EXHIBIT 10.5
AMENDED AND RESTATED CONSENT AND AGREEMENT
(iPCS Wireless)
This Amended and Restated Consent and Agreement (this "Consent and
Agreement") is entered into as of July 12, 2000, between SPRINT SPECTRUM L.P., a
Delaware limited partnership ("Sprint Spectrum"), SPRINTCOM, INC., a Kansas
corporation ("SprintCom"), SPRINT COMMUNICATIONS COMPANY, L.P., a Delaware
limited partnership ("Sprint Communications"), WIRELESSCO, L.P., a Delaware
limited partnership ("WirelessCo" and together with Sprint Spectrum, SprintCom
and Sprint Communications, the "Sprint Parties"), and TORONTO DOMINION (TEXAS),
INC., a Delaware corporation, as administrative agent (together with any
successors thereof in accordance with the Credit Agreement hereinafter
described, the "Administrative Agent") for the lenders under that certain Credit
Agreement among iPCS WIRELESS, INC., a Delaware corporation ("Affiliate"), the
Administrative Agent and the lenders from time to time party thereto (the
"Lenders").
The parties are entering into this Consent and Agreement because (1)
Illinois PCS, L.L.C., an Illinois limited liability company ("Illinois PCS"),
and the Sprint Parties entered into the Management Agreement (defined below),
(2) Illinois PCS has reorganized its ownership and operating structure,
resulting in Affiliate (rather than Illinois PCS) being the borrower under the
Credit Agreement (defined below) and the Manager under the Sprint PCS Management
Agreement and thereby operating the Service Area Network and owning the
Operating Assets, (3) Affiliate and certain of its affiliated parties, certain
lenders and the Administrative Agent are entering into an Amended and Restated
Credit Agreement, and (4) Toronto Dominion (Texas), Inc. has succeeded Nortel
Networks Inc. as Administrative Agent under the Original Credit Agreement
(hereinafter described) and the Original Consent and Agreement (hereinafter
described). This Consent and Agreement amends, restates, and supersedes that
certain Consent and Agreement entered into as of August 3, 1999, by and among
the Sprint Parties and Nortel Networks Inc., which was acknowledged by Illinois
PCS (the "Original Consent and Agreement").
Affiliate has succeeded as Manager to the Sprint PCS Management Agreement
dated and effective as of January 22, 1999 (as it may be amended, modified, or
supplemented from time to time, the "Management Agreement") between Illinois PCS
and the Sprint Parties providing for the design, construction and management of
the Service Area Network (as therein defined). Affiliate has succeeded to
Illinois PCS' obligations and responsibilities under and with respect to the
Sprint PCS Services Agreement (as it may be amended, modified, or supplemented
from time to time, the "Services Agreement") and the Sprint Trademark and
Service ▇▇▇▇ License Agreement and the Sprint Spectrum Trademark and Service
▇▇▇▇ License Agreement (together, as they may be amended, modified, or
supplemented from time to time, the "License Agreements") (the Management
Agreement, the Services Agreement and the License Agreements and all other
agreements between Affiliate and its subsidiaries, on the one hand, and any one
or more of the Sprint Parties or any subsidiary of Sprint Corporation on the
other hand (whether entered into prior to, on, or after the date hereof) that
relate to the Service Area Network as they may be amended, modified, or
supplemented from time to time, collectively, the "Sprint Agreements").
Affiliate has entered into or concurrently herewith is entering into that
certain Amended and Restated Credit Agreement dated as of July 12, 2000, with
the Administrative Agent and the Lenders (such Amended and Restated Credit
Agreement, as it may be amended, supplemented, restated, replaced or otherwise
modified from time to time, the "Credit Agreement"), to provide financing in an
aggregate amount of $140,000,000 for a portion of the costs of the design and
construction of the Service Area Network and for certain other purposes. The
Credit Agreement amends, restates and supersedes that certain Credit Agreement
entered into as of May 14, 1999, by and among Illinois PCS, Nortel Networks Inc.
and certain other parties (the "Original
Credit Agreement"). The Credit Agreement and each note, security agreement,
pledge agreement, guaranty and any and all other agreements, documents or
instruments entered into in connection with any of the foregoing, as the same
may from time to time be amended, supplemented, restated, replaced or otherwise
modified from time to time, shall collectively be referred to as the "Loan
Documents."
The Obligations under the Loan Documents are guaranteed by iPCS, Inc., the
sole stockholder of Affiliate, and all existing and future direct and indirect
subsidiaries of Affiliate (collectively, the "Guarantors") pursuant to those
certain Guaranty Agreements executed by the Guarantors in favor of the
Administrative Agent (the "Guaranty Documents").
As a condition to the availability of credit to Affiliate under the Credit
Agreement, the Administrative Agent and the Lenders have required the execution
and delivery of this Consent and Agreement by the Sprint Parties and have
required that Affiliate, iPCS, Inc. and the other Guarantors acknowledge,
consent and agree to all terms and provisions of this Consent and Agreement.
SprintCom and WirelessCo hold, directly or indirectly, the Licenses for the
Service Areas managed by Affiliate as contemplated in the Management Agreement.
As used in this Consent and Agreement, the term "Sprint PCS" shall refer in each
particular instance or application to SprintCom and/or WirelessCo, based on
which of the two entities owns the License in that portion of the Service Area
to which the subject of the instance or application applies.
All capitalized terms in this Consent and Agreement shall have the same
meanings ascribed to them in the Management Agreement unless otherwise provided
in this Consent and Agreement; provided, that the terms "Commitments",
"Default", "Event of Default", "Loan Documents", "Obligations" and
"Reorganization Transactions" shall have the meanings ascribed to them in the
Credit Agreement.
