amount toward
prepayment of the Loans pro rata or follow the procedures set forth in this
subsection. Not less than 10 nor more than 20 Business Days prior to the date (a
"Specified Prepayment Date") on which any such prepayment is scheduled to be
made, the Borrower shall deliver a Prepayment Offer Notice to the Agent, which
shall promptly thereafter deliver a copy thereof to each Lender. Each Lender
receiving such Prepayment Offer Notice shall indicate its acceptance or
rejection of such offer (and, in the case of its acceptance, its Prepayment
Acceptance Amount) by delivering a Prepayment Offer Response Notice to the Agent
and the Borrower no later than four Business Days prior to the Specified
Prepayment Date set forth in the applicable Prepayment Offer Notice. On such
Specified Offered Prepayment Date, the Borrower shall prepay each Lender's Loans
in a principal amount equal to such Lender's Prepayment Share. The Agent shall
calculate the amounts of the prepayments payable to the respective Lenders
required by this subsection.
2.17 Use of Proceeds. The proceeds of the Loans shall be used
for the purposes described in Section 2 of Schedule I. The proceeds of Cash
Advances may be used only to refinance amounts paid on account of invoices
submitted to the Borrower by the Vendor pursuant to the Vendor Procurement
Contract and paid by the Borrower other than with Credit Advances.
2.18 Fees. The Borrower agrees to pay the fees described
in Section 3 of Schedule I.
----
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lenders to enter into this Agreement and to make
the Loans, the Borrower hereby represents and warrants to each Lender that:
3.1 Financial Condition. (a) The audited consolidated balance
sheet and consolidated statements of operating changes in partners' capital and
cash flows of the Borrower and its consolidated Subsidiaries as at and for the
year ended December 31, 1995 and the unaudited balance sheet and consolidated
statements of operating changes in partners' capital and cash flows of the
Borrower and its consolidated Subsidiaries as at and for the six-month period
ended June 30, 1996, copies of which have heretofore been furnished to the
Vendor, were prepared in accordance with GAAP and present fairly the
consolidated financial condition and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as at such dates and for the
respective periods then ended.
(b) The detailed projections contained in Exhibit B to the
Borrower's Business Plan Overview dated March 1996 were prepared in good faith
on the basis of the assumptions described in such Business Plan Overview, which
assumptions were believed by the Borrower in good faith to be reasonable in
light of conditions existing at the time of preparation thereof, and the
Borrower has no knowledge of any event or circumstance that would cause it to
change any such assumptions in any material respect as of the date hereof, it
being understood by the Agent and the Lenders that actual results may vary from
the projected results contained therein, and, as of the date of this Agreement,
there are no facts or circumstances known to the Borrower that would make the
projections materially inaccurate, incomplete or misleading.
(c) The balance sheet and other financial statements required
to be furnished to the Agent subsequent to the Closing Date pursuant to
subsection 5.1 will present fairly the consolidated financial position and
results of operations and cash flows of the Borrower and its Restricted
Subsidiaries in accordance with GAAP as at the end of and for the fiscal periods
set forth therein.
(d) Each budget required to be furnished to the Agent
subsequent to the Closing Date pursuant to subsection 5.2(c) will have been
approved by the Partnership Board of Holding, and any projections delivered in
connection therewith will have been prepared in good faith on the basis of
assumptions reasonably believed by the Borrower in good faith to be reasonable
in light of conditions existing at the time of preparation thereof, it being
understood by the Agent and the Lenders that actual results may vary from the
projected results contained therein, and there will be, at the time of
preparation thereof, no facts or circumstances known to the Borrower that are
not reflected in such projections the failure to include which would make the
projections materially inaccurate, incomplete or misleading.
3.2 No Change. Since December 31, 1995, there have been no
developments, events or circumstances that, individually or in the aggregate,
have had or could reasonably be expected to have a Material Adverse Effect,
except for operating losses contemplated by the Borrower's Business Plan
Overview dated March 1996. Since December 31, 1995, neither the Borrower nor any
Restricted Subsidiary has made any Restricted Payments except, after the date
hereof, as permitted hereby.
3.3 Existence; Compliance with Law. Each of the Borrower and
its Restricted Subsidiaries (a) is duly formed, validly existing and in good
standing under the laws of the jurisdiction of its formation, (b) has the power
and authority to own and operate its property, to lease the property it operates
as lessee and to conduct the business in which it is currently engaged and to
own and operate Systems in the areas for which it has Licenses, (c) is duly
qualified to do business and in good standing in each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, including, without limitation, the Communications Act, except to the extent
that the failure of any of the statements set forth in subsections 3.3(c) and
(d) to be true and correct could not reasonably be expected to have a Material
Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations. The
Borrower has the power and authority to make, deliver and perform this Agreement
and to borrow hereunder and has taken all necessary partnership action to
authorize the borrowings on the terms and conditions of this Agreement and to
authorize the execution, delivery and performance of this Agreement. No consent
or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority is required of the Borrower in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement and the Loan Documents to which it is a party
other than those required in connection with the perfection of the Liens created
by the Security Documents. This Agreement and the Loan Documents to which it is
a party have been duly executed and delivered on behalf of the Borrower. This
Agreement and the Loan Documents to which it is a party constitute legal, valid
and binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
3.5 No Legal Bar. The execution, delivery and performance of
this Agreement, the borrowings hereunder and the use of the proceeds thereof
will not violate any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Subsidiaries or any License or permit applicable to
the Borrower, its Subsidiaries or any of its or their property and will not
result in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation, License or permit, other than the Liens created by
the Security Documents.
3.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority has been taken
or initiated, is pending or, to the knowledge of the Borrower, threatened by or
against or affecting the Borrower or any of its Restricted Subsidiaries or
against any of its or their respective properties or revenues (a) with respect
to any of the Loan Documents or (b) which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
3.7 No Default. Neither the Borrower nor any of its Restricted
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the Borrower and its
Restricted Subsidiaries has good and marketable title in fee simple to, or a
valid leasehold interest in, all its material real property, and good title to,
or a valid leasehold interest in, all its other material property (including,
without limitation, its partnership interests in the Special Purpose
Subsidiaries), and none of such property is subject to any Lien except as
permitted by subsection 6.3.
3.9 Intellectual Property. The Borrower and each of its
Restricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, patents, know-how and processes necessary for the
conduct of its business as currently conducted and as currently proposed to be
conducted except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the "Intellectual
Property"). No claim has been asserted and is pending by any Person challenging
or questioning the use of any Intellectual Property or the validity or
effectiveness of any Intellectual Property, nor does the Borrower know of any
valid basis for any such claim, except for any such claim which, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. The use of the Intellectual Property by the Borrower and its Restricted
Subsidiaries does not infringe on the rights of any Person, except for such
infringements that could not reasonably be expected to have a Material Adverse
Effect.
3.10 Taxes. Each of the Borrower and its Restricted
Subsidiaries has filed or caused to be filed all tax returns which, to the
knowledge of the Borrower, are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority which have become due and
payable (other than any the amount or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower
or its Restricted Subsidiaries, as the case may be).
3.11 Federal Regulations. No part of the proceeds of any Loans
will be used in any manner which would result in a violation of Regulation G or
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect.
3.12 ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or Section
302 of ERISA), whether or not waived, has occurred during the five-year period
prior to the date on which this representation is made or deemed made with
respect to any Single Employer Plan or is reasonably expected to occur, and each
Single Employer Plan has complied in all respects with the applicable provisions
of ERISA and the Code and the terms of such Plan, except with respect to any
such event or failure to comply where the liability which could reasonably be
expected to be incurred would not have a Material Adverse Effect. No Lien in
favor of the PBGC or a Plan has arisen, and, except with respect to a Single
Employer Plan where the liability which could reasonably be expected to be
incurred would not have a Material Adverse Effect, neither the Borrower nor any
Commonly Controlled Entity has (i) received a notice from the PBGC or a plan
administrator of an intention to terminate any Single Employer Plan or to
appoint a trustee to administer any Single Employer Plan, (ii) filed or provided
a notice of intent to terminate or take any other action that could reasonably
be expect to result in the termination of any Single Employer Plan other than in
a standard termination within the meaning of Section 4041 of ERISA or (iii)
incurred any liability under ERISA with respect to any Single Employer Plan
described in Section 4063 of ERISA during such five-year period, and no such
event, circumstance or condition is reasonably expected to occur. The present
value of all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits
by an amount which if such Plan then terminated could reasonably be expected to
have a Material Adverse Effect. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan, and
neither the Borrower nor any Commonly Controlled Entity would become subject to
any liability under ERISA if the Borrower or any such Commonly Controlled Entity
were to withdraw completely from all Multiemployer Plans as of the valuation
date most closely preceding the date on which this representation is made or
deemed made, which in any event could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Commonly Controlled Entity has
received notice that any such Multiemployer Plan is in Reorganization, is
Insolvent, or is being terminated where the liability resulting therefrom could
reasonably be expected to have a Material Adverse Effect.
3.13 Investment Company and Holding Company Act. The Borrower
is not an "investment company" within the meaning of the Investment Company Act
of 1940, as amended or a "holding company", or a "subsidiary" or "affiliate" of
a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended. Neither the Borrower nor any Subsidiary is subject to
regulation under any Federal or state statute or regulation which limits its
ability to incur Indebtedness.
3.14 Subsidiaries; Parents. (a) The following constitute all
the Subsidiaries of the Borrower as of the date hereof: (a) WirelessCo (the sole
general partner of which is the Borrower and the sole limited partner of which
is MinorCo), (b) EquipmentCo (the sole general partner of which is the Borrower
and the sole limited partner of which is MinorCo), (c) RealtyCo (the sole
general partner of which is the Borrower and the sole limited partner of which
is MinorCo) and (d) Sprint Spectrum Finance Corporation, a Delaware corporation
and a Wholly Owned Subsidiary of the Borrower.
(b) The sole general partner of the Borrower is Holding, and
the sole limited partner of the Borrower is MinorCo. As of the date hereof,
Sprint Enterprises, L.P., TCI Telephony Services, Inc., Comcast Telephony
Services and Cox Telephony Partnership are each general and limited partners of
Holding and MinorCo, and there are no other partners of Holding or MinorCo.
Sprint Enterprises, L.P. is a wholly owned Subsidiary of Sprint Corporation; TCI
Telephony Services, Inc. is a wholly owned Subsidiary of Tele-Communications,
Inc.; Comcast Telephony Services is a wholly owned Subsidiary of Comcast
Corporation; and Cox Telephony Partnership is a wholly owned Subsidiary of Xxx
Communications, Inc.
3.15 Absence of Material Obligations. None of WirelessCo,
EquipmentCo and RealtyCo has any material obligations or liabilities other than
in connection with (a) the Guarantees, (b) in the case of RealtyCo, any lease of
real property which RealtyCo has entered into in the ordinary course of business
and other obligations and liabilities incurred in the ordinary course of
business which are incident to being the owner or lessee of real property, (c)
in the case of EquipmentCo, the Vendor Procurement Contract or the Other Vendor
Procurement Contract, the rights and benefits of Holding under which have been
assigned to it or (d) in the case of WirelessCo, its obligations to comply with
the requirements of the Licenses.
3.16 Environmental Matters. (a) In the ordinary course of its
business, the Borrower conducts an ongoing review of the effect of Environmental
Laws on the business, operations and properties of the Borrower and its
Restricted Subsidiaries, in the course of which it identifies and evaluates
associated liabilities and costs (including, without limitation, any capital or
operating expenditures required for clean-up or closure of properties presently
or previously owned, any capital or operating expenditures required to achieve
or maintain compliance with Environmental Laws and Environmental Permits, any
related constraints on operating activities, including any periodic or permanent
shutdown of any facility or reduction in the level of or change in the nature of
operations conducted thereat, any costs or liabilities in connection with
off-site disposal of wastes or Hazardous Substances, and any actual or potential
liabilities to third parties, including employees, and any related costs and
expenses). On the basis of this review, the Borrower has reasonably concluded
that such associated liabilities and costs, including the costs of compliance
with Environmental Laws, could not reasonably be expected to have a Material
Adverse Effect.
(b) The Borrower and its Restricted Subsidiaries have obtained
all Environmental Permits with respect to the facilities and properties owned,
leased or operated by the Borrower or any of its Restricted Subsidiaries (the
"Properties"), and the Borrower and the Restricted Subsidiaries are in
compliance with all Environmental Laws and all Environmental Permits, except to
the extent that such failure to obtain any Environmental Permits and
noncompliance with Environmental Laws and Environmental Permits could not
reasonably be expected to have a Material Adverse Effect.
(c) There have been no Releases or threatened Releases at,
from, under or proximate to the Properties or otherwise in connection with the
operations of the Borrower or its Restricted Subsidiaries, which Releases or
threatened Releases could reasonably be expected to have a Material Adverse
Effect.
(d) There are no past or present actions, omissions,
activities, events, conditions or circumstances, including the Release,
threatened Release, emission, discharge, generation, treatment, storage or
disposal of Hazardous Substances at, from or under any location, that will give
rise to liability of the Borrower or any of its Restricted Subsidiaries under
any Environmental Law, except to the extent that such liability could not
reasonably be expected to have a Material Adverse Effect.
3.17 Licenses. (a) On the date hereof, (i) the Borrower and
its Restricted Subsidiaries hold all Licenses necessary on the date of this
Agreement to operate a System in each of the MTA's listed on Schedule 3.17(a),
(ii) such Licenses have been duly issued by the FCC, are held by WirelessCo and
are in full force and effect and (iii) the Borrower and its Restricted
Subsidiaries are in compliance in all material respects with all of the
provisions of each such License. As of the date hereof, no License is subject to
any pending or, to the knowledge of the Borrower, threatened revocation or
termination proceeding or action.
(b) The Borrower and its Restricted Subsidiaries hold all
Licenses to operate Systems in MTA's covering at least 120,000,000 Owned Pops,
and such Licenses have been duly issued by the FCC, are held by WirelessCo and
are in full force and effect; and the Borrower and its Restricted Subsidiaries
are in compliance in all material respects with all of the provisions of each
such License.
3.18 Provisions of Other Vendor Credit Facility. The
provisions of Section 1 (but only to the extent the definitions therein are
included in the following subsections and Sections of this Agreement),
subsections 2.4, 2.5, 2.7(d), 2.11, 2.12, 2.13, 2.14 and 2.16, Sections 3, 5, 6
and 7 and subsections 9.1, 9.5 (with respect to the indemnity provisions), 9.6,
9.7, 9.11, 9.12, 9.13, 9.14, 9.15 and 9.17, will, when the Other Vendor Credit
Facility is executed by the parties thereto, be identical in all material
respects to the similar provisions of the Other Vendor Credit Facility (wherever
included and except for differences resulting solely from differences in the
names of the Vendor party thereto), except to the extent subsection 9.6 hereof
or subsection 9.6 of the Other Vendor Credit Facility is modified by Schedule I
hereto or thereto, respectively.
3.19 No Material Misstatement. The information, reports and
schedules furnished by or on behalf of the Borrower or any other Loan Party to
the Agent or any Lender in connection with any Loan Document, taken as a whole,
do not, on the date hereof, contain any material misstatement of fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of the Lenders to make the
initial Loans is subject to the satisfaction, prior to or concurrently with
the making of such Loans, of the following conditions precedent:
(a) Partnership Proceedings of Holding and the Borrower. The
Agent shall have received, with a counterpart for the Vendor, a copy of
the resolutions, in form and substance satisfactory to the Agent and
the Vendor, of the Partnership Board of Holding as the general partner
of the Borrower, authorizing (i) the execution, delivery and
performance of this Agreement and (ii) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of
Holding, which certificate shall be in form and substance satisfactory
to the Agent and shall state that the resolutions thereby certified
have not been amended, modified, revoked or rescinded.
(b) Borrower Incumbency Certificate. The Agent shall have
received, with a counterpart for the Vendor, a certificate of the
Borrower, as to the incumbency and signature of the officers of Holding
executing this Agreement satisfactory in form and substance to the
Agent and the Vendor, executed by the Secretary or any Assistant
Secretary of Holding.
(c) Capital Contribution Agreement. The Agent shall have
received, with a counterpart for the Vendor, a certificate of a
Responsible Officer of the Borrower stating that attached thereto is a
fully executed counterpart of the Capital Contribution Agreement and
certifying that such Agreement is in full force and effect without any
term or condition thereof having been amended, modified or waived and
that there is no default thereunder.
(d) Licenses. The Agent shall have received, with a
counterpart for the Vendor, a certificate of a Responsible Officer of
the Borrower attaching a copy of each of the Licenses referred to in
subsection 3.17 and certifying that each (i) such copy is true, correct
and complete and includes all amendments, modifications and waivers
thereto executed prior to the date of such certificate and (ii) such
License is fully paid for.
(e) Partnership Agreements; Trademark License Agreement. The
partnership agreements of the Special Purpose Subsidiaries shall
contain provisions reasonably satisfactory to the Agent and the Vendor
ensuring that any assignee of the partnership interests therein will be
entitled to all rights (including, without limitation, management and
voting rights) of the partners pledging such partnership interests. The
Agent shall have received, with counterparts for the Vendor, conformed
copies of (i) the partnership agreements of the Borrower, WirelessCo,
EquipmentCo, RealtyCo, Holding and MinorCo and (ii) the Trademark
License Agreement, each of which shall be certified by a Responsible
Officer as a true, correct and complete copy thereof and in full force
and effect, and each of which shall be in form and substance
satisfactory to the Agent and the Vendor.