Accordingly, each Sprint Party and the Administrative Agent, on behalf of
itself and for the Lenders, hereby agrees as follows:
SECTION 1. Consent to Security Interest. In connection with the
transactions contemplated by the Credit Agreement and the other Loan Documents,
(a) Affiliate has granted or will grant to the Administrative Agent, for the
benefit of the Lenders, a first priority security interest in and lien upon
substantially all of its assets and property, tangible and intangible, whether
now owned or hereafter acquired or arising, and all proceeds and products
thereof and accessions thereto, including but not limited to the Operating
Assets, (b) iPCS, Inc. has granted or will grant to the Administrative Agent,
for the benefit of the Lenders, a first priority security interest in and
pledge of all stock or other equity interests in Affiliate and Affiliate has
granted or will grant to the Administrative Agent, for the benefit of the
Lenders, a first priority security interest in and pledge of all stock or other
equity interests it holds in each existing and future direct and indirect
subsidiaries of Affiliate (the "Pledged Equity"), and (c) Affiliate has granted
or will grant to the Administrative Agent, for the benefit of the Lenders, a
first priority security interest in and lien upon the rights of Affiliate in, to
and under the Sprint Agreements. The foregoing security interests, liens and
pledges are referred to collectively as the "Security Interests" and the
foregoing assets and property in which the Administrative Agent, for the benefit
of the Lenders, has been or will be granted a first priority security interest
in and lien are referred to collectively as the "Collateral". In addition to
the foregoing, each of the existing and future direct and indirect subsidiaries
of Affiliate have granted or will grant to the Administrative Agent, for the
benefit of the Lenders, a first priority security interest in and lien upon
substantially all of its assets and property, tangible and intangible, whether
now owned or hereafter acquired or arising, and all proceeds and products
thereof and accessions thereto, which security interests and liens are referred
to collectively as the "Additional Security
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Interests" and which assets and property are referred to collectively as the
"Additional Collateral." Each Sprint Party (i) acknowledges notice of the Credit
Agreement and the other Loan Documents, (ii) consents to the granting of the
Security Interests in the Collateral and of the Additional Security Interests in
the Additional Collateral to the Administrative Agent, for the benefit of the
Lenders, and (iii) agrees that (a) neither it nor any subsidiary of Sprint
Corporation will challenge or contest that the Security Interests and the
Additional Security Interests are valid, enforceable and duly perfected first
priority security interests and liens in and to the Collateral and the
Additional Collateral, (b) neither it nor any subsidiary of Sprint Corporation
will argue that any such Security Interest or Additional Security Interest is
subject to avoidance, limitation or subordination under any legal or equitable
theory or cause of action, and (c) so long as the Management Agreement is in
effect, it will not sell, transfer or assign all or part of the Licenses that
Affiliate has the right to use; provided, however, that notwithstanding the
foregoing, a Sprint Party may at any time sell, transfer or assign all or part
of the Licenses that Affiliate has the right to use in accordance with a
transaction allowed under Section 17.15.5 of the Management Agreement, so long
as the buyer, transferee or assignee, as the case may be, agrees to be bound by
the terms of this Consent and Agreement as such terms relate to such Licenses.
Each Sprint Party acknowledges and agrees that (i) Sections 17.15.1 and
17.15.2 of the Management Agreement do not apply to the assignment of
Affiliate's rights under the Sprint Agreements to the Administrative Agent or
the Lenders under the Loan Documents or in connection with a transaction
permitted pursuant to this Consent and Agreement to any other Person pursuant to
the Loan Documents or to any other assignment in connection with any transaction
permitted pursuant to this Consent and Agreement and (ii) Section 17.15.3 of the
Management Agreement shall not apply to any Change of Control of Affiliate in
connection with the exercise by the Administrative Agent of any of its rights or
remedies under the Loan Documents, including without limitation in connection
with the sale of the partnership, membership or shareholder interests of
Affiliate to any Person or to any other Change of Control of Affiliate;
provided, however, Section 17.15.3 of the Management Agreement shall apply to
any such transaction if such transaction is not with the Administrative Agent or
the Lenders or is not a transaction permitted pursuant to this Consent and
Agreement. It is understood that any assignment described in this Section 1 to
the Administrative Agent or the Lenders is hereby consented to by the Sprint
Parties; provided, that any subsequent assignment by the Administrative Agent or
the Lenders shall be in accordance with the terms of this Consent and Agreement.
SECTION 2. Payments. Upon receipt of the Administrative Agent's written
instructions, each Sprint Party agrees to make all payments (if any) to be made
by it under the Sprint Agreements, subject to its rights of setoff or recoupment
with respect to such payments as permitted under Section 10.6 of the Management
Agreement, to Affiliate directly to the Administrative Agent, or otherwise as
the Administrative Agent shall direct; provided, that during the period that
such Sprint Party is making such payments directly to the Administrative Agent
or its designee pursuant to this Section 2, such Sprint Party's setoff and
recoupment rights under such Section 10.6 shall not be limited to undisputed
amounts. The Administrative Agent hereby agrees that the Administrative Agent
will not give any such written instructions for it to receive such payments
directly from a Sprint Party unless an Event of Default has occurred under the
Credit Agreement and is continuing. Such written instructions to make payments
directly to the Administrative Agent shall be effective only so long as an Event
of Default is continuing, and the Administrative Agent will revoke such
instructions promptly following the cure of such Event of Default. Any payments
made by any Sprint Party directly to, or at the direction of, the Administrative
Agent shall fully satisfy any obligation of such Sprint Party to make payments
to Affiliate under the Sprint Agreements to the extent of such payments.
SECTION 3. Notice and Effect of Event of Default, Management Agreement
Breach and Event of Termination. The Administrative Agent agrees to provide to
Sprint Spectrum a copy of any written notice that the Administrative Agent sends
to Affiliate, promptly after sending such notice, that a Default or an Event
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of Default has occurred and is continuing, and Sprint Spectrum agrees to provide
to the Administrative Agent a copy of any written notice that Sprint Spectrum
sends to Affiliate, promptly after sending such notice, that an Event of
Termination or an event that if not cured, or if notice is provided, will
constitute an Event of Termination (each of an Event of Termination and an event
that if not cured would constitute an Event of Termination, a "Management
Agreement Breach") has occurred. Sprint Spectrum acknowledges that the
Administrative Agent has informed it that an Event of Termination constitutes an
Event of Default under the Loan Documents, and Sprint Spectrum further
acknowledges that the Management Agreement does not prohibit Affiliate from
curing such an Event of Default.
SECTION 4. Event of Default without a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager Appointed. Upon
and during the continuation of an Event of Default when no Management
Agreement Breach as to which Sprint Spectrum has given the Administrative
Agent notice exists on the original date of occurrence of such Event of
Default, the Administrative Agent may, by prior written notice to Sprint
Spectrum, (i) allow Affiliate to continue to act as the Manager under the
Sprint Agreements, (ii) after (A) Acceleration (as defined in Section 6(a))
of the Obligations under the Credit Agreement, (B) the "Maturity Date" (as
defined in the Credit Agreement) in the event the Obligations have not been
paid in full as of such date, or (C) the occurrence of an Event of Default
set forth in Section 11.1(e) or 11.1(f) of the Credit Agreement (each of
such occurrences identified in this Section 4(a)(ii), an "IM Appointment
Triggering Event"), appoint Sprint Spectrum to act as "Interim Manager"
under the Sprint Agreements, or (iii) after an IM Appointment Triggering
Event, appoint a Person other than Sprint Spectrum to act as Interim
Manager under the Sprint Agreements. If the Administrative Agent initially
allows Affiliate to continue to act as the Manager under the Sprint
Agreements, the Administrative Agent may later, during a continuation of an
Event of Default and after an IM Appointment Triggering Event, remove the
Affiliate as Manager and take the action described above in clauses (ii)
and (iii). The date on which a Person begins serving as Interim Manager
shall be the "Commencement Date."
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim Manager. If
the Administrative Agent appoints Sprint Spectrum as Interim Manager,
within 14 days after its appointment Sprint Spectrum shall accept the
position or designate another Person (a "Sprint Spectrum Designee") to act
as Interim Manager under the Sprint Agreements. The Administrative Agent
shall accept Sprint Spectrum and any Sprint Spectrum Designee that is then
acting as an Other Manager (other than Affiliate) to act as Interim Manager
under the Sprint Agreements. Any Sprint Spectrum Designee that is not an
Other Manager must be acceptable to the Administrative Agent, which
acceptance will not be unreasonably withheld. If, within 30 days after the
Administrative Agent gives Sprint Spectrum notice of its appointment as
Interim Manager, Sprint Spectrum or a Sprint Spectrum Designee does not
agree to act as Interim Manager, then the Administrative Agent shall have
the right to appoint an Administrative Agent Designee (as defined in
Section 4(c)) as Interim Manager in accordance with Section 4(c). At the
discretion of the Administrative Agent, Sprint Spectrum or the Sprint
Spectrum Designee shall serve as Interim Manager for up to six months from
the Commencement Date.
Upon the expiration of its initial six-month period as Interim Manager
under the Sprint Agreements, Sprint Spectrum or the Sprint Spectrum
Designee will agree, at the written request of the Administrative Agent, to
serve as Interim Manager for up to six months from such expiration date
until the Administrative Agent gives Sprint Spectrum or the Sprint Spectrum
Designee at least 30
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days' written notice of its desire to terminate the relationship; provided,
that the extended period will be for 12 months rather than six months (for
a complete term of 18 months) in the event, as of the date of the initial
appointment, the aggregate number of pops that Affiliate and all Other
Managers have the right to serve under their respective management
agreements with the Sprint Parties is less than 40 million (such six or 12
month period, the "Extension Period"). If Sprint Spectrum's or the Sprint
Spectrum Designee's term as Interim Manager is so extended at the request
of the Administrative Agent, then the Administrative Agent agrees that
Sprint Spectrum's or the Sprint Spectrum Designee's right to be reimbursed
by the Affiliate promptly for all amounts previously expended by Sprint
Spectrum or the Sprint Spectrum Designee under Section 11.6.3 of the
Management Agreement (which expenditures were incurred in accordance with
Section 9 of this Consent and Agreement) shall no longer be subordinated to
the Obligations as provided in Section 9 in this Consent and Agreement, and
Sprint Spectrum's or the Sprint Spectrum Designee's right to be reimbursed
by Affiliate for any expenses it incurs pursuant to its rights under
Section 11.6.3 of the Management Agreement as provided in the Management
Agreement (which expenditures were incurred in accordance with Section 9 of
this Consent and Agreement) shall not be subject to the subordination to
the Obligations as provided in Section 9 of this Consent and Agreement;
provided, that Sprint Spectrum or the Sprint Spectrum Designee's right to
be reimbursed for amounts expended under Section 11.6.3 of the Management
Agreement that exceed in an aggregate amount 5% of Affiliate's partner's,
shareholder's or member's equity or capital account plus Affiliate's long-
term debt (i.e., notes that on their face are scheduled to mature more than
one year from the date issued), as reflected on Affiliate's books (the
"Reimbursement Limit") shall remain subordinated to the Obligations as
provided in Section 9 of this Consent and Agreement. Notwithstanding any
other provision in this Section 4(b) to the contrary, Sprint Spectrum or
the Sprint Spectrum Designee shall not be required to continue to serve as
Interim Manager during the Extension Period at any time after 30 days
following delivery by it to the Administrative Agent of written notice that
Sprint Spectrum or the Sprint Spectrum Designee needs to expend amounts
under Section 11.6.3 of the Management Agreement that Sprint Spectrum or
the Sprint Spectrum Designee reasonably believes will not be reimbursed
based on the projected Collected Revenues for the remainder of the
Extension Period or reimbursed by the Lenders. If it becomes necessary for
Sprint Spectrum or the Sprint Spectrum Designee to expend any amount that
it believes will not be reimbursed or that exceeds the Reimbursement Limit,
Sprint Spectrum or the Sprint Spectrum Designee is not required to incur
such expense.
Upon the termination or expiration of the term of Sprint Spectrum or
the Sprint Spectrum Designee as Interim Manager, the Administrative Agent
shall have the right to appoint a successor Interim Manager in accordance
with Section 4(c).
(c) Administrative Agent Designee as Interim Manager. If the
Administrative Agent elects to appoint a Person other than Sprint Spectrum
to act as Interim Manager under the Sprint Agreements (an "Administrative
Agent Designee") as permitted under Sections 4(a)(iii) and 4(b), such
Administrative Agent Designee must (i) agree to serve as Interim Manager
for six months unless terminated earlier by Sprint Spectrum because of a
material breach by the Administrative Agent Designee of the terms of the
Sprint Agreements that is not timely cured or by the Administrative Agent
in its discretion, (ii) meet the applicable "Successor Manager
Requirements" set forth below in Section 13, and (iii) agree to comply with
the terms of the Sprint Agreements but will not be required to assume the
existing liabilities of Affiliate. In the case of a proposed Administrative
Agent Designee, Sprint Spectrum shall provide to the Administrative Agent,
within 10 Business Days after the request therefor, a detailed description
of all information reasonably requested by Sprint Spectrum to enable Sprint
Spectrum to determine if a proposed Administrative Agent Designee satisfies
the
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Successor Manager Requirements. Sprint Spectrum agrees to inform the
Administrative Agent within 20 days after it receives such information
respecting such proposed Administrative Agent Designee from the
Administrative Agent whether such designee satisfies the Successor Manager
Requirements. If Sprint Spectrum does not so inform the Administrative
Agent within such 20-day period, then Sprint Spectrum shall be deemed to
agree, for all purposes of this Consent and Agreement, that such proposed
designee satisfies the Successor Manager Requirements. A Person that
satisfies the Successor Manager Requirements (or is deemed to satisfy such
requirements) qualifies under the Management Agreement to become a
Successor Manager, unless the Administrative Agent Designee materially
breaches the terms of a Sprint Agreement while acting as Interim Manager or
no longer meets the Successor Manager Requirements. The Administrative
Agent Designee may continue to serve as Interim Manager after the initial
six-month period at the Administrative Agent's discretion, so long as the
Administrative Agent Designee continues to satisfy the Successor Manager
Requirements and it does not materially breach the terms of the Sprint
Agreements. If the Administrative Agent Designee materially breaches any
Sprint Agreement while acting as Interim Manager, then Sprint Spectrum and
the Administrative Agent have the rights set forth in Section 5; provided,
that Sprint Spectrum may not allow Affiliate to act as the Manager of the
Sprint Agreements without the Administrative Agent's consent.
SECTION 5. Event of Default Created by a Management Agreement Breach.