(f) Contributed Capital. The Agent shall have received, with a
counterpart for the Vendor, a certificate of a Responsible Officer of
the Borrower to the effect that the Borrower has received Contributed
Capital in an aggregate amount of at least $2,200,000,000.
(g) Legal Opinions. The Agent shall have received, with a
counterpart for the Vendor, the following executed legal opinions
addressed to the Agent and the Vendor:
(i) the legal opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
to the Borrower, substantially in the form of Exhibit B-1;
(ii) the legal opinion of Xxxxxxx X. Xxxxxx, Esq., Associate
General Counsel of the Borrower, substantially in the form of
Exhibit B-2; and
(iii) the legal opinion of Xxxxxxxx & Xxxxxxxx LLP, special
counsel to the Borrower with respect to FCC matters,
substantially in the form of Exhibit B-3.
(h) Trust Agreement. The Agent shall have received (i) a copy
of the Trust Agreement, duly executed and delivered by the Borrower,
the Corporate Trustee and the Individual Trustee, (ii) evidence, in
form and substance satisfactory to the Agent and the Vendor, that all
documents and other instruments required to be delivered, and all other
actions required to have been taken, pursuant to subsections 4.1,
4.8(a), 4.9(a) and 4.10(a) of the Trust Agreement shall have been so
delivered or taken, as the case may be, (iii) conformed copies or
originals of all such documents and instruments referred to in clause
(ii) immediately preceding (and all such agreements, documents,
instruments and opinions shall be in form and substance reasonably
satisfactory to the Agent and the Vendor), and (iv) such other
certificates and other documents relating to the Trustees and the Trust
Agreement as the Agent shall reasonably request. The Trust Agreement
shall be in full force and effect.
(i) Search Reports. The Agent shall have received, with
counterparts for the Vendor, copies of searches conducted as of a date
acceptable to the Agent of the Uniform Commercial Code records in all
applicable public offices in which filings are required to be made in
accordance with the provisions of subsection 4.9(a) of the Trust
Agreement, and such searches shall reveal no Liens other than those
permitted by subsection 6.3.
(j) Other Credit Facilities. The Agent shall have received
copies of the definitive documentation establishing the Other Vendor
Credit Facility and the Existing Bank Credit Facility; provided that
certain confidential provisions of each such Facility (which in any
event shall not include any of the provisions specified in subsection
3.18) shall not be required to be delivered by the Borrower.
(k) Fees. The Agent shall have received all fees and other
amounts due and payable on or prior to the Closing Date.
(l) Business Plan. The Agent shall have received a certified
copy of the Borrower's Business Plan Overview dated March 1996.
4.2 Conditions to Each Loan. The agreement of the
Lenders to make any Loan requested to be made on any date (including,
without limitation, the initial Loans) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and each other Loan
Party in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of
such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Loans requested to be made on such date.
(c) No Termination of Vendor Procurement Contract. The
Borrower shall not have notified the Vendor of the termination by the
Borrower of the Vendor Procurement Contract unless prior to doing so
the Borrower shall have placed orders thereunder aggregating at least
$500,000,000 (in the case of any such termination during the Phase I
Commitment Period) or $1,000,000,000 (in the case of any such
termination after the commencement of the Phase II Commitment Period).
(d) Borrowing Notice. The Agent shall have received a
Borrowing Notice meeting the requirements of subsection 2.2.
Each borrowing by the Borrower hereunder shall constitute a representation and
warranty by the Borrower as of the date thereof that the conditions contained in
this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender under the Credit Agreement
or any other Loan Document, the Borrower shall and (except in the case of
delivery of financial information, reports and notices) shall cause each of its
Restricted Subsidiaries to:
5.1 Financial Statements. Furnish to the Agent:
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
consolidated balance sheet of the Borrower and its Restricted
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash
flows for such fiscal year, reported on, and accompanied by an opinion
(which shall not be qualified based upon the scope of the audit) by
Deloitte & Touche LLP or other independent certified public accountants
of nationally recognized standing to the effect that such financial
statements fairly present the financial condition and results of
operations and cash flows of the Borrower and its Restricted
Subsidiaries in accordance with GAAP and setting forth in comparative
form the figures for the previous fiscal year (other than in the case
of the 1996 fiscal year); and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its Restricted Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
retained earnings and of cash flows of the Borrower and its Restricted
Subsidiaries for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in comparative form the
figures for the corresponding period of the previous fiscal year (other
than in the case of any such quarter during the 1996 fiscal year) and
the figures for the Borrower's budget for the period covered thereby,
certified by a Responsible Officer as fairly presenting the financial
condition and results of operations and cash flows of the Borrower and
its Restricted Subsidiaries in accordance with GAAP for the date and
periods ending on such date (subject to normal year-end audit
adjustments);
all such financial statements shall be prepared in accordance with GAAP applied
consistently throughout the periods reflected therein (except as approved by
such accountants or Responsible Officer, as the case may be, and disclosed
therein).
5.2 Certificates; Other Information. Furnish to the
Agent:
(a) concurrently with the delivery of the financial statements
referred to in subsection 5.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor (and without
performing any additional non-customary procedures with respect
thereto) no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and (b), a certificate of a
Responsible Officer (i) stating that, to the best of such Responsible
Officer's knowledge after due inquiry, each of the Borrower and the
Restricted Subsidiaries during such period has observed or performed
all of its covenants (including, without limitation, the financial
covenants set forth in subsections 6.1(a) through (g)) and other
agreements contained in this Agreement and the other Loan Documents to
be observed or performed by it and that such Responsible Officer has
obtained no knowledge of any Default or Event of Default, except as
specified in such certificate (and if such certificate contains notice
of any Default or Event of Default, setting forth details of the
occurrence referred to therein and stating what action the Borrower has
taken or proposes to take with respect thereto), and (ii) if Floating
GAAP used in the preparation of any such financial statements shall be
different from Fixed GAAP, describing such differences and reconciling
any differences in calculation of compliance with the covenants set
forth in subsection 6.1 which may result from such differences in GAAP;
(c) as soon as available, the annual budget prepared pursuant
to Holding's partnership agreement and approved by Partnership Board of
Holding for each fiscal year of the Borrower (which shall be presented
on a quarterly basis for such fiscal year), commencing with its 1997
fiscal year and any financial projections for a period of greater than
one year, to the extent such projections were requested by and approved
by the Partnership Board of Holding;
(d) promptly after the filing thereof, copies of all proxy
statements, all registration statements under the Securities Act of
1933, as amended (other than those on Form 5-8 relating to any Plan),
and all reports on Forms 10-K, 10-Q and 8-K filed with the Securities
and Exchange Commission by the Borrower; and
(e) promptly, such additional information regarding the
operation and financial condition as the Agent may from time to time
reasonably request for itself or on behalf of any Lender.
5.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Restricted Subsidiaries, as the case may be.
5.4 Conduct of Business; Maintenance of Existence; Compliance
with Laws. Preserve, renew and keep in full force and effect its existence and
take all reasonable action to maintain all permits, rights, privileges and
franchises necessary or desirable in the normal conduct of its business except
as otherwise permitted pursuant to subsection 6.5; comply with all of its
Contractual Obligations (including, without limitation, obligations under any
License) and Requirements of Law, including, without limitation, the
Communications Act, except to the extent that failure to comply therewith could
not reasonably be expected to have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all property
useful or necessary in its business in good working order and condition, except
where the failure to do so would not be reasonably expected to have a Material
Adverse Effect; maintain with financially sound and reputable insurance
companies insurance on all its property and its business in at least such
amounts and against at least such risks as are usually insured against by
companies engaged in the same or a similar business in similar geographic areas.
5.6 Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which entries in conformity with
GAAP and all Requirements of Law applicable to it shall be made of all dealings
and transactions in relation to its business and activities; permit
representatives of any Lender to visit and inspect any of its properties, and
make copies of and extracts from, and/or to examine its books, records and
accounts, at any reasonable time (upon reasonable advance notice) and as often
as may be reasonable and to discuss with officers and employees of the Borrower
and its Restricted Subsidiaries the business, assets and financial condition of
the Borrower and its Restricted Subsidiaries and, in particular, the annual
budget delivered pursuant to subsection 5.2(c); provided, that except during the
continuance of an Event of Default, such visits by the Lenders shall be
coordinated by the Agent so that such visits shall take place no more than once
per fiscal quarter. During the continuance of an Event of Default, the Borrower
authorizes the Agent and the Lenders, upon reasonable notice to the Borrower and
if accompanied by the Borrower, to communicate directly with the Borrower's
independent certified public accountants to discuss the financial condition of
the Borrower and its Restricted Subsidiaries.
5.7 Notices. Promptly after any Responsible Officer has
knowledge thereof, give notice to the Agent of:
(a) the occurrence of any Default or Event of Default;
(b) any default or event of default under any Contractual
Obligation of the Borrower or any of its Restricted Subsidiaries which
could, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of its Restricted Subsidiaries which, individually or in the aggregate,
if adversely determined could reasonably be expected to have a Material
Adverse Effect;
(d) the following events, as soon as possible and in any event
within (i) 30 days after the Borrower knows thereof: the occurrence or
expected occurrence of any Reportable Event with respect to any Plan or
any withdrawal from, or the termination, Reorganization or Insolvency
of, any Multiemployer Plan, and (ii) ten Business Days after the
occurrence thereof: a failure to make any required contribution to a
Plan, the creation of any Lien in favor of the PBGC or a Plan or the
institution of proceedings or the taking of any other action by the
PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan, which, in
connection with any of the foregoing, the liability which could
reasonably be expected to occur would have a Material Adverse Effect;
(e) the termination (other than as permitted herein) or
revocation of any of the Bona Fide Commitments that are conditions
precedent to the continued availability of the Vendor Commitment as set
forth in Schedule I;
(f) any change in the ownership of the Borrower or any of it
Restricted Subsidiaries;
(g) any notice of termination of either the Vendor Procure-
ment Contract or the Other Vendor Procurement Contract; and
(h) any other development (including any Release or any
noncompliance with any Environmental Law or Environmental Permit) that
has resulted in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a certificate of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower proposes to take with respect
thereto.
5.8 Environmental Laws. (a) Comply with all applicable
Environmental Laws and obtain and comply in all material respects with and main-
tain any and all Environmental Permits, except to the extent that failure to do
so could not reasonably be expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions, required under
Environmental Laws, except to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect, and promptly comply in
all material respects with all lawful orders and directives of all Governmental
Authorities regarding Environmental Laws except to the extent that the same are
being contested in good faith by appropriate proceedings and the pendency of
such proceedings could not reasonably be expected to have a Material Adverse
Effect.
5.9 After-Acquired Assets. (a) Promptly (i) transfer to
WirelessCo any License held by the Borrower or any Restricted Subsidiary (other
than WirelessCo) and (ii) at the option of the Borrower, either (A) transfer (I)
to EquipmentCo any Personal Property Assets (other than Direct-Lien Assets)
hereafter acquired by the Borrower or any Restricted Subsidiary and any such
Personal Property Assets of any Person that becomes a Restricted Subsidiary or
is merged with or into or consolidated with the Borrower or any Restricted
Subsidiary (in each case other than any such Personal Property Assets
constituting Excluded Assets), (II) to RealtyCo any Real Estate Assets hereafter
acquired by the Borrower or any Restricted Subsidiary and any Real Estate Assets
of any Person that becomes a Restricted Subsidiary or is merged with or into or
consolidated with the Borrower or any Restricted Subsidiary (in each case other
than any such Real Estate Assets constituting Excluded Assets) and (III) to the
Borrower any Direct-Lien Assets hereafter acquired by the Borrower or any
Restricted Subsidiary and any Direct-Lien Assets of any Person that becomes a
Restricted Subsidiary or is merged with or into or consolidated with the
Borrower or any Restricted Subsidiary (in each case other than any Direct-Lien
Assets constituting Excluded Assets) or (B) create on terms reasonably
acceptable to the Agent a perfected first priority security interest (subject to
any Liens permitted by subsection 6.3 (other than those referred to in the
definition of the term "Excluded Assets")) in favor of the Trustees for the
benefit of the Secured Parties in such Personal Property Assets, Real Estate
Assets or Direct-Lien Assets.
(b) Promptly create in favor of the Trustees for the benefit
of the Secured Parties in accordance with the terms of the Security Documents a
first priority perfected security interest (subject to any Liens permitted by
subsection 6.3) in any Direct-Lien Assets of the Borrower or any Restricted
Subsidiary (other than Excluded Assets) that are not subject to such a security
interest, including with respect to Direct-Lien Assets that are acquired by the
Borrower or any Restricted Subsidiary after the date hereof and Direct-Lien
Assets of any Person that becomes a Restricted Subsidiary or is merged with or
into or consolidated with the Borrower or any Restricted Subsidiary.
(c) Promptly create a mortgage on terms reasonably acceptable
to the Agent in favor of the Trustees for the benefit of the holders of the
Secured Obligations on any fee simple interests in real property having at the
time of acquisition thereof a purchase price or fair market value greater than
$15,000,000 (a "Mortgaged Property") of the Borrower or any Restricted
Subsidiary (other than Excluded Assets) that are not so mortgaged, including
Mortgaged Properties that are acquired by the Borrower or any Restricted
Subsidiary after the date hereof and Mortgaged Properties of any Person that
becomes a Restricted Subsidiary or is merged with or into or consolidated with
the Borrower or any Restricted Subsidiary.
(d) Promptly cause (i) all Capital Stock of any Restricted
Subsidiary held by the Borrower or any other Subsidiary (including, without
limitation, any Restricted Subsidiary which shall be acquired by the Borrower in
accordance with the provisions of subsection 6.8(c) or (d) or any Unrestricted
Subsidiary which shall hereafter become a Restricted Subsidiary) to become
Additional Collateral under and pursuant to the Trust Agreement and (ii) each
Restricted Subsidiary to execute and deliver an "Additional Guarantee" under and
pursuant to the Trust Agreement.
(e) Promptly execute, acknowledge and deliver any and all
further documents, financing statements, agreements and instruments, and
thereafter register, file or record or take further actions (including filing
Uniform Commercial Code and other financing statements, mortgages and deeds of
trust), in each case at the Borrower's sole expense, that may be required under
applicable law, or that the Requisite Lenders, the Agent or the Trustees may
reasonably request, to effectuate the transactions contemplated by the Loan
Documents and to grant, preserve, protect and perfect the validity and first
priority of the Liens created or intended to be created by the Security
Documents, including such Liens on the Mortgaged Properties, and the Direct-Lien
Assets (other than Excluded Assets) and all the Capital Stock of each Restricted
Subsidiary held by the Borrower or any other Subsidiary.
5.10 Delivery of Certain Amendments. Promptly deliver any
amendments, supplements or other modifications to any of the partnership
agreements of the Borrower, WirelessCo, EquipmentCo, RealtyCo, Holding and
MinorCo, the Trademark License Agreement, the Capital Contribution Agreement, a
Bank Credit Facility, any other facilities or indentures which evidence Secured
Obligations, except in the case of a Bank Credit Facility or any such other
facilities or indentures provisions thereof the disclosure of which would be
prohibited by confidentiality agreements binding upon the Borrower.
5.11 Use of Proceeds. Use the proceeds of the Loans only
for the purposes set forth in subsection 2.17.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments
remain in effect or any amount is owing to any Lender under this Agreement or
any other Loan Document, the Borrower shall not, and (except with respect to
subsection 6.1(a) through (e)) shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Total Debt to Total Capitalization. Permit the ratio of
(i) Total Debt outstanding on any of the dates set forth below to (ii) Total
Capitalization on such date to exceed the ratio set forth opposite such date:
========================= ===========================
Date Ratio
========================= ===========================
12/31/96 .50 to 1
========================= ===========================
3/31/97 .55 to 1
========================= ===========================
6/30/97 .55 to 1
========================= ===========================
9/30/97 .57 to 1
========================= ===========================
12/31/97 .57 to 1
========================= ===========================
3/31/98 .60 to 1
========================= ===========================
6/30/98 .61 to 1
========================= ===========================
9/30/98 .61 to 1
========================= ===========================
12/31/98 .61 to 1
========================= ===========================
3/31/99 .62 to 1
========================= ===========================
6/30/99 .64 to 1
========================= ===========================
9/30/99 .66 to 1
========================= ===========================
12/31/99 .68 to 1
========================= ===========================
3/31/00 .69 to 1
========================= ===========================
6/30/00 .69 to 1
========================= ===========================
9/30/00 .70 to 1
========================= ===========================
12/31/00 .70 to 1
========================= ===========================
3/31/01 .70 to 1
========================= ===========================
6/30/01 .70 to 1
========================= ===========================
9/30/01 .70 to 1
========================= ===========================
12/31/01 .70 to 1
========================= ===========================
(b) Total Debt to Annualized Adjusted EBITDA. Permit the ratio
of (i) Total Debt outstanding on any of the dates set forth below to (ii)
Annualized Adjusted EBITDA for the period ending on such date to exceed the
ratio set forth opposite such date:
=========================== =========================
Date Ratio
=========================== =========================
12/31/98 23.0 to 1
=========================== =========================
3/31/99 14.0 to 1
=========================== =========================
6/30/99 10.0 to 1
=========================== =========================
9/30/99 8.0 to 1
=========================== =========================
12/31/99 6.0 to 1
=========================== =========================
3/31/00 5.0 to 1
=========================== =========================
6/30/00 4.5 to 1
=========================== =========================
9/30/00 4.0 to 1
=========================== =========================
12/31/00 4.0 to 1
=========================== =========================
(c) Total Debt to Annualized EBITDA. Permit the ratio of (i)
Total Debt outstanding on any of the dates set forth below to (ii) Annualized
EBITDA for the period ending on such date to exceed the ratio set forth opposite
such date:
=========================== =========================
Date Ratio
=========================== =========================
12/31/00 11.0 to 1
=========================== =========================
3/31/01 8.5 to 1
=========================== =========================
6/30/01 7.5 to 1
=========================== =========================
9/30/01 7.0 to 1
=========================== =========================
12/31/01 6.0 to 1
=========================== =========================
The last day of
each fiscal quarter
end thereafter 5.0 to 1
=========================== =========================
(d) Annualized EBITDA to Interest Expense. Permit the ratio of
(i) Annualized EBITDA for the period ending on any of the dates set forth below
to (ii) Interest Expense for the four consecutive fiscal quarters ending on such
date to be less than the ratio set forth opposite such date:
============================= =======================
Date Ratio
============================= =======================
3/31/01 1.25 to 1
============================= =======================
6/30/01 1.25 to 1
============================= =======================
9/30/01 1.50 to 1
============================= =======================
12/31/01 2.00 to 1
============================= =======================
3/31/02 2.25 to 1
============================= =======================
6/30/02 2.25 to 1
============================= =======================
The last day of
each fiscal quarter
end thereafter 2.50 to 1
============================= =======================
(e) Capital Expenditures. Permit Capital Expenditures for
any of the periods set forth below to exceed the amount set forth opposite such
period:
Period Amount
------------------------- ---------------
Date of formation of the
Borrower through 12/31/98 $4,500,000,000
1/1/99 through 12/31/99 1,000,000,000
1/1/00 through 12/31/00 1,000,000,000
1/1/01 through 12/31/01 1,000,000,000;
provided that any permitted amount which is not expended in any of the periods
specified above may be carried over for expenditure in any subsequent period.
(f) Covered Pops. Incur any Indebtedness (other than
Indebtedness permitted by paragraphs (b) and (i) of subsection 6.2) or Guarantee
Obligations in respect of Indebtedness (other than Guarantee Obligations
permitted by paragraph (b) of subsection 6.4) at any time after any of the dates
set forth below if the number of Covered Pops on the last of such dates prior to
the date of such incurrence is less than the number set forth opposite such last
prior date:
Date Number
---------- -------------
12/31/97 80,000,000
12/31/98 95,000,000
12/31/99 105,000,000
12/31/00 110,000,000
(g) Wireless Subscribers. Incur any Indebtedness (other than
Indebtedness permitted by paragraphs (b) and (i) of subsection 6.2) or Guarantee
Obligations in respect of Indebtedness (other than Guarantee Obligations
permitted by paragraph (b) of subsection 6.4) at any time after any of the dates
set forth below if the average of the numbers of Wireless Subscribers in
existence on the last of such dates prior to the date of such incurrence and on
the last day of each of the three previous calendar quarters is less than the
number set forth opposite such last prior date:
Date Number
---------- -------------
12/31/97 450,000
6/30/98 850,000
12/31/98 1,350,000
6/30/99 2,300,000
12/31/99 3,500,000;
provided that so long as the failure of the Vendor to perform its obligations
under the Vendor Procurement Contract shall cause clause (b) of the definition
of the term "Covered Pops" to become operable, each relevant number set forth
above shall be reduced by a proportion equal to the ratio of (i) the number of
Pops described in said clause (b) to (ii) the then aggregate number of Owned
Pops.
6.2 Limitation on Indebtedness. Incur or suffer to exist
any Indebtedness, except (subject to the provisions of subsections 6.1(f) and
(g)):
(a) Indebtedness of the Borrower under this Agreement or any
other Loan Documents;
(b) Indebtedness of the Borrower to any Restricted Subsidiary
(other than any Special Purpose Subsidiary) and of any Restricted
Subsidiary (other than any Special Purpose Subsidiary) to the Borrower
or any other Restricted Subsidiary (other than any Special Purpose
Subsidiary);
(c) (i) Indebtedness of the Borrower and any of its Restricted
Subsidiaries (other than the Special Purpose Subsidiaries) incurred to
finance the acquisition, construction, expansion or improvement of
property or assets, whether pursuant to a loan, a Financing Lease or
otherwise, (ii) Indebtedness constituting obligations of the Borrower
and its Restricted Subsidiaries (other than the Special Purpose
Subsidiaries) under Financing Leases arising out of sale-leaseback
transactions, and (iii) (A) Indebtedness of a Person that is acquired
by the Borrower or a Restricted Subsidiary (other than a Special
Purpose Subsidiary), and which becomes a Restricted Subsidiary, after
the date of this Agreement, (B) Indebtedness of an Unrestricted
Subsidiary which becomes a Restricted Subsidiary after the date of this
Agreement and (C) Indebtedness secured by property or assets acquired
by the Borrower or any Restricted Subsidiary after the date of this
Agreement, provided that such Indebtedness exists at the time such
Person becomes a Restricted Subsidiary or such property or assets are
acquired, as the case may be, and is not created in anticipation
thereof; provided, however, that the aggregate principal amount of
Indebtedness permitted by clauses (i), (ii) and (iii) of this paragraph
at any one time outstanding shall not exceed 5% of then Total
Capitalization;
(d) Indebtedness of the Borrower under a Bank Credit
Facility;
(e) Indebtedness of the Borrower under a "Vendor Credit
Facility" (as defined in the Trust Agreement) established by a vendor
which shall have agreed to supply to the Borrower and its Restricted
Subsidiaries a material amount of equipment (other than handsets) and
services comprising or relating to property or assets to be utilized in
connection with the Borrower's national wireless telecommunications
network;
(f) Indebtedness of the Borrower Incurred to finance the ac-
quisition of handsets;
(g) Indebtedness of the Borrower and its Restricted
Subsidiaries (other than any Special Purpose Subsidiary) in existence
on the date of this Agreement and listed on Schedule 6.2(g);
(h) the High Yield Debt;
(i) Indebtedness of the Borrower and its Restricted
Subsidiaries which is a Permitted Refinancing or refinances, replaces
or refunds Indebtedness permitted pursuant to subsection 6.2(a), (c),
(e) (but only to the extent of Indebtedness other than Indebtedness
incurred under the Other Vendor Credit Facility), (f) through (h), and
(j), provided that the Indebtedness that shall result from such
Permitted Refinancing, refinancing, replacement or refunding does not
increase the outstanding principal amount of the Indebtedness which was
the subject of such Permitted Refinancing, refinancing, replacement or
refunding; and
(j) additional Indebtedness of the Borrower and its Restrict-
ed Subsidiaries (other than any Special Purpose Subsidiary);
provided that neither the Borrower nor any Restricted Subsidiary shall be
permitted to Incur any of the Indebtedness referred to in paragraphs (a), (c)
through (f), (h), (i) and (j) of this subsection unless, after giving effect
thereto, the Borrower would be in Pro Forma Compliance.
6.3 Limitation on Liens. Incur or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired or upon the income or profits therefrom except for:
(a) Liens for taxes not yet due or which are being contested
in good faith by appropriate proceedings, provided that adequate
reserves with respect thereto are maintained on the books of the
Borrower or its Restricted Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith by appropriate proceedings;
(c) pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other social security legislation and deposits securing
liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, do not materially detract from the value of the property of
the Borrower and its Restricted Subsidiaries taken as a whole or
materially interfere with the ordinary conduct of the business of the
Borrower and its Restricted Subsidiaries taken as a whole;
(f) Liens (other than Liens on the property of the Special
Purpose Subsidiaries) securing Indebtedness of the Borrower and its
Restricted Subsidiaries permitted by subsection 6.2(c)(i) Incurred with
respect to the property and assets described in said subsection,
provided that (i) such Liens and the Indebtedness secured thereby are
incurred prior to or within 270 days after the acquisition,
construction, expansion or improvement to which such Indebtedness
relates, (ii) the Indebtedness secured by such Liens does not exceed
100% of the cost of the acquisition, construction, expansion or
improvement financed therewith and (iii) such Liens do not at any time
encumber any property or assets other than the property and assets with
respect to which such Indebtedness is Incurred;
(g) Liens (other than Liens on the property of the Special
Purpose Subsidiaries) securing Indebtedness of the Borrower and its
Restricted Subsidiaries (other than the Special Purpose Subsidiaries)
permitted by subsection 6.2(c)(ii), provided that (i) such Liens and
the Indebtedness secured thereby are Incurred within 270 days after the
purchase by the Borrower or such Restricted Subsidiary of the property
or assets which is or are the subject of the sale-leaseback transaction
to which such Indebtedness relates, (ii) the Indebtedness secured by
such Liens does not exceed 100% of the purchase price of such property
or assets and (iii) such Liens do not at any time encumber any property
or assets other than the assets that are the subject of such
sale-leaseback;
(h) Liens on the property or assets of a Person which becomes
a Restricted Subsidiary after the date of this Agreement or on property
or assets acquired by the Borrower or any Restricted Subsidiary after
the date of this Agreement, in each case securing Indebtedness
permitted by subsection 6.2(c)(iii), provided that (i) such Liens exist
at the time such Person becomes a Restricted Subsidiary or such
property or assets are acquired, as the case may be, and are not
created in anticipation thereof and (ii) any such Lien is not extended
to cover any property or assets of such Person or any other property or
assets of the Borrower or such Restricted Subsidiary, as the case may
be, after the time such Person becomes a Restricted Subsidiary or such
property or assets are acquired, as the case may be;
(i) Liens in existence on the date of this Agreement and
securing Indebtedness permitted by subsection 6.2(g), provided that no
such Lien is extended to cover any additional property after the date
of this Agreement and that the amount of Indebtedness secured thereby
is not increased and no such Lien is extended to cover any property or
assets of any Special Purpose Subsidiary;
(j) Liens created pursuant to the Security Documents;
(k) Liens of attachments, judgments or awards against the
Borrower or its Restricted Subsidiaries, as the case may be, with
respect to which an appeal or proceeding for review shall be pending or
a stay of execution shall have been obtained, or which are otherwise
being contested in good faith and by appropriate proceedings diligently
conducted, and in respect of which adequate reserves shall have been
established in accordance with GAAP on the books of the Borrower or
such Restricted Subsidiary;
(l) restrictions on the transfer of assets imposed by any of
the Licenses or by the Communications Act or any other Requirement of
Law;
(m) leases or subleases granted to others not interfering in
any material respect with the business of the Borrower and its
Restricted Subsidiaries taken as a whole and any interest or title of a
lessor under any lease not prohibited by this Agreement;
(n) the filing of financing statements regarding leases not
prohibited by this Agreement;
(o) ground leases in respect of real property on which facil-
ities owned or leased by the Borrower or its Restricted Subsidiaries
are located;
(p) Liens on goods (and the documents of title related
thereto) the purchase price of which is financed by a documentary
letter of credit issued for the account of the Borrower or its
Restricted Subsidiaries (other than any Special Purpose Subsidiary),
provided that such Lien secures only the obligations of the Borrower or
such Restricted Subsidiaries in respect of such letter of credit;
(q) Liens on shares of the Capital Stock of Unrestricted Sub-
sidiaries; and
(r) additional Liens (other than Liens on any property of any
Special Purpose Subsidiary) which secure obligations and liabilities of
the Borrower and its Restricted Subsidiaries (other than with respect
to custom software to the extent the obligations secured by such Lien
exceed $25,000,000) not exceeding $100,000,000 in the aggregate at any
time outstanding.
6.4 Limitation on Guarantee Obligations. Incur or suffer
to exist any Guarantee Obligation except:
(a) Guarantee Obligations in existence on the date of this
Agreement and listed on Schedule 6.4(a);
(b) Guarantee Obligations incurred in the ordinary course of
its business by the Borrower and its Restricted Subsidiaries (other
than any Special Purpose Subsidiary) in respect of Indebtedness and
other obligations and liabilities of the Borrower and its Restricted
Subsidiaries (other than any Special Purpose Subsidiary) not prohibited
by this Agreement;
(c) Guarantee Obligations of the Borrower and its Restricted
Subsidiaries (other than any Special Purpose Subsidiary) in respect of
the undrawn portion of the face amount of letters of credit issued for
the account of the Borrower or any Restricted Subsidiary (other than
any Special Purpose Subsidiary) in the ordinary course of business;
(d) the Guarantees; and
(e) additional Guarantee Obligations of the Borrower and its
Restricted Subsidiaries (other than any Special Purpose Subsidiary) not
exceeding $50,000,000 in the aggregate at any time outstanding;
provided that neither the Borrower nor any Restricted Subsidiary shall be
permitted to create, incur or assume any of the Guarantee Obligations referred
to in paragraphs (c) and (e) of this subsection unless, after giving effect
thereto, the Borrower would be in Pro Forma Compliance.
6.5 Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, liquidate or wind up and terminate itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except that, so long as, after giving effect thereto, the Borrower would
be in Pro Forma Compliance:
(a) any Restricted Subsidiary (other than any Special Purpose
Subsidiary) may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving
entity) or with or into any one or more other Wholly Owned Restricted
Subsidiaries (other than with or into any Special Purpose Subsidiary)
(provided that the Wholly Owned Restricted Subsidiary or Restricted
Subsidiaries shall be the continuing or surviving entity or entities);
(b) any Wholly Owned Restricted Subsidiary (other than any
Special Purpose Subsidiary) may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Borrower or any one or more other Wholly Owned
Restricted Subsidiaries;
(c) the Borrower may merge or consolidate with any corporation
with the result that the Borrower shall become a corporation if (i)
after giving effect thereto the Borrower shall be in Pro Forma
Compliance (calculated as if such merger or consolidation had occurred
at the end of the then most recently ended fiscal quarter for which
financial statements shall have been delivered to the Lenders pursuant
to subsection 5.1), (ii) such merger or consolidation could not
reasonably be expected to have a Material Adverse Effect (it being
agreed that the fact that the Borrower would then be subject to the
payment of income taxes as a corporation shall not, in and of itself,
be deemed to constitute a Material Adverse Effect) and (iii) the
following other conditions shall be satisfied: (A) in the case such
merger or consolidation shall occur prior to the Public Offering Date,
the Parents shall have entered into an agreement in favor of the
Trustee pursuant to which they will agree that, until the Public
Offering Date, they will make capital contributions to the Borrower in
amounts equal to the excess, if any, of the amount of income taxes
payable by the Borrower (as a corporation) over the amount of
Restricted Payments that could have been made during the period (the
"Relevant Period") from the date of such merger or consolidation
through the final maturity of the Loans pursuant to subsection 6.7(a)
if the Borrower had remained a partnership during such period, (B) in
the case such merger or consolidation shall occur on or after the
Public Offering Date, the Borrower shall have delivered to the Agent a
certificate executed by a Responsible Officer to the effect that the
amount of Federal, state and local income and franchise taxes based
upon income reasonably projected to be payable by the Borrower as a
corporation after such merger or consolidation will not be materially
greater than the sum of (1) the aggregate amount of Restricted Payments
that could be made during the Relevant Period pursuant to subsection
6.7(a) if the Borrower had remained a partnership during the Relevant
Period (based on reasonable projections but without regard to clause
(ii) of the proviso to subsection 6.7(a)) and (2) the aggregate amount
of taxes based upon income that would have been payable by the Borrower
during the Relevant Period if the Borrower had remained a partnership
during the Relevant Period, (C) any write-offs and other deductions
which shall have been made in connection with any tax returns filed by
the Borrower prior to such merger or consolidation shall have been
consistent with past practice and the Borrower shall have delivered to
the Agent a certificate executed by a Responsible Officer so certifying
and (D) neither the Borrower nor the Parents shall have taken any
unreasonable action with the effect of decreasing the income of the
Borrower prior to such merger or consolidation and increasing the
future income of the Borrower after such merger or consolidation and
the Borrower shall have delivered to the Agent a certificate executed
by a Responsible Officer so certifying; and
(d) the Borrower or any Restricted Subsidiary (other
than a Special Purpose Subsidiary) may effect pursuant to a merger or
consolidation any Investment permitted by subsection 6.8(c) or (d) so
long as the Borrower or such Restricted Subsidiary is the surviving
entity.