(a) Affiliate Remains as Manager or Interim Manager Appointed. Upon an
Event of Default created by a Management Agreement Breach (so long as at
such time an Event of Default not created by a Management Agreement Breach
as to which the Administrative Agent has given Sprint Spectrum notice is
not in existence), Sprint Spectrum may by prior written notice to the
Administrative Agent (i) allow Affiliate to continue to act as the Manager
under the Sprint Agreements if approved by the Administrative Agent, (ii)
act as Interim Manager under the Sprint Agreements, or (iii) appoint a
Sprint Spectrum Designee to act as Interim Manager under the Sprint
Agreements as provided in paragraph (b) below. If Sprint Spectrum initially
allows Affiliate to continue to act as the Manager under the Sprint
Agreements, Sprint Spectrum may later remove the Affiliate as Manager and
take the action described above in clauses (ii) and (iii). The
Administrative Agent shall have no right to appoint an Interim Manager when
an Event of Default is caused by a Management Agreement Breach (unless an
Event of Default not created by a Management Agreement Breach is in
existence), unless Sprint Spectrum elects not to act as Interim Manager or
elects not to appoint a Sprint Spectrum Designee.
(b) Sprint Spectrum or Sprint Spectrum Designee as Interim Manager. If
Sprint Spectrum acts as Interim Manager or designates a Sprint Spectrum
Designee to act as Interim Manager under the Sprint Agreements, the Interim
Manager shall serve as Interim Manager for up to six months from the
Commencement Date, at the discretion of Sprint Spectrum. The Administrative
Agent shall accept Sprint Spectrum and any Sprint Spectrum Designee that is
then acting as an Other Manager (other than Affiliate) to act as Interim
Manager under the Sprint Agreements. Any Sprint Spectrum Designee that is
not then acting as an Other Manager must be acceptable to the
Administrative Agent, which acceptance will not be unreasonably withheld.
Upon the expiration of its initial six-month period as Interim Manager
under the Sprint Agreements, Sprint Spectrum or the Sprint Spectrum
Designee will agree to serve as Interim Manager for the Extension Period
until the Administrative Agent gives Sprint Spectrum or the Sprint Spectrum
Designee at least 30 days' written notice of its desire to terminate the
relationship. If Sprint
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Spectrum's or the Sprint Spectrum Designee's term as Interim Manager is
extended, then the Administrative Agent agrees that Sprint Spectrum's or
the Sprint Spectrum Designee's right to be reimbursed by the Affiliate
promptly for all amounts previously expended by Sprint Spectrum or the
Sprint Spectrum Designee under Section 11.6.3 of the Management Agreement
(which expenditures were incurred in accordance with Section 9 of this
Consent and Agreement) shall no longer be subordinated to the Obligations
as provided in Section 9 of this Consent and Agreement, and Sprint
Spectrum's or the Sprint Spectrum Designee's right to be reimbursed by the
Affiliate for any expenses it incurs pursuant to its rights under Section
11.6.3 of the Management Agreement as provided in the Management Agreement
(which expenditures were incurred in accordance with Section 9 of this
Consent and Agreement) shall not be subject to subordination to the
Obligations as provided in Section 9 of this Consent and Agreement;
provided, that Sprint Spectrum's or the Sprint Spectrum Designee's right to
be reimbursed for amounts expended under Section 11.6.3 of the Management
Agreement in an aggregate amount that exceed the Reimbursement Limit shall
remain subordinated to the Obligations as provided in Section 9 of this
Consent and Agreement. Notwithstanding any other provision in this Section
5(b) to the contrary, Sprint Spectrum or the Sprint Spectrum Designee shall
not be required to continue to serve as Interim Manager during the
Extension Period at any time after 30 days following delivery by it to the
Administrative Agent of written notice that Sprint Spectrum or the Sprint
Spectrum Designee needs to expend amounts under Section 11.6.3 of the
Management Agreement that Sprint Spectrum or the Sprint Spectrum Designee
reasonably believes will not be reimbursed based on the projected Collected
Revenues for the remainder of the Extension Period or reimbursed by the
Lenders. If it becomes necessary for Sprint Spectrum or the Sprint Spectrum
Designee to expend any amount that it believes will not be reimbursed or
that exceeds the Reimbursement Limit, Sprint Spectrum or the Sprint
Spectrum Designee is not required to incur such expense.
Upon the termination or expiration of the term of Sprint Spectrum or
the Sprint Spectrum Designee as Interim Manager and with the consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), Sprint Spectrum shall have the right to appoint a successor
Interim Manager in accordance with Section 5(a).
(c) Administrative Agent Designee as Interim Manager. Notwithstanding
anything in paragraph (a) above to the contrary, if, after Acceleration (as
defined in Section 6(a) of this Consent and Agreement) and within 30 days
after Sprint Spectrum gives the Administrative Agent notice of a Management
Agreement Breach, Sprint Spectrum does not agree to act as Interim Manager
or does not obtain the consent of a Sprint Spectrum Designee to act as
Interim Manager under the Sprint Agreements, or if Sprint Spectrum or the
Sprint Spectrum Designee gives the Administrative Agent notice of its
resignation as Interim Manager and Sprint Spectrum fails to appoint a
successor in accordance with Section 5(b) within 30 days after such
resignation, the Administrative Agent may appoint an Administrative Agent
Designee to act as Interim Manager. Such Administrative Agent Designee
must (i) agree to serve as Interim Manager for six months unless terminated
earlier by Sprint Spectrum because of a material breach by the
Administrative Agent Designee of the terms of the Sprint Agreements or by
the Administrative Agent in its discretion, (ii) meet the applicable
Successor Manager Requirements, and (iii) agree to comply with the terms of
the Sprint Agreements. In the case of a proposed Administrative Agent
Designee, Sprint Spectrum shall provide to the Administrative Agent, within
10 Business Days after the request therefor, a detailed description of all
information reasonably requested by Sprint Spectrum to enable Sprint
Spectrum to determine if a proposed Administrative Agent Designee satisfies
the Successor Manager Requirements. Sprint Spectrum agrees to inform the
Administrative Agent within 20 days after it receives such information
respecting
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such proposed Administrative Agent Designee from the Administrative Agent
whether such designee satisfies the Successor Manager Requirements. If
Sprint Spectrum does not so inform the Administrative Agent within such 20-
day period, then Sprint Spectrum shall be deemed to agree, for all purposes
of this Consent and Agreement, that such proposed designee satisfies the
Successor Manager Requirements. A Person that satisfies the Successor
Manager Requirements qualifies under the Management Agreement to become a
Successor Manager, unless the Administrative Agent Designee materially
breaches the terms of a Sprint Agreement while acting as Interim Manager or
no longer meets the Successor Manager Requirements. The Administrative
Agent Designee may continue to serve as Interim Manager after the initial
six-month period at the Administrative Agent's discretion, so long as the
Administrative Agent Designee continues to satisfy the Successor Manager
Requirements and it does not materially breach the terms of the Sprint
Agreements. If the Administrative Agent Designee materially breaches any
Sprint Agreement while acting as Interim Manager, then Sprint Spectrum and
the Administrative Agent have the rights set forth in Section 5; provided,
that Sprint Spectrum may not allow Affiliate to act as the Manager of the
Sprint Agreements without the Administrative Agent's consent.