6.6 Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Restricted Subsidiary,
issue or sell any shares of such Restricted Subsidiary's Capital Stock to any
Person other than any such issue or sale of shares of Capital Stock to the
Borrower or (except in the case of shares of Capital Stock of a Special Purpose
Subsidiary) any Wholly Owned Restricted Subsidiary, except:
(a) the sale or other disposition of inventory or any other
property in the ordinary course of business (provided that no sale of a
License or any System shall be considered to be in the ordinary course
of business);
(b) as permitted by subsection 6.5(b);
(c) so long as after giving effect thereto the Borrower is in
Pro Forma Compliance, any Asset Sale (other than any sale of
receivables permitted by subsection 6.6(f)) the aggregate fair market
value of the property and assets that are the subject of which is equal
to or less than $25,000,000; provided that if the aggregate fair market
value of the property and assets sold or otherwise disposed of pursuant
to this paragraph during any period of two consecutive calendar years
shall exceed $100,000,000, the Net Cash Proceeds of such excess
property and assets, to the extent not applied to purchase other
property or assets to be utilized in connection with the Borrower's
national wireless telecommunications network within 270 days from the
date of the applicable Asset Sale, shall be applied to effect a Pro
Rata Prepayment/Commitment Reduction;
(d) so long as after giving effect thereto the Borrower is in
Pro Forma Compliance, any Asset Sale (other than any sale of
receivables permitted by subsection 6.6(f)) the aggregate fair market
value of the property and assets that are the subject of which are in
excess of $25,000,000, provided that, (i) if such Asset Sale includes
one or more Licenses and, after giving effect thereto, the then
aggregate number of Owned Pops would be less than 120,000,000, such
Asset Sale shall have been approved by the Requisite Aggregate Lenders,
(ii) to the extent the Net Cash Proceeds of such Asset Sale are in
excess of $100,000,000, such excess Net Cash Proceeds shall be
deposited in the Asset Sale Proceeds Sub-Account, from which the
Borrower may withdraw and apply such funds, together with all earnings
thereon, to the purchase, within 270 days from the date of the
applicable Asset Sale, of other property or assets to be utilized in
connection with the Borrower's national wireless telecommunications
network, (iii) the Borrower may apply such Net Cash Proceeds (whether
or not required to be deposited in the Asset Sale Proceeds Sub-Account
as described above) to purchase other property or assets to be utilized
in connection with the Borrower's national wireless telecommunications
network if the Borrower shall (A) notify the Agent reasonably promptly
following the completion of such Asset Sale that it intends to do so
and (B) deliver to the Agent evidence that the Borrower has, within 270
days from the date of such Asset Sale, in fact done so and (iv) if and
to the extent that the aggregate amount of the Net Cash Proceeds of all
such Asset Sales described in this paragraph that are not used as
specified in clause (iii) of this proviso, such amount shall be applied
to effect a Pro Rata Prepayment/Commitment Reduction;
(e) so long as after giving effect thereto the Borrower is in
Pro Forma Compliance, any Asset Swap, provided that, if and to the
extent that the Borrower and its Restricted Subsidiaries receive
consideration for the System or Systems transferred by them in
connection with such Asset Swap that is in addition to the System or
Systems received in exchange therefor, such Asset Swap shall be deemed
to be an Asset Sale and shall be permitted only if the provisions of
subsection 6.6(c) or 6.6(d) (whichever shall be applicable) shall be
complied with in connection therewith;
(f) sales of trade receivables, provided the consideration
received for each such sale shall consist solely of cash and provided,
further, that the Net Cash Proceeds thereof shall be used (i) to effect
a Pro Rata Prepayment/Commitment Reduction, (ii) to prepay Indebtedness
then outstanding under a Bank Credit Facility or (iii) for the general
purposes of the Borrower and its Restricted Subsidiaries;
(g) as permitted by subsection 6.7;
(h) the sale of any shares of the Capital Stock of any Unre-
stricted Subsidiary; and
(i) the sale of any asset in connection with any sale and
leaseback transaction, provided (i) that such sale occurs within 270
days after the purchase by the Borrower or such Restricted Subsidiary
of such asset and (ii) in the case of any such sale and leaseback
transaction pursuant to an operating lease, the asset subject to such
sale and leaseback transaction was not acquired with the Net Cash
Proceeds of any Asset Sale that the Borrower would have been required
to apply to effect a Pro Rata Prepayment/Commitment Reduction if such
Net Cash Proceeds had not been applied to purchase such asset;
provided, that in each case described in paragraphs (c) and (d), and, to the
extent an Asset Sale is involved, (e) of this subsection, the consideration
received by the Borrower or its Restricted Subsidiaries for such Asset Sale
shall be cash, Cash Equivalents, promissory notes, other deferred payment
obligations and property or assets to be utilized in connection with the
Borrower's national wireless telecommunications network, provided, further, that
at least 80% of such consideration shall consist of cash, Cash Equivalents
and/or property or assets to be utilized in connection with the Borrower's
national wireless telecommunications network, and provided, still further, that
the aggregate outstanding principal amount of such promissory notes and other
deferred payment obligations held by the Borrower and its Restricted
Subsidiaries shall not exceed $250,000,000 at any time.
6.7 Limitation on Restricted Payments. Pay any distributions
(other than distributions payable solely in Capital Stock of the Borrower) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of the Borrower or any Restricted Subsidiary
or any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, either directly or indirectly, whether in cash or
property or in obligations of the Borrower or any Restricted Subsidiary (such
payments, prepayments, distributions, setting apart, purchases, redemptions,
defeasances, retirements and acquisitions and distributions being herein called
"Restricted Payments"), except that (x) the Borrower may make any Restricted
Payment constituting a distribution of any ownership interest it may hold in
APC, (y) any Restricted Subsidiary may make cash distributions to the Borrower
and (z) if, after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing or would result therefrom, the Borrower may make
Restricted Payments:
(a) to the extent of the amount of Federal, state and local
income taxes assumed to be payable by the Borrower in any fiscal year
in respect of the income of the Borrower and its Subsidiaries for such
fiscal year if the Borrower were a corporation subject to taxation as
such for such year (calculated at the maximum applicable Federal
corporate income tax rate plus an assumed state and local tax rate of
5%), provided that (i) nothing in this paragraph shall be deemed to
permit any such Restricted Payment for the purpose of paying any tax
liabilities of the Parents resulting from the conversion of the
Borrower from partnership to corporate form and (ii) no Restricted
Payment shall be permitted under this paragraph (a) unless, after
giving effect thereto, the Special Payment Condition shall be satisfied
and provided, further, that no such Restricted Payment may be made
pursuant to this paragraph with respect to taxes in respect of the
income of any Unrestricted Subsidiaries except to the extent that the
Borrower and/or its Restricted Subsidiaries shall have received cash
distributions from Unrestricted Subsidiaries with respect to such
taxes;
(b) to the extent necessary to provide the issuer of any
Specified Affiliate Debt with amounts sufficient to pay principal,
interest and other amounts then payable in respect of such Specified
Affiliate Debt, if after giving effect to such distribution, the
Borrower is in Pro Forma Compliance; and
(c) to the extent that (i) after giving effect thereto, the
Special Payment Condition shall be satisfied and (ii) the Borrower
shall have made a Pro Rata Payment Offer in an amount equal to such
Restricted Payment.
6.8 Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase any
stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in (such advances,
loans, extensions of credit, capital contributions, purchases and investments
being herein called "Investments"), any Person, except:
(a) extensions of trade credit in the ordinary course of bus-
iness;
(b) Investments in Cash Equivalents;
(c) Investments by the Borrower or any Restricted Subsidiary
(other than a Special Purpose Subsidiary) in Persons engaged in the
telecommunications business or businesses related thereto, provided
that (i) such Person, if it shall be a Subsidiary, shall become a
Restricted Subsidiary unless (A) such Person or assets shall be
acquired with (I) proceeds of capital contributed to the Borrower
expressly for such purpose and/or (II) funds of the Borrower in such
amount that, after giving effect thereto, the Special Payment Condition
shall be satisfied, provided that the Borrower shall have made a Pro
Rata Payment Offer in an amount equal to such Investment and (B) the
Borrower designates such Person, by notice to the Administrative Agent,
as an Unrestricted Subsidiary and (ii) after giving effect to such
Investment, the Borrower is in Pro Forma Compliance; and provided,
further, that the aggregate amount of cash expended, plus the aggregate
book value of any assets transferred, by the Borrower and its
Restricted Subsidiaries in connection with Investments permitted under
this paragraph in Persons that are not Restricted Subsidiaries shall
not exceed $100,000,000;
(d) Investments by the Borrower or any Restricted Subsidiary
(other than a Special Purpose Subsidiary) in Persons not engaged in the
telecommunications business or businesses related thereto if, after
giving effect thereto, the aggregate amount of such Investments then
held by the Borrower and its Restricted Subsidiaries does not exceed 5%
of then Total Capitalization; provided that (i) such Person, or the
Person which shall become the owner of any assets acquired in
connection with such Investment, shall become a Restricted Subsidiary
unless (A) such Person or assets shall be acquired with (I) proceeds of
capital contributed to the Borrower expressly for such purpose and/or
(II) funds of the Borrower in such amount that after giving effect
thereto, the Special Payment Condition shall be satisfied, provided
that the Borrower shall have made a Pro Rata Payment Offer in an amount
equal to such Investment and (B) the Borrower designates such Person,
by notice to the Agent, an Unrestricted Subsidiary and (ii) after
giving effect to such Investment, the Borrower is in Pro Forma
Compliance;
(e) Investments by the Borrower or any Restricted Subsidiary
(other than a Special Purpose Subsidiary) arising from the acquisition
of any System or Systems in connection with any Asset Swap, provided
that, (i) to the extent that the Borrower and its Restricted
Subsidiaries give consideration for the System or Systems acquired by
them in connection with such Asset Swap that is in addition to the
System or Systems transferred by them in exchange therefor, such Asset
Swap shall be deemed to constitute an Investment and shall be permitted
only if the provisions of subsection 6.6(e) and 6.8(c) shall be
complied with in connection therewith and (ii) after giving effect to
such Investment, the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its
Restricted Subsidiaries in an aggregate principal amount outstanding
not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries
and Investments by any Restricted Subsidiary (other than any Special
Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary
(other than the Special Purpose Subsidiaries) in any other Restricted
Subsidiary; and
(h) promissory notes and other deferred payment obligations
that constitute proceeds of Asset Sales that are permitted by
subsection 6.6.
6.9 Limitation on Transactions with Affiliates. Enter into any
transaction or agreement, or participate in any arrangement, including, without
limitation, any purchase, sale, lease or exchange of property or the rendering
of any service, with any Affiliate unless such transaction, agreement or
arrangement is (a) not prohibited by this Agreement, (b) in the ordinary course
of the Borrower's or such Restricted Subsidiary's business, and (c) upon terms
no less favorable to the Borrower or such Restricted Subsidiary, as the case may
be, than those that could be obtained on an arm's length basis from a Person
which is not an Affiliate.
6.10 Limitation on Lines of Business; Liabilities of
Subsidiaries. (a) Enter into any business, either directly or through any
Restricted Subsidiary, except for the telecommunications business and businesses
which are related thereto and in any business which the Borrower or any
Restricted Subsidiary enters into as a result of an Investment permitted
pursuant to subsection 6.8(d).
(b) Permit WirelessCo to incur any material liabilities (other
than the Guarantee executed by it) or to engage in any business or activities
other than the holding of Licenses.
(c) Permit EquipmentCo to incur any material liabilities
(other than the Guarantee executed by it and liabilities under the Vendor
Procurement Contracts) or to engage in any business or activities other than the
owning of Personal Property Assets and the leasing thereof to the Borrower.
(d) Permit RealtyCo to incur any material liabilities (other
than the Guarantee executed by it and other liabilities incurred in the ordinary
course of business which are incident to being the owner or lessee of real
property) or to engage in any business or activities other than the owning or
leasing, as lessee, of Real Estate Assets and the leasing, as lessor, or, as the
case may be, subleasing, as sublessor, thereof to the Borrower.
6.11 Limitation on Designation of Secured Obligations.
Designate any Indebtedness as Secured Obligations under the Trust Agreement
other than (a) the Loans, (b) any Bank Credit Facility, (c) the Other Vendor
Credit Facility, (d) Interest Rate Agreement Obligations, (e) Indebtedness
permitted to be incurred pursuant to subsections 6.2(e) and (f), provided that
the aggregate amount of Indebtedness permitted pursuant to subsection 6.2(f)
that can be designated as Secured Obligations under the Trust Agreement pursuant
to this subsection 6.11 shall not exceed $500,000,000 and (f) Indebtedness of
the Borrower and its Restricted Subsidiaries which refinances, replaces or
refunds Indebtedness described in the foregoing clauses (a) through (e),
provided that the Indebtedness that shall result from such refinancing,
replacement or refunding does not increase the outstanding principal amount of
the Indebtedness which was the subject of such refinancing, replacement or
refunding. Notwithstanding the foregoing, in no event may the Borrower designate
as Secured Obligations under the Trust Agreement any Indebtedness which is owed
to any of the Parents or any other Affiliate of the Borrower or any Indebtedness
which is guaranteed by any of the Parents or any other Affiliate of the Borrower
or which benefits from any other credit enhancement provided directly or
indirectly by any of the Parents or any Affiliate of the Borrower unless, solely
in the case of any such Indebtedness guaranteed or benefitted, (a) such
Indebtedness refinances, replaces or refunds, or constitutes, Indebtedness
permitted under subsection 6.2(d) or (e), and (b) the Lenders shall have been
given the option to have the Loans and the other obligations and liabilities
owing to them hereunder and under the other Loan Documents receive the benefits
of such a guarantee or other credit enhancement on substantially identical terms
and conditions.
6.12 Limitation on Interest Rate Agreements. Enter into
any Interest Rate Agreement other than to protect against fluctuations in in-
terest rates and not for speculative purposes.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan
when such principal becomes due in accordance with the terms hereof,
whether at the stated maturity thereof or as a result of the mandatory
prepayment provisions of subsection 2.5; or the Borrower shall fail to
pay any interest on any Loan, or any other amount payable hereunder,
within five days after any such interest or other amount becomes due in
accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by the
Borrower or any other Loan Party in this Agreement or in any other Loan
Document shall prove to have been incorrect in any material respect on
or as of the date made or deemed made and, if capable of remedy the
facts or circumstances resulting in such breach shall not be altered
within a period of 30 days such that such representation or warranty is
no longer incorrect in any material respect; or
(c) the Borrower or any other Loan Party shall default in the
observance or performance of any covenant or agreement contained in
this Agreement or any other Loan Document (other than as provided in
paragraphs (a) and (b) of this Section), and such default shall
continue unremedied for a period of 30 days after the earlier of (i)
the first date on which a Responsible Officer learns of such default
and (ii) receipt by the Borrower of notice thereof from the Agent or
any Lender; or
(d) the Borrower or any Restricted Subsidiary shall (i)
default in any payment of principal of or interest under the Existing
Bank Credit Facility or on any other Indebtedness (other than the
Loans) or Guarantee Obligation in respect of Indebtedness or any
Interest Rate Agreement Obligation beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness,
Guarantee Obligation or Interest Rate Agreement Obligation was created;
or (ii) default in the observance or performance of any other agreement
or condition under the Existing Bank Credit Facility or relating to any
such Indebtedness, or any other event shall occur or condition exist,
the effect of which is to cause, or to permit the holder or holders of
such Indebtedness, Guarantee Obligation or Interest Rate Agreement
Obligation (or a trustee or agent on behalf of such holder or holders)
to cause, with the giving of notice if required, such Indebtedness,
Guarantee Obligation or Interest Rate Agreement Obligation to become
due prior to its stated maturity; provided, however, that no Event of
Default shall occur under this paragraph (d) with respect to events
other than events under the Existing Bank Credit Facility unless the
aggregate principal amount of Indebtedness or Guarantee Obligations, or
the aggregate amount of Interest Rate Agreement Obligations, in respect
of which any such default or defaults shall occur is then outstanding
in an aggregate principal amount in excess of the lesser of (A)
$50,000,000 and (B) 10% of the sum of the aggregate then outstanding
principal amount of all Indebtedness and Guarantee Obligations and
aggregate then outstanding Interest Rate Agreement Obligations of the
Borrower and its Restricted Subsidiaries; or
(e) (i) the Borrower, any Restricted Subsidiary or (so long as
the Borrower remains a partnership) Holding shall commence any case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for
it or for all or any substantial part of its assets, or the Borrower,
any Restricted Subsidiary or (so long as the Borrower remains a
partnership) Holding shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower,
any Restricted Subsidiary or (so long as the Borrower remains a
partnership) Holding any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower, any Restricted
Subsidiary or (so long as the Borrower remains a partnership) Holding
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order
for any such relief which shall not have been vacated, discharged, or
stayed or bonded pending appeal within 60 days from the entry thereof;
or (iv) the Borrower, any Restricted Subsidiary or (so long as the
Borrower remains a partnership) Holding shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii) or (iii)
above; or (v) the Borrower, any Restricted Subsidiary or (so long as
the Borrower remains a partnership) Holding shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(f) (i) any Parent shall commence any case, proceeding or
other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief entered with
respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to
it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or
any substantial part of its assets, or any Parent shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Parent any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry
of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against any Parent any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for any such
relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv)
any Parent shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii) or (iii) above; or (v) any Parent shall generally
not, or shall be unable to, or shall admit in writing its inability to,
pay its debts as they become due; provided, however, that no Event of
Default shall occur under this paragraph (f) if (x) all amounts to be
contributed to the capital of the Borrower pursuant to the Capital
Contribution Agreement have been so contributed and have not been
avoided or recaptured under any bankruptcy, insolvency, reorganization
or similar law or (y) within 30 days after an Event of Default would
otherwise occur pursuant to this paragraph (f) as a result of one of
the events enumerated above with respect to any Parent, one or more of
the other Parents shall have assumed all the obligations of such
affected Parent under the Capital Contribution Agreement in writing in
form and substance reasonably satisfactory to the Agent; or
(g) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA or Section 412 of the Code), whether or
not waived, shall exist with respect to any Single Employer Plan or any
Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Requisite Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA
or (v) the Borrower or any Commonly Controlled Entity shall incur any
liability in connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan; and in each case in clauses
(i) through (v) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to have
a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against
the Borrower or any Restricted Subsidiary involving in the aggregate a
liability (not paid or fully covered by third party insurance) of an
amount in excess of the lesser of (A) $50,000,000 and (B) 10% of the
aggregate then outstanding principal amount of all Indebtedness of the
Borrower and its Restricted Subsidiaries on a consolidated basis, and
each such judgment or decree shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry thereof;
or
(i) (i) any of the Security Documents shall cease, for any
reason, to be in full force and effect, or the Borrower or any other
Loan Party which is a party to such Security Document shall so assert
in writing or (ii) except in accordance with the terms thereof or of
any other Loan Document, the Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby; or
(j) any Guarantee shall cease, for any reason, to be in full
force and effect or the Guarantor party thereto shall so assert in
writing; or
(k) the Capital Contribution Agreement shall cease, for any
reason, to be in full force and effect prior to the date on which all
amounts required to be contributed thereunder have been contributed to
the Borrower, or any Parent shall so assert in writing; or
(l) the termination of the Borrower's right to use the
"Sprint" trademark pursuant to the Trademark License Agreement, or any
impairment in the ability of the Borrower to use the "Sprint" trademark
that could reasonably be expected to have a Material Adverse Effect; or
(m) any termination, revocation or non-renewal by the FCC of
one or more Licenses of the Borrower or its Restricted Subsidiaries if,
after giving effect thereto, the aggregate number of Owned Pops is less
than 120,000,000; or
(n) the commencement by the Trustee of foreclosure proceed-
ings with respect to any of the Collateral while a Notice of Enforce-
ment is in effect; or
(o) the failure of the full amount of any required capital
contribution to be made under the Capital Contribution Agreement for a
period of more than 30 days after the date when due; or
(p) any Change in Control;
then, and in any such event, (i) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (e) of this Section with respect to the
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents, if any, shall immediately
become due and payable, and (ii) if such event is any other Event of Default,
either or both of the following actions may be taken: (A) with the consent of
the Requisite Accelerating Creditors, the Agent may, or upon the request of the
Requisite Accelerating Creditors, the Agent shall, by notice to the Borrower
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (B) with the consent of the Requisite
Accelerating Creditors, the Agent may, or upon the request of the Requisite
Accelerating Creditors, the Agent shall, by notice to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents, if any, to be due and payable
forthwith, whereupon the same shall immediately become due and payable. Except
as expressly provided above in this Section, presentment, demand, protest and
all other notices of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Agent as the agent of such Lender under this Agreement and the
other Loan Documents and irrevocably authorizes the Agent, in such capacity, to
take such action on its behalf under the provisions of this Agreement and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement and the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Agent shall not have
any duties or responsibilities to any Lender, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities to any Lender
shall be read into this Agreement or otherwise exist against the Agent. The
Borrower agrees to pay the Agent such compensation for services rendered
hereunder as may be separately agreed between the Borrower and the Agent.