SECTION 6. Purchase and Sale of the Operating Assets. Upon the occurrence
and during the continuation of an Event of Default, the following provisions
shall govern the purchase and sale of the Operating Assets:
(a) Acceleration of the Obligations Under the Loan Documents. In the
event the Lenders accelerate the maturity of the Obligations under the Loan
Documents (an "Acceleration" and, the date thereof, an "Acceleration
Date"), the Administrative Agent shall give written notice thereof to
Sprint Spectrum. Upon receipt of notice of Acceleration, Sprint Spectrum
shall have the right, to which right Affiliate and Guarantors, by
acknowledging this Consent and Agreement, expressly agree, to purchase the
Operating Assets from Affiliate for an amount equal to the greater of (i)
72% of the Entire Business Value (as defined in the Management Agreement),
of Affiliate valued in accordance with the procedure set forth in Section
11.7 of the Management Agreement (with the assumption that the deemed
ownership of the Disaggregated License under Section 11.7.3 of the
Management Agreement includes the transfer of the Sprint Party customers as
contemplated by Section 11.4 of the Management Agreement), and (ii) the
aggregate amount of the Obligations. Sprint Spectrum shall, within 60 days
of receipt of notice of Acceleration, give Affiliate and the Administrative
Agent notice of its intent to exercise the purchase right. In the event
Sprint Spectrum gives the Administrative Agent written notice of its intent
to purchase the Operating Assets, the Administrative Agent agrees that it
shall not enforce its Security Interests in the Collateral until the
earlier to occur of (i) expiration of the period consisting of 120 days
after the Acceleration Date (or such later date that shall be provided for
in the purchase agreement and acceptable to the Administrative Agent in its
discretion to close the purchase of the Operating Assets) or (ii) receipt
by the Administrative Agent and Affiliate from Sprint Spectrum of written
notice that Sprint Spectrum has determined not to proceed with the closing
of the purchase of the Operating Assets for any reason. If after the 120-
day period after the Acceleration Date, Affiliate receives any purchase
offer for the Operating Assets or the Pledged Equity that is confirmed in
writing by Affiliate to be acceptable to Affiliate, Sprint Spectrum shall
have the right, subject to the consent of the Administrative Agent, to
purchase the Operating Assets or the Pledged Equity, as the case may be, on
terms and conditions at least as favorable to Affiliate as the terms and
conditions proposed in such offer so long as within 14 Business Days after
Sprint Spectrum's receipt of such other offer Sprint Spectrum offers to
purchase the Operating Assets or the Pledged Equity and so long as the
conditions of Sprint Spectrum's offer and the amount of time it will take
Sprint Spectrum to effect such purchase is acceptable to Affiliate and
Administrative Agent. Any
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such offer shall be confirmed in writing by the third party offeror. In the
event Sprint Spectrum exercises its rights under this Section 6(a), (i)
Affiliate shall sell the Operating Assets or the Pledged Equity to Sprint
Spectrum, (ii) the Administrative Agent and the Lenders shall consent to
such purchase and sale provided that the proceeds thereof shall be
sufficient to repay the aggregate amount of the Obligations, and (iii)
Sprint Spectrum shall make all payments to be made under this Section 6(a)
to the Administrative Agent for its application against the Obligations and
any additional amounts shall be paid to Affiliate or any other owner of the
assets sold unless otherwise required by law or by this Consent and
Agreement. The purchase right of the Sprint Parties under this Section 6(a)
shall be in substitution of the purchase rights of the Sprint Parties under
Section 11.6.1 of the Management Agreement. If Sprint Spectrum purchases
the Operating Assets or the Pledged Equity as permitted under this Section
6(a), the Administrative Agent and the Guarantors will release or assign
their interests in the Collateral, the Additional Collateral and the
Guaranty Documents as described below in Section 6(e) upon payment in full
of the aggregate amount of the Obligations and the termination of all
Commitments to advance credit under the Credit Agreement.
(b) Sale of Operating Assets to Third Parties. If Sprint Spectrum does
not purchase the Operating Assets after an Acceleration as described above
in Section 6(a), the Collateral may be sold as follows:
(i) Sale to Successor Manager. The Collateral may be sold by the
Administrative Agent (in its sole discretion) in the exercise of certain of
its rights and remedies as a secured party under the Loan Documents or by
Affiliate, at the discretion of the Administrative Agent, to a person that
satisfies the Successor Manager Requirements. Sprint Spectrum shall provide
to the Administrative Agent, with a copy to Affiliate, within 10 Business
Days after the request therefor, a detailed description of all information
reasonably requested by Sprint Spectrum to enable Sprint Spectrum to
determine if a proposed buyer satisfies the Successor Manager Requirements.
Sprint Spectrum agrees to inform the Administrative Agent and Affiliate
within 20 days after it receives such information respecting such proposed
buyer from the Administrative Agent whether such designee satisfies the
Successor Manager Requirements. If Sprint Spectrum does not so inform the
Administrative Agent within such 20-day period, then Sprint Spectrum shall
be deemed to agree, for all purposes of this Consent and Agreement, that
such proposed designee satisfies the Successor Manager Requirements. If the
proposed buyer satisfies the Successor Manager Requirements (or is deemed
to satisfy such requirements) and wishes to become a "Successor Manager",
the buyer must agree to be bound by the Sprint Agreements; provided, that
buyer shall have no responsibility or liability for any liability to any
Person other than a Sprint Party and Related Party of Sprint Spectrum
arising out of Affiliate's operations prior to the date buyer becomes bound
by the Sprint Agreements. In such case the Sprint Agreements shall remain
in full force and effect with the buyer as Successor Manager and this
Consent and Agreement shall remain in full force and effect for the benefit
of the Successor Manager and any Person providing senior secured debt
financing to such Successor Manager if required by such Person. Sprint
Spectrum agrees, with respect to any past failure of Affiliate to perform
any obligation under the Sprint Agreements, that the Successor Manager
shall have the same amount of time to perform such obligation that
Affiliate had under the Sprint Agreements, with the performance period
commencing on the date on which the buyer becomes a Successor Manager.
Sprint Spectrum shall permit the performance period set forth in the
Management Agreement to be extended for such period of time that Sprint
Spectrum believes is reasonable to allow Successor Manager to perform such
unperformed obligations.