8.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible to any
Lender for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(a) liable to any Lender for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or willful
misconduct) or (b) responsible in any manner to any of the Lenders for any
recitals, statements, representations or warranties made by the Borrower or any
officer thereof contained in this Agreement, any other Loan Document or any
certificate, report, statement or other document referred to or provided for in,
or received by the Agent under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document for any failure of the Borrower to
perform its obligations or satisfy any condition hereunder or thereunder. The
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower.
8.4 Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Loan as the
owner thereof for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the Agent. The Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Requisite Lenders as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request of the Requisite Lenders, and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.
8.5 Notice of Default and Other Notices. The Agent shall not
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default hereunder unless the Agent has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Agent receives such a notice, the Agent shall give notice thereof to the
Lenders. Without limiting the generality of the foregoing or subsection 7.1, the
Agent shall not be required to take any action with respect to any Default or
Event of Default except as expressly provided in Section 7; provided that unless
and until the Agent shall have received such directions, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable in
the best interests of the Lenders. The Agent shall, promptly following its
receipt thereof, notify the Lenders as to the substance of any notice received
by the Agent pursuant to subsections 2.2, 2.4, 2.5, 2.6 or 5.7.
8.6 Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Borrower, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of the Borrower and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such investigation
as it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Agent
in its capacity as such (to the extent not reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), ratably according to
their respective Percentages in effect on the date on which indemnification is
sought, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Loans) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of, the Commitments,
this Agreement, any other Loan Document or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by the Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting solely from the
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Loans and all other amounts payable
hereunder.
8.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrower as though the Agent were not the Agent
hereunder. With respect to the Loans made by it, the Agent shall have the same
rights and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the Agent, and the terms
"Lender" and "Lenders" shall include the Agent in its individual capacity.
8.9 Successor Agent. The Agent may resign as Agent upon 10
days' notice to the Lenders. If the Agent shall resign as Agent under this
Agreement and the other Loan Documents, then the Requisite Lenders shall appoint
a successor agent for the Lenders, which successor agent (provided that it shall
have been approved by the Borrower which approval shall not be unreasonably
withheld) shall succeed to the rights, powers and duties of the Agent. If no
successor agent shall have been appointed by the Requisite Lenders and no such
new agent shall have been appointed within 30 days after the retiring agent
gives notice of resignation, then the retiring agent may on behalf of the
Lenders appoint a successor agent (provided that it shall have been approved by
the Borrower, which approval shall not be unreasonably withheld). Effective upon
such appointment and approval, the term "Agent" shall mean such successor agent,
and the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement or any holders of the Loans. After any retiring
Agent's resignation as Agent, the provisions of this Section shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent
under this Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. (a) Neither this Agreement, any
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
subsection. The Requisite Lenders may, from time to time, (a) enter into with
the Borrower written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or changing in any manner the
rights of the Lenders or of the Borrower hereunder or (b) waive, on such terms
and conditions as the Requisite Lenders may specify in such instrument, any of
the requirements of this Agreement or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Lender's Loans or of any installment thereof, or reduce
the stated rate of any interest or fees payable to such Lender hereunder or
extend the scheduled date of any payment thereof or increase the amount or
extend the expiry date of, any Lender's Commitment, in each case without the
consent of such Lender, (ii) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the definitions of Requisite
Accelerating Creditors, Requisite Aggregate Lenders or Requisite Lenders, or
consent to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement, in each case without the written consent of
all the Lenders, or (iii) amend, modify or waive any provision of Section 8
without the written consent of the then Agent and provided, further, that,
notwithstanding the foregoing, the provisions of Sections 3, 5, 6 and 7 may be
amended, supplemented or modified with, and only with, the consent of the
Borrower and the Requisite Aggregate Lenders (whether or not the Vendor or any
other Lender shall have consented thereto) and compliance with any of the
requirements of said Sections (or any Default or Event of Default (as such terms
are defined in said Sections) resulting from a failure by the Borrower to comply
with such requirements) may be waived with, and only with, the consent of the
Requisite Aggregate Lenders (whether or not the Vendor or any other Lender shall
have consented thereto). Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be binding
upon the Borrower, the Lenders, the Agent and all future holders of the Loans.
In the case of any waiver, the Borrower, the Lenders and the Agent shall be
restored to their former positions and rights hereunder, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
(b) The Trust Agreement, any Guarantee and any Security
Document may only be amended, supplemented or otherwise modified, and any
provision thereof may only be waived, in accordance with subsection 9.3 of the
Trust Agreement, provided, however, that in no event shall any Collateral (other
than any Collateral which is the subject of any Asset Sale permitted by
subsection 6.6) or Guarantee be released without the consent of the Lenders
whose Percentages aggregate at least 75% as provided in subsection 9.19, and no
action described in clause (i) of the proviso in subsection 9.3(a) of the Trust
Agreement may be taken without the consent of Lenders whose Percentages
aggregate at least 75%.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand or
by courier, when delivered, (b) in the case of delivery by mail, five days after
being deposited in the mails, first class postage prepaid, or (c) in the case of
delivery by facsimile transmission, when received in legible form, addressed as
follows in the case of the Borrower, the Vendor and the Agent, and in the case
of the other parties hereto, to such other address as may be hereafter notified
by the respective parties hereto:
The Borrower: Sprint Spectrum L.P.
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
with a copy to:
Sprint Spectrum L.P.
0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
The Vendor: Northern Telecom Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Vice President, Finance
Wireless Networks
Vice President, Customer
Finance,
North America
Fax: (000) 000-0000
(000) 000-0000
The Agent: Northern Telecom Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx 00000
Attention: Vice President, Finance
Wireless Networks
Vice President, Customer
Finance, North America
Fax: (000) 000-0000
(000) 000-0000
provided that any notice, request or demand to or upon the Agent or the Lenders
pursuant to subsection 2.2, 2.4, 2.6 or 2.12(b) shall not be effective until
received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Lender, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document, certificate
or statement delivered pursuant hereto or in connection herewith shall be
considered to have been relied upon by the Lenders, notwithstanding any
investigation made by the Lenders and the Agent, and shall not be prejudiced by
but shall survive the execution and delivery of this Agreement and the making of
the Loans hereunder.
9.5 Payment of Expenses and Taxes; Indemnity. The Vendor and
each other Lender will bear all its respective costs in connection with this
Agreement, except that (a) the Borrower agrees to pay or reimburse the Agent for
all its reasonable costs and expenses incurred by the Agent in connection with
the enforcement of any rights under this Agreement and the other Loan Documents,
including, without limitation, the reasonable fees and disbursements of one, and
only one, counsel to the Agent and the Lenders and (b) the Borrower shall pay or
reimburse the Agent, to the extent agreed by the Borrower and the Agent, for
costs and expenses of the Agent incurred in connection with any amendments,
supplements, modifications or waivers of this Agreement. The Borrower also
agrees (i) to pay, indemnify, and hold each Lender and the Agent harmless from,
any and all recording and filing fees and any and all liabilities with respect
to, or resulting from any delay in paying, stamp, excise and other taxes, if
any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (ii) to pay, indemnify, and hold
each Lender and the Agent harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law applicable to the
operations of the Borrower, any of its Subsidiaries or any of their properties
(all the foregoing in this clause (ii), collectively, the "indemnified
liabilities"), provided that the Borrower shall have no obligation hereunder to
the Agent or any Lender with respect to indemnified liabilities arising from the
gross negligence or willful misconduct of the Agent or such Lender. The
agreements in this subsection shall survive repayment of the Loans and all other
amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Borrower, the Lenders, the Agent and their respective successors and assigns,
except that the Borrower may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in accordance with applicable law,
including compliance with applicable federal and state securities and "blue sky"
laws and regulations, at any time sell to one or more Eligible Assignees
("Participants") participating interests in any Loan owing to such Lender, the
Commitment of such Lender or any other interest of such Lender hereunder. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement, and the Borrower and the Agent shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and the other Loan
Documents. No Lender shall be entitled to create in favor of any Participant, in
the participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the first proviso to subsection
9.1. The Borrower agrees that if amounts outstanding under this Agreement are
due or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall, to the
maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in subsection
9.7(a) as fully as if it were a Lender hereunder. The Borrower also agrees that
each Participant shall be entitled to the benefits of subsections 2.11, 2.12,
2.13 and 2.14 with respect to its participation in the Commitments and the Loans
outstanding from time to time as if it were a Lender; provided that, in the case
of subsection 2.13, such Participant shall have complied with the requirements
of said subsection and provided, further, that no Participant shall be entitled
to receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in accordance with applicable law,
including compliance with applicable federal and state securities and "blue sky"
laws and regulations, at any time and from time to time assign to any other
Lender or to an Eligible Assignee (an "Assignee") all or any part of its Loans
and Commitment pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit C, executed by such Assignee and such assigning Lender and
delivered to the Agent for its acceptance and recording in the Register,
provided that, in the case of any such assignment to an Eligible Assignee, the
sum of the aggregate principal amount of the Loans and the aggregate amount of
Unused Commitment being assigned is not less than $10,000,000 (or such lesser
amount as constitutes the assigning Lender's entire aggregate principal amount
of Loans and Unused Commitment) and, if such assignment is of less than all of
the Loans and Commitment of the assigning Lender, the sum of the aggregate
principal amount of the assigning Lender's remaining Loans and the aggregate
amount of Unused Commitment is not less than $10,000,000 (or such lesser amount
as may be agreed to by the Borrower and the Agent). Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (i) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder, and (ii) the assigning
Lender thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under this Agreement, such assigning
Lender shall cease to be a party hereto but shall be entitled to the benefits of
subsections 2.11, 2.12, 2.13 and 2.14 in respect of the period prior to such
assignment as well as to any fees accrued for its account and not yet paid).
Notwithstanding any provision to the contrary in this paragraph, no assignment
shall be effected pursuant to this paragraph unless the Borrower shall have
received written notice thereof (i) in the case of any assignment to more than
one Person of outstanding Loans and/or Commitments in an aggregate principal
amount in excess of $100,000,000, at least 60 days prior to the date of such
assignment, and (ii) in the case of any other assignment, prior to the date of
such assignment.
(d) The Agent, on behalf of the Borrower, shall maintain at
the address of the Agent referred to in subsection 9.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders, the registered owners of
the Obligations evidenced by the Notes and the principal amount of the Loans
owing to each Lender from time to time. The entries in the Register shall be
prima facie evidence of the accuracy thereof, and the Borrower, the Agent and
the Lenders shall treat each Person whose name is recorded in the Register as
the owner of a Loan or Note hereunder as the owner thereof for all purposes of
this Agreement, notwithstanding any notice to the contrary. Any assignment of
any Loan or Note hereunder shall be effective only upon appropriate entries with
respect thereto being made in the Register. Any assignment or transfer of all or
part of any Loan evidenced by a Note shall be registered on the Register only
upon surrender for registration of assignment or transfer of such Note, duly
endorsed by (or accompanied by a written instrument of assignment or transfer
duly executed by) the holder thereof, and thereupon one or more new Note(s) in
the same aggregate principal amount shall be issued to the designated
Assignee(s) and the old Note shall be returned to the Borrower marked
"cancelled". The Register shall be available for inspection by the Borrower or
any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee that is
not then a Lender, by the Agent), together with payment by the assignor or
assignee Lender, as agreed between them, to the Agent of a registration and
processing fee of $3,500, the Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective Transferee
and its advisers and agents, any and all information in such Lender's possession
concerning the Borrower and its Subsidiaries which has been delivered to such
Lender by or on behalf of the Borrower pursuant to this Agreement or the other
Loan Document or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Subsidiaries prior to becoming a party to this Agreement; provided that (i)
no such disclosure may be made unless such Transferee or prospective Transferee
and its advisers and agents shall have executed and delivered to the Borrower a
Confidentiality Agreement and (ii) disclosures of information to any Transferee
or prospective Transferee that is an Investment Vehicle shall be limited as
provided in the definition of "Eligible Assignee" in subsection 1.1.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments of
Loans relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan to any Federal Reserve Bank in
accordance with applicable law.
9.7 Adjustments; Set-off. (a) If any Lender (a "Benefitted
Lender") shall at any time receive any payment of all or part of its Loans, or
interest thereon, (whether voluntarily or involuntarily, by set-off, or
otherwise) in a greater proportion than any such payment to any other Lender, if
any, in respect of such other Lender's Loans, or interest thereon, such
Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loans, as shall be
necessary to cause such Benefitted Lender to share the excess payment ratably
with each of the other Lenders, provided, however, that if all or any portion of
such excess payment is thereafter recovered from such Benefitted Lender, such
purchase shall be rescinded, and the purchase price returned, to the extent of
such recovery, but without interest and, provided, further, that,
notwithstanding the foregoing, if such Benefitted Lender shall receive such
payment at a time when a Notice of Enforcement shall have been delivered to the
Trustee and be in effect, such Benefitted Lender shall turn over to the Trustee
an amount equal to such payment for deposit in the Collateral Account (as
defined in the Trust Agreement) to be applied in the manner provided for in the
Trust Agreement.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right at any time and from time to
time, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, upon any
amount becoming due and payable by the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the Agent after
any such set-off and application made by such Lender, provided that the failure
to give such notice shall not affect the validity of such set-off and
application.
9.8 Counterparts. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Agent.
9.9 Severability. Any provision of this Agreement which 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.
9.10 Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrower, the Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OB-
LIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND IN-
TERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction. Each of the Borrower,
the Agent, the Vendor and, to the extent not prohibited by applicable law, the
other Lenders hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement, or for recognition and
enforcement of any judgement in respect thereof, to the non-exclusive
general jurisdiction of the Courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to it at its address set forth or referred to in subsection
9.2 or at such other address of which the other parties shall have been
notified pursuant thereto; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to xxx in any other jurisdiction.
9.13 Confidentiality. Each of the Agent and the Lenders agrees
to keep confidential any written or oral information (a) provided to it by or on
behalf of the Borrower or any of its Subsidiaries pursuant to or in connection
with this Agreement or (b) obtained by such Lender based on a review of the
books and records of the Borrower or any of its Subsidiaries; provided that
nothing herein shall prevent any Lender from disclosing any such information (i)
to the Agent or any other Lender, (ii) to any prospective Transferee which is an
Eligible Lender and which executes and delivers to the Borrower a
confidentiality agreement in substantially the form of Exhibit D, (iii) to its
employees, directors, agents, attorneys, accountants and other professional
advisors who have been made aware of the confidential nature of such information
and have agreed to maintain the confidentiality thereof, (iv) upon the request
or demand of any Governmental Authority having jurisdiction over such Lender and
the authority to make such request or demand, (v) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, provided that prior written notice of such
disclosure is given to the Borrower or (vi) which has been publicly disclosed
other than in breach of this Agreement.
9.14 Non-Recourse. No claim may be made under this Agreement
or any other Loan Document against any of the direct or indirect partners of the
Borrower for the payment of principal of, or interest on, the Loans, or any
expenses or other amounts payable hereunder or under any other Loan Document,
provided, however, that this subsection shall not (a) affect the validity or
enforceability of the obligations of any Partner under the Capital Contribution
Agreement or (b) operate as a waiver of any rights or claims against any Partner
arising out of or resulting from such Partner's misrepresentations or fraud in
or in respect of the Capital Contribution Agreement.