9
(ii) Sale to Other than Successor Manager. The Collateral may be
sold pursuant to the exercise by the Administrative Agent or the Lenders of
their rights and remedies under the Loan Documents or by Affiliate, at the
discretion of the Administrative Agent (subject to requirements of
applicable law) to a person that does not satisfy the Successor Manager
Requirements or to a person that does not wish to become a Successor
Manager, but only under the following conditions:
(A) the Sprint Parties may terminate the Sprint Agreements
with such buyer following the closing of such purchase (and the
Administrative Agent and the buyer shall have no rights thereto or
thereunder with respect to events occurring after the closing of such
purchase);
(B) the buyer may purchase the Disaggregated License as
described below in Section 6(b)(iv) and with the Disaggregated License
having the characteristics described in the definition thereof; and
(C) the purchase agreement with the buyer contains the
requirements set forth in Section 6(c) of this Consent and Agreement.
(iii) Confidentiality Agreement. Before any potential buyer is
provided Confidential Information respecting the potential purchase of any
of the Collateral (which buyer shall be entitled to receive), the potential
buyer shall execute a confidentiality agreement in the form attached as
Exhibit A with such changes thereto as may be reasonably requested by the
parties to the agreement; provided, however, in the event the potential
buyer does not satisfy the Successor Manager Requirements or has notified
Affiliate, Sprint Spectrum or the Administrative Agent that it does not
intend to be a Successor Manager, Confidential Information that constitutes
or relates to any technical, marketing, financial, strategic or other
information concerning any of the Sprint Parties and that does not pertain
to the business of Affiliate shall not be permitted to be provided to such
potential buyer.
(iv) Sale of Disaggregated Licenses. Sprint PCS will sell
Disaggregated Licenses as follows when required under Section 6(b)(ii)(B):
(A) If a buyer wishes to purchase spectrum in connection
with its purchase of the Operating Assets, it will purchase such spectrum
from the Affiliate and Sprint PCS as follows. The buyer will purchase from
the Affiliate or its Related Parties any licenses that Affiliate or such
Related Parties own (the "Affiliate's Licenses"). If the Affiliate's
Licenses were not being used to operate the Service Area Network, Sprint
Spectrum will reimburse the buyer for the microwave relocation costs
incurred to clear the spectrum bought from the Affiliate or its Related
Parties that the buyer will need to use to operate the Service Area Network
as constructed on the date that the buyer purchases the Operating Assets.
If the buyer does not meet the FCC requirements to buy the Affiliate's
Licenses, the buyer will seek a waiver from the FCC of the restrictions
that prohibit the buyer's ownership of such licenses. While any such FCC
application is pending and while the buyer is clearing the microwave from
the Affiliate's spectrum, the buyer may continue to use Sprint PCS'
Spectrum on which the Service Area Network operates. Sprint PCS will sell
its Disaggregated Licenses as described in Sections 6(b)(iv)(B),
6(b)(iv)(C) and 6(b)(iv)(D) only in those BTAs in which (1) Affiliate or
its Related Parties do not own a license or the obligation to sell the
license is unenforceable, (2) the FCC will not approve the transfer of the
Affiliate's License to the buyer, or (3) Sprint Spectrum determines that it
does not wish to reimburse the buyer for the cost of the microwave
relocation.
10
(B) If the buyer, an entity with respect to which such buyer
directly or indirectly through one or more persons owns the total voting
power or at least 50% of the total voting power or at least 50% of the
total equity (a "controlled entity"), an entity that directly or indirectly
through one or more persons has a parent entity that owns at least 50% of
the voting power or at least 50% of the total equity of both the buyer and
the common controlled entity (a "common controlled entity"), owns a license
to provide wireless service to at least 50% of the pops in a BTA with
respect to which such buyer proposes to purchase Spectrum (each a
"Restricted Party" with respect to such BTA), the buyer may buy only 5 MHZ
of Spectrum from Sprint PCS for such BTA.
(C) If the buyer is not a Restricted Party for a BTA with
respect to which such buyer proposes to purchase Spectrum, and either does
not satisfy the Successor Manager Requirements (other than those set forth
in Section 13(b) of this Consent and Agreement) or does not wish to be a
Successor Manager, then the buyer may buy 5 MHZ, 7.5 MHZ or 10 MHZ of
Spectrum from Sprint PCS as the buyer determines in its sole discretion.
(D) If Sprint PCS sells a Disaggregated License to a buyer
as required under this Section 6(b)(iv), the buyer must pay a price equal
to the sum of (1) the original cost of the applicable License to Sprint PCS
(or its Related Party) pro rated on a pops and spectrum basis, plus (2) the
microwave relocation costs paid by Sprint PCS (or its Related Party)
attributable to clearing the Spectrum in the Disaggregated License, plus
(3) the amount of carrying costs to Sprint PCS (or its Related Party)
attributable to such original cost and microwave relocation costs from the
date of this Consent and Agreement to and including the date on which the
Disaggregated License is transferred to the buyer, based on a rate of 12
percent per annum.
(c) No Direct Solicitation of Customers. Upon the sale of the
Collateral or the Disaggregated License in accordance with this Consent and
Agreement pursuant to Section 6(b)(ii), then the Sprint Parties agree to
transfer to the buyer thereof the customers with a MIN assigned to the
Service Area covered by the Disaggregated License, but the Sprint Parties
shall retain the customers of a national account and any resellers who are
then party to a resale agreement with Sprint Party. Each Sprint Party
agrees to take all actions reasonably requested by the buyer of the
Collateral to fully transfer to such purchaser such customers. Each Sprint
Party agrees that neither it nor any of its Related Parties will directly
or indirectly solicit, for six months after the date of transfer, the
customers with a MIN assigned to the Service Area covered by the
Disaggregated License; provided, that the Sprint Parties retain the
customers of a national account and any resellers that have entered into a
resale agreement with a Sprint Party, the Sprint Parties may advertise
nationally, regionally and locally, and the Sprint Parties may engage
direct marketing firms to solicit customers generally. If the buyer
continues to operate the purchased assets as a wireless network in the same
geographic area on a network that is technologically compatible with Sprint
Spectrum's network, the buyer and Sprint Spectrum shall each agree to
provide roaming services to the other (in the case of Sprint Spectrum, the
roaming services shall be provided to those customers of buyer in the
geographic area covered by the Disaggregated License roaming nationally
and, in the case of buyer, the roaming services shall be provided to those
customers of a Sprint Party roaming in the geographic area serviced by the
Disaggregated License) pursuant to a roaming agreement to be entered into
between buyer and Sprint Spectrum and to be mutually agreed upon so long as
such agreement is based on Sprint Spectrum's then standard roaming
agreement used by Sprint Spectrum in the industry and the price that each
party shall pay the other party for roaming services provided to the first
party shall be a price equal to the lesser of: (1) MFN Pricing provided by
buyer to third parties roaming in the geographic area serviced
11
by the Disaggregated License; and (2) the national average paid by Sprint
Spectrum to third parties for Sprint Parties' customers to roam in such
third parties' geographic areas (including Other Managers). Such
obligations with respect to roaming shall continue until such roaming
agreement is terminated pursuant to its terms. The buyer shall agree in
writing that if it continues to operate the purchased assets as a wireless
network in the same geographic area on a network that is technologically
compatible with Sprint Spectrum's network, the buyer shall, to the extent
required by law, provide resale to the Sprint Parties in the geographic
area covered by the Disaggregated License at the MFN Pricing that buyer
charges third parties who purchase resale from buyer; provided, however, if
buyer is not offering resale to any other customers then pricing of resale
provided to the Sprint Parties shall be as mutually agreed; and provided,
further, however, whether or not buyer is required by law to offer such
resale, buyer shall offer such resale (on the terms described in this
sentence) to national customers of the Sprint Parties.