9.15 Securities Act Matters. (a) Each of the Agent and the
Lenders hereby acknowledges and agrees that: the Loans have not been and will
not be registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state; the Loans are being made in reliance
on exemptions from the registration requirements of the Securities Act and
applicable state securities laws; the Loans have not been approved or
disapproved by the Securities and Exchange Commission (the "Commission"), any
state securities commission or other regulatory authority, nor have any of the
foregoing authorities passed upon or endorsed the merits of the credit facility
established hereby or the accuracy or adequacy of the Summary Business Plan
Overview of the Borrower, dated March 1996, and that any representation to the
contrary is unlawful; the Loans are subject to restrictions on transferability
and resale and may not be transferred or resold except as permitted under the
Securities Act and applicable state securities laws pursuant to registration or
exemption therefrom; any promissory notes evidencing the Loans will bear a
legend referring to the foregoing restrictions; and because of such
restrictions, no secondary trading market for the Loans is expected to develop,
and Lenders must bear the risk of their investment for an indefinite amount of
time.
(b) Each Lender represents that (i) it is an "accredited
investor" as such term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act, (ii) it is making the Loans hereunder for its own
account for investment and not with a view to a public distribution thereof
(within the meaning of the Securities Act and rules and regulations promulgated
thereunder) in contravention of the Securities Act and (iii) it has been
afforded an opportunity to request from the Borrower and to review, and has
received, all information considered by it to be necessary to become a Lender
hereunder.
9.16 Other Agreements. The Vendor, the Borrower and each
other Person that shall subsequently become party to this Agreement agree to the
provisions contained in Schedule I.
9.17 WAIVERS OF JURY TRIAL. EACH OF THE BORROWER, THE
AGENT, THE VENDOR AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.18 Interest Rate Limitation. Notwithstanding anything herein
or in any Note to the contrary, if at any time the applicable interest rate,
together with all fees and charges which are treated as interest under
applicable law (collectively, the "Charges"), as provided for herein or in any
other document executed in connection herewith, or otherwise contracted for,
charged, received, taken or reserved by any Lender, shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by such Lender in accordance with applicable law, the rate
of interest payable on any Loans owing to such Lender, together with all Charges
payable to such Lender, shall be limited to the Maximum Rate.
9.19 Release of Guarantees and Collateral. If the Borrower
shall wish to effect the release of any Collateral or any Guarantee, it shall
give notice thereof to the Agent. Upon receipt of such notice, the Agent shall
request the Lenders to give notice to the Agent in writing of their approval or
disapproval of the requested release. If Lenders whose Percentages aggregate at
least 75% approve such request, the Agent shall give written notice of such
approval to the Borrower, and such release may thereafter be effected without
violation of this Agreement. For avoidance of doubt, no approval of Lenders
shall be necessary to effect the release of any Collateral which is the subject
of any Asset Sale permitted by subsection 6.6.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
SPRINT SPECTRUM L.P.
By: Sprint Spectrum
Holding Company, L.P.,
its general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
Title: Treasurer
NORTHERN TELECOM INC., as a Lender
and as Agent
By: /s/ Xxxxxxx X. Xxxxx
Title: President, Wireless Networks
MISCELLANEOUS PROVISIONS
1. Certain Definitions.
"Applicable Margin": (a) with respect to the first
$800,000,000 of Loans made hereunder, as such Loans may be continued or
converted from time to time for (i) ABR Loans, 2.00%, and (ii)
Eurodollar Loans, 3.00%, and (b) with respect to all Loans made in
excess of $800,000,000 made hereunder, as such Loans may be continued
or converted from time to time for (i) ABR Loans, 1.50%, and (ii)
Eurodollar Loans, 2.50%.
"Hard Costs": all "Products", "Services" (including project
management services but excluding construction management services),
"Installation" and "Engineering" (as each such term is defined in the
Vendor Procurement Contract) provided, and invoiced, by the Vendor to
the Borrower pursuant to the Vendor Procurement Contract.
"Phase I Commitment Period": the period (a) beginning on the
date on or subsequent to the Closing Date (which shall be no later than
March 31, 1997) on which the Borrower shall have delivered to the Agent
a certificate executed by a Responsible Officer stating that (i) the
Borrower has obtained Bona Fide Commitments and/or funding (other than
funding which is used to acquire or invest in Unrestricted
Subsidiaries) from financing sources (including $800,000,000 of the
Vendor Commitment) in the aggregate amount of at least $4,075,000,000,
(ii) at least $1,000,000,000 of such Bona Fide Commitments and/or
funding has been obtained pursuant to the Other Vendor Credit Facility,
(iii) at least $1,075,000,000 of such Bona Fide Commitments and/or
funding has been obtained pursuant to Bank Credit Facilities and/or the
proceeds of the sale by the Borrower of its public debt and (iv) at
least $1,000,000,000 of such Bona Fide Commitments has been obtained
from the Partners under the Capital Contribution Agreement or in the
form of cash equity contributions to the Borrower (such certificate to
be accompanied by certified copies of any commitment letters or other
documents evidencing the Bona Fide Commitments described in such
certificate) and (b) ending on the earlier of the date on which the
Available Commitment for the Phase I Commitment Period is reduced to
zero or the Termination Date.
"Phase II Commitment Period": the period (a) beginning on the
date on which the Borrower shall have delivered to the Vendor a
certificate executed by a Responsible Officer stating that (i) the
Borrower has obtained Bona Fide Commitments and/or funding (in excess
of the minimum commitments and/or funding described in the definition
of Phase I Commitment Period) from financing sources (including
$500,000,000 of the Vendor Commitment) in the aggregate amount of
$2,300,000,000, (ii) at least $400,000,000 of such Bona Fide
Commitments and/or funding has been obtained in the form of cash equity
contributions and/or subordinated unsecured loans to the Borrower by
the Partners and/or Bona Fide Commitments by the Partners and/or third
parties to make such contributions and/or loans, (iii) at least
$800,000,000 of such Bona Fide Commitments and/or funding has been
obtained pursuant to the Other Vendor Credit Facility, (iv) at least
$750,000,000 of such commitments and/or funding has been obtained from
entities a primary business of which is to extend credit or to invest
in commercial bank loans and/or the proceeds of the sale by the
Borrower (or Holding if such proceeds are made available as cash equity
contributions to the Borrower) of its public debt, (v) the Borrower has
drawn $800,000,000 hereunder and drawn or utilized substantially all of
the Bona Fide Commitments described in the definition of Phase I
Commitment Period (including, in particular, the Other Vendor Credit
Facility but excluding any portion of the Bank Credit Facilities or any
other such Bona Fide Commitments which has not been utilized as a
result of a determination by the Borrower that the actual utilization
of other sources of funding available to the Borrower was in the
Borrower's best interest) and (vi) there are then at least [__________]
Covered POPS and (b) ending on the Termination Date.
"Soft Costs": all goods and services provided by and invoiced
by the Vendor under the Vendor Procurement Contract (including, without
limitation, construction management services) other than Hard Costs;
for greater certainty, Soft Costs do not include any fees payable to
the Vendor or any Lender hereunder.
"Vendor Commitment": the obligation of the Vendor to make (or
cause Lenders to make) Loans to the Borrower under subsection 2.1 in an
aggregate principal amount not to exceed (a) during the Phase I
Commitment Period, $800,000,000 and (b) during the Phase II Commitment
Period, $500,000,000, as such amounts may be modified from time to time
in accordance with the provisions of this Agreement.
2. Use of Proceeds.
The proceeds of the Loans shall be used to finance the purchase price
of goods and services provided by the Vendor under the Vendor
Procurement Contract associated with the build-out of the Borrower's
national wireless telecommunications system; provided that the
aggregate amount of Loans which shall have been made to finance Soft
Costs shall not exceed (a) at any time prior to the commencement of the
Phase II Commitment Period, the sum of $[___________] plus [___]% of
the value of non-cancelable orders placed by the Borrower under the
Vendor Procurement Contract which are associated with a system which
has then achieved [__________] under the Vendor Procurement Contract;
provided that the aggregate amount of Loans made to finance Soft Costs
pursuant to this clause (a) may not exceed $[_____________], and (b)
from and after the commencement of the Phase II Commitment Period, (i)
[____]% of the value of all non-cancelable orders placed by the
Borrower under the Vendor Procurement Contract which (A) have
deliveries required within six months from the date each such order was
placed, (B) have been placed at any time after the commencement of the
Phase II Commitment Period and (C) do not exceed $[__________] in the
aggregate and (ii) after orders meeting the requirements of clause (i)
above have been placed, [____]% of the value of all cumulative
non-cancelable orders placed by the Borrower under the Vendor
Procurement Contract subsequent to the execution thereof which have
deliveries required within 120 days from the date the order was placed;
and provided, further, that in no event shall the aggregate amount of
Loans made to finance Soft Costs exceed $[__________].
3. Fees; Additional Amounts.
(a) The Borrower agrees to pay to the Agent, for the account
of the Lenders pro rata according to their Funding Percentages, a
commitment fee for the period from and including the Closing Date to
and excluding the Termination Date, computed at the rate of
[________________], payable quarterly in arrears on the last day of
each March, June, September and December and on the Termination Date or
such earlier date on which the Commitments shall terminate as provided
in this Agreement, commencing on the first of such dates to occur after
the Closing Date.
(b) The Borrower agrees to pay to the Vendor an origination
fee equal to $[__________], payable on the date the initial Loans are
made under this Agreement.
(c) The Borrower agrees to pay to the Vendor an origination
fee equal to $[__________], payable on the date that the aggregate
principal amount of all Loans (other than Loans made pursuant to
subsection 2.7(d)) exceed $800,000,000.
(d) In addition to, and without duplication of, amounts which
may become payable from time to time pursuant to paragraphs (a) and (b)
of subsection 2.12, the Borrower agrees to pay to each Lender which
requests compensation under this paragraph (d) by notice to the
Borrower, on the last day of each Interest Period with respect to any
Eurodollar Loan made by such Lender, at any time when such Lender shall
be required to maintain reserves against "Eurocurrency liabilities"
under Regulation D of the Board of Governors of the Federal Reserve
System (or, at any time when such Lender may be required by the Board
of Governors of the Federal Reserve System or by any other Governmental
Authority, whether within the United States or in another relevant
jurisdiction, to maintain reserves against any other category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Lender
which includes any such Eurodollar Loans), an additional amount
(determined by such Lender's calculation or, if any accurate
calculation is impracticable, reasonable estimate using such reasonable
means of allocation as such Lender shall determine) equal to the actual
costs, if any, incurred by such Lender during such Interest Period as a
result of the applicability of the foregoing reserves to such
Eurodollar Loans.
4. Assignments.
(a) Notwithstanding any provision to the contrary in
subsection 9.6, prior to Xxxxx 00, 0000, (x) no Lender may engage in
any selling efforts with respect to, or consummate, any assignment of
any undrawn Commitment of such Lender hereunder and (ii) no lender
under the Other Vendor Credit Facility may engage in selling efforts
with respect to, or consummate, any assignment of any undrawn
commitment of such lender under the Other Vendor Credit Facility.
(b) The restrictions contained in paragraph (a) above and the
restrictions contained in the proviso to the first sentence of
subsection 9.6(c) and the last sentence of subsection 9.6(c) shall not
apply to any sale or assignment by the Vendor to XXXXXXXX Xxxxxxxxxxxx;
and the restrictions contained in paragraph (a) above and the
restrictions contained in the proviso to the first sentence of
subsection 9.6(c) and the last sentence of subsection 9.6(c) shall not
apply to any sale or assignment by the Vendor to (i) a Person, subject
to the consent of the Borrower (which consent shall not be unreasonably
withheld), which is neither a bank, insurance company or mutual fund
nor an entity, Affiliate or Investment Vehicle which is in the
telecommunications business and/or a related business or (ii) any
Affiliate of the Vendor the obligations of which shall have been
guaranteed by the Vendor. It is further agreed that (i) only one
Assignment and Acceptance shall be required to be executed and
delivered by the Vendor and XXXXXXXX Xxxxxxxxxxxx with respect to the
assignment of Loans from time to time by the Vendor to XXXXXXXX
Xxxxxxxxxxxx, (ii) that such Assignment and Acceptance shall include a
schedule to reflect the principal amount of Loans assigned from time to
time and (iii) that the Vendor shall promptly notify the Agent of the
principal amount of each assignment of Loans by the Vendor to XXXXXXXX
Xxxxxxxxxxxx, and upon the Agent's receipt of such notice, the Agent
shall record the information contained therein in the Register and on
the schedule to such Assignment and Acceptance and give notice of such
recordation to the Lenders and the Borrower.
5. Syndication of Loans and Commitment by Vendor.
The Borrower and its Restricted Subsidiaries will cooperate with the
Vendor and its lead agents in each syndication of the Loans and
Commitments undertaken by the Vendor and such lead agents; provided
that the Vendor and its lead agents shall give the Borrower prior
written notice of their intent to commence each such syndication and,
provided, further, that the Borrower and its Restricted Subsidiaries
shall not be required to take the actions described in this paragraph
in connection with more than two such syndication commencement notices
in any twelve-month period and no more than three such syndication
commencement notices during the term of the Credit Facility. Such
cooperation will include (i) making senior officers of the Borrower and
its Restricted Subsidiaries available for a meeting with prospective
Assignees and the Vendor and its lead agents (provided that the
Borrower shall have received at least 60 days' notice of such meeting),
and (ii) providing such other assistance as may be reasonably requested
by the Vendor and such lead agents (including providing information to,
and responding to questions from, prospective Assignees with respect to
the operations, business plans, results and other matters relating to
the Borrower's business on a timely basis and in any manner reasonably
requested by the Vendor or such lead agents).
6. Purchases Under Other Vendor Procurement Contract.
The Borrower agrees that it will not purchase any goods or services
under the Other Vendor Procurement Contract for an aggregate price in
excess of $1,800,000,000 and up to $1,950,000,000 except to the extent
that the Other Vendor provides financing to the Borrower for such
excess under terms no less favorable to the Borrower than those set
forth in the Other Vendor Credit Facility.
7. Provisions of Schedule I of Other Vendor Credit Facility.
The Borrower confirms that the provisions of Schedule I of the Other
Vendor Credit Facility that might be deemed to modify subsection 9.6 of
the Other Vendor Credit Facility are no less restrictive in any
material respect than those set forth in subsection 9.6 of this
Agreement and this Schedule I.
LENDER COMMITMENTS
Name of Lender Percentage of Vendor Commitment
Northern Telecom Inc. 100%
SCHEDULE 3.17(A)
THE BORROWER'S MTA'S
Birmingham
Boston-Providence
Buffalo-Rochester
Dallas-Fort Worth
Denver
Des Moines-Quad Cities
Detroit
Indianapolis
Kansas City
Little Rock
Louisville-Lexington-Evansville
Miami-Fort Lauderdale
Milwaukee
Minneapolis-St. Xxxx
Nashville
New Orleans-Baton Rouge
New York
Oklahoma City
Phoenix
Pittsburgh
Portland
St. Louis
Salt Lake City
San Antonio
San Francisco-Oakland-San Xxxx
Seattle
Spokane-Xxxxxxxx
Tulsa
Wichita
SCHEDULE 6.2(g)
EXISTING INDEBTEDNESS
10% Notes Payable - Xxxxxx Co., due 2006 $757,522.61
SCHEDULE 6.4(a)
EXISTING GUARANTEE OBLIGATIONS
-None-
EXHIBIT A
THIS NOTE AND THE LOANS EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR THE SECURITIES LAWS OF ANY STATE; THE LOANS EVIDENCED HEREBY ARE BEING MADE
IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND APPLICABLE STATE SECURITIES LAWS; THIS NOTE AND THE LOANS EVIDENCED
HEREBY HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION"), ANY STATE SECURITIES COMMISSION OR OTHER
REGULATORY AUTHORITY, NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR
ENDORSED THE MERITS OF THIS NOTE OR THE ACCURACY OR ADEQUACY OF THE SUMMARY
BUSINESS PLAN OF THE BORROWER, DATED MARCH 1996, AND ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL; THIS NOTE AND THE LOANS EVIDENCED HEREBY ARE SUBJECT TO
RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT ABE TRANSFERRED OR RESOLD
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT
AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE MUST BE RECORDED IN THE
REGISTER MAINTAINED BY THE AGENT PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.
FORM OF NOTE
$ ____________ New York, New York
_________ __, ____
FOR VALUE RECEIVED, the undersigned, SPRINT SPECTRUM L.P., a
Delaware limited partnership (the "Borrower"), hereby unconditionally promises
to pay to the order of ____________________ (the "Lender") at the office of
__________________ located at __________________, in lawful money of the United
States of America and in immediately available funds, the lesser of (a) the
principal amount of DOLLARS ($ ) and (b) the aggregate unpaid amount of th
Loans made to the Borrower by the Lender pursuant to the Credit Agreement (as
defined below). The principal amount shall be paid in the amounts and on the
dates specified in subsection 2.3 of the Credit Agreement (as defined below).
The Borrower further agrees to pay interest in like money at such office on
the unpaid principal amount hereof from time to time outstanding at the rates
and on the dates specified in subsections 2.7 and 2.8 of the Credit Agreement
(as defined below).