(d) Deferral of Portion of Collected Revenues. (i) Under Section
10.1.1 of the Management Agreement, Sprint Spectrum retains 8% of the
Collected Revenues on a weekly basis (the "Retained Amount"). Following an
Acceleration and for up to two years after such Acceleration, Sprint
Spectrum shall retain only one half of the Retained Amount, and the
remaining one half of the Retained Amount shall be advanced to Affiliate
(or, if so directed by the Administrative Agent pursuant to Section 2
hereof, to the Administrative Agent) at the time the weekly fee provided
under Section 10.1.1 of the Management Agreement is paid; provided, that
after the first anniversary of the Acceleration Date, Sprint Spectrum shall
retain the entire Retained Amount if Sprint Spectrum is not serving as the
Interim Manager.
(ii) The portion of the Retained Amount advanced to Affiliate
(or, if so directed by the Administrative Agent pursuant to Section 2
hereof, to the Administrative Agent) (the "Deferred Amount") shall be
evidenced by a promissory note executed by Affiliate contemporaneously with
this Consent and Agreement in the form of Exhibit B hereto (the "Deferred
Amount Note").
(A) Amounts will be drawn on the Deferred Amount Note each time
Sprint Spectrum advances a Deferred Amount to Affiliate or the
Administrative Agent.
(B) The Deferred Amount Note will bear interest at a rate equal
to the greatest of (I) the average interest rate of Affiliate's
secured debt, (II) the average rate of Affiliate's unsecured debt, and
(III) Sprint Spectrum's cost of capital.
(C) The Deferred Amount Note shall mature on the earlier of (I)
the date on which a Successor Manager is qualified and assumes
Affiliate's rights and obligations under the Sprint Agreements, and
(II) the date on which the Operating Assets are purchased by a third-
party buyer, or on which a stock or other equity acquisition, merger,
consolidation or other transaction resulting in the indirect transfer
of the Operating Assets to a third-party buyer (an "Indirect
Transfer") is consummated.
(iii) In the event a Successor Manager assumes any of the
obligations of Affiliate under the Sprint Agreements, such Successor
Manager shall also assume the obligations under the Deferred Amount Note.
In the event that the Operating Assets are sold to a third party buyer or
an
12
Indirect Transfer is consummated, the obligations of Affiliate under the
Deferred Amount Note shall be subordinate to Affiliate's obligations to its
secured lenders.
(iv) After the two-year anniversary of the Acceleration, or
earlier if a Successor Manager is appointed or if Sprint Spectrum is not
serving as the Interim Manager, Sprint Spectrum will again retain the full
Retained Amount.
(e) Payment of Obligations; Release and Assignment of Rights. The
term "Obligations" means the amount equal to the Obligations, after taking into
consideration any amounts received from the Guarantors.
If Sprint Spectrum purchases the Operating Assets or the Pledged
Equity as permitted under Section 6(a) or Section 10, and the Obligations have
been paid in full and the Credit Agreement and all Commitments have terminated
or been assigned to a Sprint Party: (i) the Guarantors will have no right to any
amounts paid by Sprint Spectrum pursuant to such purchase (except to the extent
such purchase is pursuant to Section 6(a) and the amount paid by Sprint Spectrum
exceeds the amount of the Obligations and is not payable to other creditors of
Affiliate); (ii) the Administrative Agent will, at the election of Sprint
Spectrum, either release or assign to Sprint Spectrum all Security Interests in
the Collateral and all Additional Security Interests in the Additional
Collateral and release or assign to Sprint Spectrum all rights related to the
Loan Documents and the Guaranty Documents and all payments under the Loan
Documents and the Guaranty Documents; and (iii) the Guarantors will, at the
election of Sprint Spectrum, either release or assign to Sprint Spectrum, any
and all rights they have against the Collateral and the Additional Collateral or
arising out of any payment to the Administrative Agent or any Sprint Party with
respect to the Loan Documents or the Guaranty Documents.
SECTION 7. No Limits on Remedies. Nothing contained in this Consent and
Agreement shall limit any rights of the Administrative Agent or Lenders to
Accelerate. Except as expressly provided herein, nothing contained in this
Consent and Agreement shall limit any rights or remedies that the Administrative
Agent or the Lenders may have under the Loan Documents or applicable law. The
Administrative Agent may not sell, lease, assign, convey or otherwise dispose of
the Collateral other than as permitted under this Consent and Agreement.
SECTION 8. Rights and Obligations of Interim Manager. The Interim Manager
may collect a reasonable management fee for its services; provided, that if
Sprint Spectrum or a Related Party of Sprint Spectrum acts as Interim Manager,
such management fee shall not exceed the direct expenses relating to Sprint
Spectrum or such Related Party employees for the actual time spent by such
employees when performing the function of Interim Manager and Sprint Spectrum's
or such Related Party's out-of-pocket expenses. Such direct expenses shall
include such employees' salaries and benefits, and the out-of-pocket and accrued
expenses allocated to such employees. If Sprint Spectrum is the Interim
Manager, the management fee will be paid out of the 92% Management Fee that
Sprint Spectrum pays under the Management Agreement, and will be in addition to
the fees it receives under the Services Agreement. Sprint Spectrum shall
collect such management fee by setoff against the fees and any other amounts
payable to Affiliate under the Sprint Agreements. The Interim Manager will be
required to operate the Service Area Network in accordance with the terms of the
Sprint Agreements and will be subject to all of the requirements and obligations
of such agreements, but will not be required to assume the existing liabilities
of Affiliate.