The Borrower promises to pay interest, on demand, on any
overdue principal and, to the extent permitted by law, overdue interest from
their due dates at the rate or rates provided in the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Loan made pursuant to the Credit Agreement and the date and amount of
each payment or prepayment of principal thereof, each continuation thereof, each
conversion of all or a portion thereof to another Type and, in the case of
Eurodollar Loans, the length of each Interest Period with respect thereto. Each
such endorsement shall constitute prima facie evidence of the accuracy of the
information endorsed. The failure to make any such endorsement shall not affect
the obligations of the Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit
Agreement, dated as of October 2, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower,
Northern Telecom Inc., the Lender, the other banks and financial institutions
and entities from time to time parties thereto and Northern Telecom Inc., as
agent, (b) is subject to the provisions of the Credit Agreement and (c) is
subject to optional and mandatory prepayment in whole or in part as provided in
the Credit Agreement. This Note is secured and guaranteed as provided in the
Loan Documents. Reference is hereby made to the Loan Documents for a description
of the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
No claim may be made under this Note against any of the direct
or indirect partners of the Borrower for the payment of principal of, or
interest on, the Loans, or any other amounts payable under the Credit Agreement
or this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPRINT SPECTRUM L.P.
By: Sprint Spectrum
Holding Company, L.P.,
its general partner
By: ______________________
Title:
Schedule A
to Note
----------
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
----- ------- ----------- ---------- ------------- --------------- -------------
Amount of Amount of
Amount Principal ABR Loans
Amount Converted of ABR Converted to Unpaid Prin-
of ABR to Loans Eurodollar cipal Balance Notation
Date Loans ABR Loans Repaid Loans of ABR Loans Made By
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
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----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
----- ------- ----------- ---------- ------------- --------------- -------------
Schedule B
to Note
----------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
----- -------- --------- ---------- ---------- ----------- ----------- ---------
Interest Amount of Amount of Unpaid
Amount Period & Principal Eurodollar Principal
Amount Converted Eurodollar of Loans Con- Balance
of Euro to Euro- Rate with Eurodollar verted to of Notation
dollar dollar Respect Loans ABR Eurodollar Made
Date Loans Loans Thereto Repaid Loans Loans Eurodollar
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
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----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
----- -------- --------- ---------- ---------- ----------- ---------- ----------
EXHIBIT B-1
LEGAL OPINION OF XXXXXXX XXXXXXX & XXXXXXXX
October __, 1996
Northern Telecom Inc., as Lender
and as Agent (the "Agent")
under the Credit Agreement, as
hereinafter defined
Re: Credit Agreement, dated as of October 2, 1996 (the
"Credit Agreement"), among Sprint Spectrum L.P. (the
"Borrower"), the entities from time to time parties
thereto as lenders (the "Lenders") and the Agent
Ladies and Gentlemen:
We have acted as counsel to the Borrower in connection with
the preparation, execution and delivery of the Credit Agreement. Unless
otherwise indicated, capitalized terms used but not defined herein shall have
the respective meanings set forth in the Credit Agreement. This opinion is
furnished to you pursuant to subsection 4.1(g)(i) of the Credit Agreement.
In connection with this opinion, we have examined:
(A) the Credit Agreement; and
(B) the form of the Notes which may be delivered pursuant to
the Credit Agreement after the date hereof.
We also have examined the originals, or certified, conformed or reproduction
copies, of such records, agreements, instruments and other documents and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates as to matters of fact of
public officials and of officers and representatives of the Loan Parties. In
addition, we have examined, and have relied as to matters of fact upon the
representations made in the Loan Documents.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
As to all matters covered by the opinion letter delivered to
you on the date hereof by Xxxxxxx X. Xxxxxx, Associate General Counsel of the
Borrower, we have assumed the accuracy of the legal opinions expressed therein
to the extent relating to the law of the State of Missouri and the State of
Delaware.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
(1) The Credit Agreement constitutes, and each Note, when
executed and delivered by the Borrower in accordance with the Credit Agreement,
will constitute, a valid and legally binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(2) The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended. The Borrower is not a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935.
(3) No consent, order or authorization of, filing with, notice
to or approval or other act by or in respect of, any United States or State of
New York Governmental Authority is required to be obtained or made by the
Borrower in connection with the borrowings under the Credit Agreement or with
the execution, delivery, performance, validity or enforceability of the Credit
Agreement or any Notes other than those filings required in connection with the
perfection of the Liens created by the Security Documents.
(4) The execution, delivery and performance of the Credit
Agreement and any Notes, the borrowings under the Credit Agreement and the use
of the proceeds thereof will not violate any law, rule or regulation of any
United States or State of New York Governmental Authority applicable to the
Borrower or any of its Subsidiaries.
(5) No registration under the Securities Act of 1933, as
amended, of the Loans or the Notes is required for the borrowing by the Borrower
of the Loans or the issuance by the Borrower of any Notes solely in the manner
contemplated by the Credit Agreement.
Our opinion in paragraph (1) above is subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
We express no opinion with respect to:
(A) any matters subject to the Communications Act of
1934, as amended;
(B) the effect of any provision of the Credit Agreement
insofar as it provides that any Person purchasing a
participation from a Lender may exercise set-off or
similar rights with respect to such participation or
that any Lenders may exercise set-off or similar
rights other than in accordance with applicable law;
(C) the effect of any provision of the Credit Agreement
relating to indemnification or exculpation that is
inconsistent with public policy; and
(D) the effect of the compliance or noncompliance with
any federal or state laws or regulations applicable
to any of the Lenders or their affiliates because of
their legal or regulatory status or the nature of
their businesses.
In addition, we express no opinion as to the enforceability of
any provision of the Credit Agreement whereby the Borrower purports to submit to
the subject matter jurisdiction of the United States District Court for the
Southern District of New York. We note the limitations of 28 U.S.C. ss. 1332 on
federal court jurisdiction where diversity of citizenship is lacking, and we
also note that such submission cannot supersede that court's discretion in
determining whether to transfer an action from one federal court to another
under 28 U.S.C. ss. 1404(a).
We are members of the Bar of the State of New York, and we do
not express any opinion herein concerning any law other than the law of the
State of New York and the federal law of the United States.
This opinion letter is rendered to you in connection with the
above-described transactions. It may not be relied upon by you for any other
purpose, or relied upon by any other Person without our prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
EXHIBIT B-3
FORM OF LEGAL OPINION OF XXXXXXXX & XXXXXXXX LLP
October __, 1996
Northern Telecom Inc., as Lender
and as Agent (the "Agent")
under the Credit Agreement, as
hereinafter defined
Re: Credit Agreement, dated as of October 2, 1996
(the "Credit Agreement"), among Sprint Spectrum L.P.
(the "Borrower"), the lending institutions identified
in the Credit Agreement (the "Lenders") and the Agent
Ladies and Gentlemen:
We have been requested to provide you with this opinion
pursuant to subsection 4.1(g)(iii) of the Credit Agreement. This opinion
addresses certain licenses listed in Schedule I that are held by WirelessCo,
L.P. ("WirelessCo"), a subsidiary of the Borrower. Except as otherwise provided
herein, capitalized terms used in this opinion shall be defined as set forth in
the Credit Agreement.
This Firm has been engaged as special Federal Communications
Commission ("FCC") counsel to the Borrower in connection with the Credit
Agreement. WirelessCo has been authorized by the FCC to provide Personal
Communications Services ("PCS"). As special FCC counsel, this opinion is limited
to those matters within the jurisdiction of the FCC pertaining to PCS. As to
questions of law, the following opinions are based upon only the Communications
Act of 1934, as amended by the Telecommunications Act of 1996 ("Communications
Act"), and the rules, regulations and published opinions of the FCC relating
thereto. We offer no opinion as to any other federal law or the laws, rules or
regulations of any state or local government or regulatory authority.
In connection with this opinion, we have examined, and relied
upon, the FCC licensing records and copies of documents filed by WirelessCo with
the FCC and have compared these records to the licenses listed in Schedule I
(the "Licenses"). We also have obtained, and relied upon as to matters of fact,
without independent investigation, such certifications from officers of the
Borrower (the "Officers' Certificates") as we have deemed necessary for purposes
of this opinion. We have also examined FCC orders and other records of the FCC's
Wireless Telecommunications Bureau (the "FCC Files") and have made telephone
inquiries to FCC staff in the FCC's Wireless Telecommunications Bureau with
respect to the opinions stated in paragraphs (iii), (iv), (v), and (vi) herein.
We have also examined the Credit Agreement and the form of Notes which may be
delivered pursuant to the Credit Agreement after the date hereof and have
examined such other documents and records and made such other investigations as
we have deemed relevant and necessary in connection with this opinion.
As to matters of fact, we have relied upon and assumed the
accuracy and completeness of the FCC Files, the documents filed by WirelessCo
with the FCC, and the Officers' Certificate(s). In rendering this opinion, we
have not independently investigated, established or verified the factual basis
of any opinion set forth herein, and, unless otherwise indicated herein, have
relied for such matters solely upon the FCC Files, the documents filed by
WirelessCo with the FCC and the Officers' Certificate(s).
We have assumed: (i) the authenticity of all documents
submitted to us as originals and the conformity with the original documents of
any copies thereof submitted to us as certified, conformed or photostatic copies
for our examination; (ii) that the signatures on all documents examined by us
are genuine; (iii) that where any such signature purports to have been made in a
corporate, governmental, fiduciary or other capacity, the person who affixed
such signature to such documents had authority to do so; and (iv) that all
public files, records and certificates of, or furnished by, governmental or
regulatory agencies or authorities are true, correct and complete.
As to all matters covered by the opinion letter delivered to
you on the date hereof by Xxxxxxx X. Xxxxxx, Associate General Counsel of the
Borrower, we have relied upon such opinion letter and assumed the accuracy of
the legal opinions expressed therein.
Based upon our examination of the foregoing documents, records
and disclosures and subject to the qualifications, assumptions and limitations
set forth herein, we are of the opinion that:
(i) The execution and delivery of the Loan Documents and the
consummation by the Loan Parties of all of the transactions contemplated thereby
and the performance thereunder will not result in a violation of the
Communications Act or any order, rule or regulation of the FCC.
(ii) No consent, approval, authorization, order, registration,
filing or qualification of or with, or any other act by, any court or
governmental agency or body is required under the Communications Act or the
rules, regulations and published policies of the FCC for the valid execution,
delivery and consummation of and performance under the Loan Documents or the
consummation by the Loan Parties of the transactions contemplated thereby.
(iii) WirelessCo holds and has the right to use all of the
Licenses, without any conflict known to us with the rights of others, except as
such conflict, taken in the aggregate, would not have a Material Adverse Effect.
Such Licenses are in full force and effect and we are not aware of any other
licenses or other approvals or authorizations required by the Borrower or any
Restricted Subsidiary to conduct its business as now operated or as contemplated
to be operated by it.
(iv) To the best of our knowledge, there is no material
respect in which the operation of the Borrower and the Restricted Subsidiaries'
businesses is not in accordance with the Licenses, the Communications Act and
all orders, rules, regulations and published policies of the FCC.
(v) To the best of our knowledge, there are no material
proceedings threatened, pending or contemplated before the FCC against or
involving the properties, businesses or Licenses of the Borrower or any
Restricted Subsidiary.
(vi) To the best of our knowledge, no event has occurred as of
the date hereof that permits, or with notice or lapse of time or both would
permit, the suspension, revocation or termination of any of the Licenses or that
might result in any other material impairment of the rights of the Borrower or
the Restricted Subsidiaries therein.
Whenever our opinion herein with respect to the existence or
absence of facts is indicated to be based on the best of our knowledge or words
to such effect it is intended to signify that, in the course of our
representation of the Borrower in connection with Communications Act and FCC
regulatory matters, none of Xxxxxx X. Xxxxx, Xxxx X. Xxxx, Xxxxx X. Xxxxx, Xxxxx
X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx and Xxxxxxx X.
Xxx (the only attorneys of this Firm with substantive involvement in
representing the Borrower in Communications Act and FCC regulatory matters)
acquired actual knowledge of the existence or absence of any such facts. Except
to the extent expressly stated herein, we have not undertaken any independent
investigation to determine the existence or absence of such facts, and no
inference as to our knowledge of the existence of such facts should be drawn
from the fact of our representation of the Borrower.
The opinion expressed herein is rendered as of the date of
this letter and is specific to the transactions and the documents referred to
herein. This opinion may not be relied upon for any other purpose or by any
other person or entity without our prior written consent. This opinion is
furnished solely for your benefit, and may not be relied upon by any other
person without our prior written consent.
Very truly yours,
Xxxxxxxx & Xxxxxxxx LLP
SCHEDULE I
PCS LICENSES HELD BY WIRELESSCO, L.P.1/
Location Call Sign Market No.
New York KNLF204 M001 B
San Francisco-Oakland- KNLF208 M004 A
San Xxxx
Detroit KNLF211 M005 B
Dallas-Fort Worth KNKF215 M007 B
Boston-Providence KNLF217 M008 B
Minneapolis-St. Xxxx KNLF223 M012 A
Miami-Fort Lauderdale KNLF229 M015 A
New Orleans-Baton Rouge KNLF233 X000 X
Xx. Xxxxx XXXX000 X000 X
Milwaukee KNLF239 M020 A
Pittsburgh KNLF241 M021 A
Denver KNLF243 M022 A
Seattle KNLF248 M024 B
Louisville-Lexington- KNLF252 X000 X
Xxxxxxxxxx
Xxxxxxx KNLF254 M027 B
Birmingham KNLF257 M029 A
Portland KNLF260 X000 X
Xxxxxxxxxxxx XXXX000 M031 A
Des Moines-Quad Cities KNLF264 M032 B
San Antonio KNLF265 M033 A
Kansas City KNLF267 M034 A
Buffalo-Rochester KNLF269 M035 A
Salt Lake City KNLF272 M036 B
Little Rock KNLF280 M040 B
Oklahoma City KNLF282 M041 B
Spokane-Xxxxxxxx KNLF284 M042 B
Nashville KNLF285 M043 A
Wichita KNLF292 M046 B
Tulsa KNLF296 M048 B
----------------
1/ WirelessCo, L.P. PCS licenses were granted by the FCC on June 23, 1995 and
will expire June 23, 2005.
EXHIBIT B-2
FORM OF LEGAL OPINION OF XXXXXXX X. XXXXXX, ESQ.
October __, 1996
Northern Telecom Inc., as Lender
and as Agent (the "Agent")
under the Credit Agreement, as
hereinafter defined
Re: Credit Agreement, dated as of October 2, 1996 (the
"Credit Agreement"), between Sprint Spectrum L.P.
(the "Borrower"), the lending institutions identified
in the Credit Agreement (the "Lenders") and the
Agent
Ladies and Gentlemen:
I am the Associate General Counsel of the Borrower and have
acted in such capacity in connection with the preparation, execution and
delivery of the Credit Agreement. Unless otherwise indicated, capitalized terms
used but not defined in this opinion letter shall have the respective meanings
set forth in the Credit Agreement. This opinion is furnished to you pursuant to
subsection 4.1(g)(ii) of the Credit Agreement.
In connection with this opinion letter, I have examined or had
attorneys on my staff examine:
(A) the Credit Agreement; and
(B) the form of the Notes which may be delivered pursuant to
the Credit Agreement after the date of this opinion letter.
I or attorneys on my staff also have examined the originals, or certified,
conformed or reproduction copies, of such records, agreements, instruments and
other documents and have made such other investigations as I have deemed
relevant and necessary in connection with the opinions expressed in this opinion
letter. As to questions of fact material to this opinion, I have relied upon
certificates as to matters of fact of public officials and of officers and
representatives of the Borrower. In addition, I have examined, and have relied
as to matters of fact upon the representations made in the Loan Documents.
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth in this opinion letter, I am of the
opinion that:
(1) Each of the Borrower and its Restricted Subsidiaries (a)
is duly formed, validly existing and in good standing under the laws of
the jurisdiction of the State of Delaware, (b) has the partnership
power and authority to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it
is currently engaged and (c) is duly qualified to do business and in
good standing in each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect.
(2) The Borrower has the power and authority to make, execute,
deliver and perform the Credit Agreement and any Notes and to borrow
under the Credit Agreement and has taken all necessary partnership
action to authorize the borrowings on the terms and conditions of the
Credit Agreement and to authorize the execution, delivery and
performance of the Credit Agreement and any Notes. The Credit Agreement
has been duly executed and delivered on behalf of the Borrower.
(3) No consent, order or authorization of, filing with, notice
to or approval or other act by or in respect of, any United States or
State of Missouri Governmental Authority is required to be obtained or
made by the Borrower in connection with the borrowings under the Credit
Agreement or with the execution, delivery, performance, validity or
enforceability of the Credit Agreement or any Notes other than those
filings required in connection with the perfection of the Liens created
by the Security Documents.
(4) The execution, delivery and performance of the Credit
Agreement and any Notes, the borrowings under the Credit Agreement and
the use of the proceeds thereof will not violate the partnership
agreement of Holding or the Borrower or any of its Subsidiaries or any
law, rule or regulation of any United States or State of Missouri
Governmental Authority applicable to the Borrower or any of its
Subsidiaries, or, to my knowledge, any Contractual Obligation of, or
any determination, judgment, writ, injunction, decree or order of any
arbitrator or court or other United States or State of Missouri
Governmental Authority applicable to, the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Partnership Agreement, law, rule or
regulation or, to my knowledge, any such Contractual Obligation or any
determination, judgment, writ, injunction, decree or order or
Contractual Obligation, other than the Liens created by the Security
Documents.
(5) To my knowledge, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or threatened by or against the Borrower or any of its
Restricted Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of the Loan Documents or
(b) which could reasonably be expected to have a Material Adverse
Effect.
(6) To my knowledge, the following constitute all the
Subsidiaries of the Borrower as of the date of this opinion letter: (a)
WirelessCo, L.P. (the sole general partner of which is the Borrower and
the sole limited partner of which is MinorCo), (b) Sprint Spectrum
Equipment Company, L.P. (the sole general partner of which is the
Borrower and the sole limited partner of which is MinorCo), (c) Sprint
Spectrum Realty Company, L.P. (the sole general partner of which is the
Borrower and the sole limited partner of which is MinorCo) and (d)
Sprint Spectrum Finance Corporation, a Delaware corporation and a
wholly owned Subsidiary of the Borrower.
I express no opinion with respect to any matters subject to
the Communications Act of 1934, as amended.
I am a member of the Bar of the State of Missouri, and I do
not express any opinion herein concerning any law other than the law of the
State of Missouri, the federal law of the United States and the Delaware Revised
Uniform Limited Partnership Act.
This opinion letter is rendered to you in connection with the
above described transactions. It may not be relied upon by you for any other
purpose, or relied upon by any other Person without my prior written consent.
Very truly yours,
Xxxxxxx X. Xxxxxx
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of October
2, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Sprint Spectrum L.P., a Delaware limited partnership
(the "Borrower"), Northern Telecom Inc., the lenders named therein and Northern
Telecom Inc., as agent for the Lenders (in such capacity, the "Agent"). Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
(i) The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest").
(ii) The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor is the legal and beneficial owner of the interests being assigned by it
hereunder and has not created any adverse claim upon the interest being assigned
by it hereunder and that such interest is free and clear of any such adverse
claim; (b) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower, any of its Subsidiaries
or any other obligor or the performance or observance by the Borrower, any of
its Subsidiaries or any other obligor of any of their respective obligations
under the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Interest and (i) requests that the Agent, upon
request by the Assignee, exchange the attached Notes for a new Note or Notes
payable to the Assignee and (ii) if the Assignor has retained any Loans,
requests that the Agent exchange the attached Notes for a new Note or Notes
payable to the Assignor, in each case in amounts which reflect the assignment
being made hereby (and after giving effect to any other assignments which have
become effective on the Effective Date).
(iii) The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance; (b) confirms
that it has received a copy of the Credit Agreement, together with copies of the
financial statements and other information delivered pursuant to subsections
5.1(a) and (b) and 5.2(a) and (b) of the Credit Agreement and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (c) agrees
that, except as may be otherwise expressly agreed in writing between the
Assignee, on the one hand, and the Assignor, the Agent or the Lender, as the
case may be, on the other hand, it will, independently and without reliance upon
the Assignor, the Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Agent by the terms
thereof, together with such powers as are incidental thereto; (e) agrees that it
will be bound by the provisions of the Credit Agreement and will perform in
accordance with its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United States, its
obligation pursuant to subsection 2.13(b) of the Credit Agreement; and (f)
confirms and agrees with the provisions of subsection 9.15 of the Credit
Agreement.
(iv) The effective date of this Assignment and Acceptance
shall be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for acceptance by it and recording by the Agent
pursuant to the Credit Agreement, effective as of the Effective Date.
(v) Upon such acceptance and recording, from and after the
Effective Date, the Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) [to
the Assignor for amounts which have accrued to the Effective Date and to the
Assignee for amounts which have accrued subsequent to the Effective Date] [to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date]. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Agent for periods prior to
the Effective Date or with respect to the making of this assignment directly
between themselves.
(vi) From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
(vii) This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
Schedule 1
to Assignment and Acceptance
Name of Assignor: _____________________________________________________________
Name and address of Assignee: _________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Effective Date of Assignment: _________________________________________________
Principal Amount of Loans Assigned: $______________________
Funding Percentage Assigned**: ___.___%
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
Title: Title:
Accepted:
[NAME OF AGENT], as Agent
By:
Title:
----------
** Calculate Fundign Percentage that is assigned to at least 15 decimal places
and show as a percentage of the aggregate Unused Commitments of all
Lenders.
EXHIBIT D
FORM OF
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement"), made
effective as of the ____________ day of _________, 199 , by and between Sprint
Spectrum L.P., a Delaware limited partnership ("Sprint Spectrum"), whose address
is 0000 Xxxxx Xxxxxx, 0xx Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, and , a , whose
address is , is to assure the protection and preservation of the confidential
and/or proprietary nature of information to be disclosed or made available to
each other pursuant to or in connection with the transactions contemplated by,
the Credit Agreement dated as of October 2, 1996 (the "Credit Agreement"), by
and among Spring Spectrum, the lenders named therein and Northern Telecom Inc.,
as agent.
NOW, THEREFORE, in reliance upon and in consideration of the
following undertakings, the parties, for themselves, or for any corporation,
partnership, association, joint stock company, limited liability company,
limited liability partnership, or trust directly or indirectly controlling,
controlled by or under common control of such party, or a more than 50% owned
subsidiary of such party (its "Affiliates"), agree as follows:
1. Scope. For purposes of this Agreement, the "Proprietary
Information" of a party disclosing information (the "Discloser") means any and
all information, including, without limitation, all oral, written, graphical,
and electronic information disclosed to the party receiving the information (the
"Recipient") pursuant to, or in connection with the transactions contemplated
by, the Credit Agreement, whether delivered to the Recipient directly by the
Discloser or indirectly through an agent of the Discloser or Recipient.
2. Limitation. The term "Proprietary Information" does not
include information which: (a) has been or may in the future be published or is
now or may in the future be otherwise in the public domain through no fault of
the Recipient; (b) prior to disclosure pursuant to this Agreement is properly
within the legitimate possession of the Recipient; (c) subsequent to disclosure
pursuant to this Agreement, is lawfully received from a third party having
rights in the information without restriction of the third party's right to
disseminate the information and without notice of any restriction against its
further disclosure; (d) is independently developed by the Recipient through
parties who have not had, either directly or indirectly, access to or knowledge
of such Proprietary Information; (e) is approved for disclosure by prior written
permission of an authorized signatory of Discloser; or (f) is obligated to be
produced by law or under order of a court of competent jurisdiction or other
similar requirement of a governmental agency, or is required to be disclosed to,
or is requested by, the Recipient's outside auditors or examiners in connection
with an audit or examination or so long as the party required to disclose the
information provides the other party with prior written notice of any required
disclosure pursuant to such law, order or requirement.
3. Use. Each party agrees to use the Proprietary Information
received from the other party only for the purpose of the servicing or
protection of its interests in respect of the Loans, the Credit Agreement and
the Loan Documents (each as defined in the Credit Agreement). No other rights,
and particularly licenses, trademarks, inventions, copyrights, patents, or any
other intellectual property rights are implied or granted under the Credit
Agreement or this Agreement or by the conveying of Proprietary Information
between the parties. Each party agrees that the other may disclose Proprietary
Information received by it to its Affiliates, employees not permitted under the
Credit Agreement and agents, subject to the terms of this Agreement.
4. Reproduction. Proprietary Information supplied is not to
be reproduced in any form except as required to accomplish the intent of this
Agreement.
5. Duty of Care. All Proprietary Information must be retained
by the Recipient in accordance with its customary procedures for handling
confidential information of this nature and disclosed only to the Recipient's
Affiliates or employees (or , attorneys, accountants and agents who have a
non-disclosure obligation at least as restrictive as this Agreement) who need to
know such information for purposes of the servicing or protection of its
interest in respect of the Loans, the Credit Agreement and the Loan Documents
(each as defined under the Credit Agreement) and the transactions contemplated
thereby and to such third parties as the Discloser has consented to by prior
written approval. In addition, the Recipient must provide the same care to avoid
disclosure not permitted under the Credit Agreement or unauthorized use of the
Proprietary Information as it provides to protect its own similar proprietary
information.
6. Ownership. All Proprietary Information, unless otherwise
specified in writing, (a) remains the property of the Discloser, and (b) must be
used by the Recipient only for the purpose stated herein. Upon termination of
this Agreement, all copies of written, recorded, graphical or other tangible
Proprietary Information must either be returned to the Discloser, or destroyed
(i) after the Recipient's need for it has expired or (ii) upon the request of
the Discloser. At the request of the Discloser, the Recipient will furnish a
certificate of an officer of the Recipient certifying that any Proprietary
Information not returned to Discloser has been destroyed.
7. Right to Disclose. Each party warrants that it has the
right to disclose all Proprietary Information which it will disclose to the
other party pursuant to this Agreement, and each party agrees to indemnify and
hold harmless the other from all claims by a third party related to the wrongful
disclosure of such third party's information. Otherwise, neither party makes any
representation or warranty, express or implied, with respect to any Proprietary
Information. Neither party is liable for indirect, incidental, consequential, or
punitive damages of any nature or kind resulting from or arising in connection
with this Agreement.
8. Right to Enjoin Disclosure. The parties acknowledge that a
Recipient's unauthorized disclosure or use of Proprietary Information may result
in irreparable harm. Therefore, the parties agree that, in the event of
violation or threatened violation of this Agreement, without limiting any other
rights and remedies of each other, a temporary restraining order and/or an
injunction to enjoin disclosure of Proprietary Information may be sought against
the party who has breached or threatened to breach this Agreement and the party
who has breached or threatened to breach this Agreement will not raise the
defense of an adequate remedy at law.
9. Disclosure to Third Parties. All media releases and pubic
announcements or disclosures by either party relating to this Agreement, its
subject matter or the purpose of this Agreement are to be coordinated with and
consented to by the other party in writing prior to the release or announcement.
10. No Partnership or Joint Venture Formed. The exchange of
any Proprietary Information between the parties is not intended to be
interpreted that the parties have formed or will form a partnership, joint
venture or other relationship. Any business relationship between the parties, if
any, must be governed by separate agreement.
11. General. (a) This Agreement is governed and construed
under the laws of the State of Missouri and there are no understandings,
agreements or representations, express or implied, not specified herein. (b)
Except for subsection 9.13 of the Credit Agreement, this Agreement represents
the entire understanding between the parties with respect to the confidentiality
and disclosure of Proprietary Information, and the terms of this Agreement
supersede the terms of any prior agreements or understandings, written or oral
with respect thereto. (c) This Agreement may not be amended except in a writing
signed by the parties. (d) The provisions of this Agreement are to be considered
as severable, and in the event that any provision is held to be invalid or
unenforceable, the parties intend that the remaining provisions will remain in
full force and effect. (e) Captions in this Agreement are for ease of reference
only and should not be considered in the construction of this Agreement. (f)
There are no third party beneficiaries to this Agreement. (g) Failure by a party
to enforce or exercise any provision, right or option contained in this
Agreement will not be construed as a present or future waiver of such provision,
right or option.
IN WITNESS THEREOF, the parties have executed this Agreement
as of the effective date stated above.
SPRINT SPECTRUM L.P. ______________________________
By: By:
Name: Name:
Title: Title:
EXHIBIT E
FORM OF
BORROWING NOTICE
[Date]
To: Northern Telecom Inc., as Agent
Re: Sprint Spectrum L.P.
Reference is hereby made to the Credit Agreement, dated as of
October 2, 1996, among Sprint Spectrum L.P., Northern Telecom Inc., the other
lenders from time to time parties thereto and Northern Telecom Inc., as Agent
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement.
In accordance with subsection 2.2 of the Credit Agreement, the
Borrower requests Loans be made as follows:
Borrowing Date: _________________
Amount of Loans to be borrowed: $___________
ABR Loans: $___________
Initial
Eurodollar Loans: Amount Interest Period
$________ _____ months
$________ _____ months
Amount of Cash Advance: $___________
Identity of invoices for Cash Advance:
[To be provided]
Amount of Credit Advance: $___________
Identity of invoices for Credit Advance:
[To be provided]
Very truly yours,
SPRINT SPECTRUM L.P.
By: ____________________________
Title:
[CONFORMED COPY]
SPRINT SPECTRUM L.P.
-----------------------
$1,300,000,000
CREDIT AGREEMENT
Dated as of October 2, 1996
-----------------------
NORTHERN TELECOM INC.,
as Lender and Agent
-i-
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...................................................... 1
1.1 Defined Terms................................................... 1
1.2 Other Definitional Provisions................................... 22
1.3 Schedules....................................................... 22
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS........................ 22
2.1 Commitments..................................................... 22
2.2 Borrowing Procedure............................................. 23
2.3 Repayment of Loans; Evidence of Debt............................ 25
2.4 Optional Prepayments............................................ 26
2.5 Mandatory Prepayments........................................... 26
2.6 Conversion and Continuation Options............................. 27
2.7 Interest Rates and Payment Dates................................ 28
2.8 Computation of Interest and Fees................................ 28
2.9 Inability to Determine Interest Rate............................ 29
2.10 Pro Rata Treatment and Payments................................. 29
2.11 Illegality...................................................... 29
2.12 Requirements of Law............................................. 30
2.13 Taxes........................................................... 31
2.14 Indemnity....................................................... 34
2.15 Change of Lending Office; Mandatory Assignment or Prepayment.... 34
2.16 Treatment of Certain Prepayments................................ 35
2.17 Use of Proceeds................................................. 35
2.18 Fees............................................................ 36
SECTION 3. REPRESENTATIONS AND WARRANTIES................................... 36
3.1 Financial Condition............................................. 36
3.2 No Change....................................................... 37
3.3 Existence; Compliance with Law.................................. 37
3.4 Power; Authorization; Enforceable Obligations................... 37
3.5 No Legal Bar.................................................... 37
3.6 No Material Litigation.......................................... 38
3.7 No Default...................................................... 38
3.8 Ownership of Property; Liens.................................... 38
3.9 Intellectual Property........................................... 38
3.10 Taxes........................................................... 38
3.11 Federal Regulations............................................. 39
3.12 ERISA........................................................... 39
3.13 Investment Company and Holding Company Act...................... 39
3.14 Subsidiaries; Parents........................................... 40
3.16 Environmental Matters........................................... 40
3.17 Licenses........................................................ 41
3.18 Provisions of Other Vendor Credit Facility...................... 41
3.19 No Material Misstatements....................................... 41
SECTION 4. CONDITIONS PRECEDENT............................................. 42
4.1 Conditions to Initial Loans..................................... 42
4.2 Conditions to Each Loan......................................... 44
SECTION 5. AFFIRMATIVE COVENANTS............................................ 44
5.1 Financial Statements............................................ 45
5.2 Certificates; Other Information................................. 45
5.3 Payment of Obligations.......................................... 46
5.4 Conduct of Business; Maintenance of Existence; Compliance with
Laws.......................................................... 46
5.5 Maintenance of Property; Insurance.............................. 46
5.6 Inspection of Property; Books and Records; Discussions.......... 47
5.7 Notices......................................................... 47
5.8 Environmental Laws.............................................. 48
5.9 After-Acquired Assets........................................... 48
5.10 Delivery of Certain Amendments.................................. 49
5.11 Use of Proceeds................................................. 50
SECTION 6. NEGATIVE COVENANTS............................................... 50
6.1 Financial Condition Covenants................................... 50
6.2 Limitation on Indebtedness...................................... 53
6.3 Limitation on Liens............................................. 55
6.4 Limitation on Guarantee Obligations............................. 57
6.5 Limitation on Fundamental Changes............................... 57
6.6 Limitation on Sale of Assets.................................... 59
6.7 Limitation on Restricted Payments............................... 61
6.8 Limitation on Investments, Loans and Advances................... 62
6.9 Limitation on Transactions with Affiliates...................... 63
6.10 Limitation on Lines of Business; Liabilities of Subsidiaries.... 63
6.11 Limitation on Designation of Secured Obligations................ 64
6.12 Limitation on Interest Rate Agreements.......................... 64
SECTION 7. EVENTS OF DEFAULT................................................ 64
SECTION 8. THE AGENT........................................................ 68
8.1 Appointment..................................................... 68
8.2 Delegation of Duties............................................ 68
8.3 Exculpatory Provisions.......................................... 69
8.4 Reliance by Agent............................................... 69
8.5 Notice of Default and Other Notices............................. 69
8.6 Non-Reliance on Agent and Other Lenders......................... 70
8.7 Indemnification................................................. 70
8.8 Agent in Its Individual Capacity................................ 70
8.9 Successor Agent................................................. 71
SECTION 9. MISCELLANEOUS.................................................... 71
9.1 Amendments and Waivers.......................................... 71
9.2 Notices......................................................... 72
9.3 No Waiver; Cumulative Remedies.................................. 73
9.4 Survival of Representations and Warranties...................... 73
9.5 Payment of Expenses and Taxes; Indemnity........................ 73
9.6 Successors and Assigns; Participations and Assignments.......... 74
9.7 Adjustments; Set-off............................................ 76
9.8 Counterparts.................................................... 77
9.9 Severability.................................................... 77
9.10 Integration..................................................... 77
9.11 GOVERNING LAW................................................... 77
9.12 Submission To Jurisdiction...................................... 78
9.13 Confidentiality................................................. 78
9.14 Non-Recourse.................................................... 78
9.15 Securities Act Matters.......................................... 79
9.16 Other Agreements................................................ 79
9.17 WAIVERS OF JURY TRIAL........................................... 79
9.18 Interest Rate Limitation........................................ 79
9.19 Release of Guarantees and Collateral............................ 80
-iv-
SCHEDULES:
Schedule I Miscellaneous Provisions
Schedule II Lender Commitments
Schedule 3.17(a) The Borrower's MTA's
Schedule 6.2(g) Existing Indebtedness
Schedule 6.4(a) Existing Guarantee Obligations
EXHIBITS:
Exhibit A Form of Note
Exhibit B-1 Form of Legal Opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
Exhibit B-2 Form of Legal Opinion of Xxxxxxx X. Xxxxxx, Esq.
Exhibit B-3 Form of Legal Opinion of Xxxxxxxx & Xxxxxxxx LLP
Exhibit C Form of Assignment and Acceptance
Exhibit D Form of Confidentiality Agreement
Exhibit E Form of Borrowing Notice