SECTION 9. Rights to Cure. Neither the provisions of this Consent and
Agreement nor any action of either the Administrative Agent or Sprint Spectrum
shall require either the Administrative Agent, any
13
Lender or Sprint Spectrum to cure any default of Affiliate under the Sprint
Agreements or to perform under the Sprint Agreements, but shall only give it the
option to do so except to the extent otherwise required by this Consent and
Agreement. Sprint Spectrum may exercise its rights under Section 11.6.3 of the
Management Agreement upon an Event of Termination, whether such situation arises
while Affiliate, Sprint Spectrum, an Administrative Agent Designee or a Sprint
Spectrum Designee is acting as Interim Manager and notwithstanding any other
provision of this Consent and Agreement; provided, that the right to
reimbursement for any expenses incurred in connection with such cure shall be
unsecured and until such time as the Obligations have been paid in full in cash
and all commitments to advance credit under the Credit Agreement have terminated
or expired, the Person or Persons entitled thereto shall not receive such
reimbursement, except as specifically provided in Section 4(b) or Section 5(b)
of this Consent and Agreement. Sprint Spectrum shall not be permitted to deduct
or setoff from its payments to Affiliate any such amounts it is not entitled to
receive under this Section and shall not take any action of any type to attempt
to collect such reimbursement and the failure to be so reimbursed shall not
constitute a Management Agreement Breach. In the event that Sprint Spectrum
receives any payments or distributions that it is not entitled to receive under
this Section, such payments shall be held in trust for, and promptly turned over
to, the parties entitled thereto. If Sprint Spectrum has designated a third
party to take action under Section 11.6.3 of the Management Agreement, before
taking any such action such third party shall enter into an agreement with the
Administrative Agent providing that such third party agrees to the provisions of
this Section 9 as if it were a party hereto. Until such time as the Obligations
have been paid in full in cash and all commitments to advance credit under the
Credit Agreement have terminated or expired, Sprint Spectrum shall not be
entitled to exercise any other remedies under the Sprint Agreements, including,
without limitation, the remedy of terminating the Sprint Agreements (except to
the extent permitted under Sections 6(b)(ii)(A) and 12 of this Consent and
Agreement) or the remedy of withholding any payment set forth in Section 10 of
the Management Agreement (subject to Sprint Spectrum's rights of setoff or
recoupment with respect to such payments as permitted under Sections 2, 4(b),
5(b) and 9 of this Consent and Agreement). Until such time as the Obligations
have been paid in full in cash and all commitments to advance credit under the
Credit Agreement have terminated or expired, notwithstanding anything to the
contrary contained in Section 2.3 of the Management Agreement, in no event shall
any Person other than Affiliate or a Successor Manager be a manager or operator
for Sprint Spectrum with respect to the Service Area and neither Sprint Spectrum
nor any of its Related Parties shall own, operate, build or manage another
wireless mobility communications network in the Service Area, except to the
extent provided in Sections 2.3(a), (b), or (c) of the Management Agreement and
except to the extent that the Sprint Agreements are terminated in accordance
with Section 6(b)(ii)(A) of this Consent and Agreement. The Administrative Agent
acknowledges and agrees that Sprint Spectrum shall also have the right to cure
an Event of Default or to assist Affiliate in curing an Event of Default but
only to the extent Affiliate has the right to so cure under the Loan Documents,
as applicable (it being understood that the act of Sprint Spectrum curing an
Event of Default shall not constitute an independent Event of Default unless the
act itself would otherwise constitute a Default (e.g. a sale of assets not
otherwise permitted by the Loan Documents)), including but not limited to Sprint
Spectrum's providing Affiliate the funds necessary to operate or meet certain
financial covenants in the Loan Documents. The Administrative Agent shall have
the right to cure any Management Agreement Breach.
SECTION 10. Sprint Spectrum's Right to Purchase Obligations, Operating
Assets, or Pledged Equity. (a) Following the Acceleration Date and until the
60-day anniversary of the filing of a bankruptcy petition by or with respect to
Affiliate, Sprint Spectrum shall have the right to purchase the Obligations
under the Credit Agreement, by repaying the Obligations in full in cash. In the
event that Sprint Spectrum purchases the Obligations within 60 days immediately
following the earlier of (i) the Acceleration Date and (ii) the date of the
filing of a bankruptcy petition by or with respect to Affiliate, Sprint Spectrum
may in lieu of purchasing the total amount of the Obligations, purchase all
Obligations other than the accrued interest with respect thereto for a purchase
price equal to the amount of the Obligations other than such accrued interest
and any fees and
14
expenses that are unreasonable, in which case, such accrued interest and
unreasonable fees and expenses shall remain due and owing by Affiliate to the
Lenders.
(b) In the event that the Administrative Agent acquires the Operating
Assets or takes title to the Pledged Equity, Sprint Spectrum shall have the
right to purchase the Operating Assets or the Pledged Equity from the
Administrative Agent during the limited period of time provided in and otherwise
in accordance with this Section 10(b) by paying to the Administrative Agent in
cash an amount equal to the sum of the aggregate amount paid (by credit against
the Obligations or otherwise) by the Administrative Agent or the Lenders for the
Operating Assets or the Pledged Equity, as the case may be, plus the aggregate
amount of any remaining unpaid Obligations. The Administrative Agent shall give
Sprint Spectrum notice of any acquisition of the Operating Assets or the Pledged
Equity by the Administrative Agent promptly following the date of final
consummation of such acquisition (the "Acquisition Notice"). Sprint Spectrum
shall, within 60 days of receipt of a valid Acquisition Notice, give the
Administrative Agent (and the pledgor (i.e., Affiliate or iPCS, Inc.) in the
case of a purchase of the Pledged Equity) notice of its intent to exercise its
purchase right under this Section 10(b). In the event Sprint Spectrum gives the
Administrative Agent written notice of its intent to purchase the Operating
Assets or the Pledged Equity, the Administrative Agent agrees that it shall
provide Sprint Spectrum the right to purchase the Operating Assets or the
Pledged Equity, as the case may be, until the earlier to occur of (i) expiration
of the period consisting of 120 days after Sprint Spectrum's receipt of a valid
Acquisition Notice (or such later date that shall be provided for in the
purchase agreement and acceptable to the Administrative Agent in its sole
discretion to close the purchase of the Operating Assets or the Pledged Equity)
or (ii) receipt by the Administrative Agent from Sprint Spectrum of written
notice that Sprint Spectrum has determined not to proceed with the closing of
the purchase of the Operating Assets or the Pledged Equity. If Sprint Spectrum
at any time purchases the Operating Assets or the Pledged Equity as permitted
under this Section 10, the Administrative Agent will release, and the Guarantors
will release or assign their interests in the Collateral, the Loan Documents and
the Guaranty Documents as described in Section 6(e) upon payment in full of the
aggregate amount of the Obligations. Notwithstanding the foregoing, in the
event that a bankruptcy petition is filed by or with respect to Affiliate,
Sprint Spectrum shall again have the right to purchase the Operating Assets or
the Pledged Equity from the Administrative Agent by repaying the Obligations in
full in cash, by giving the Administrative Agent notice of its intent to
exercise such purchase right no later than 60 days following the date of filing
of such bankruptcy petition.
(c) If at any time during the period described in Section 10(a) or
10(b) above or thereafter the Administrative Agent receives any purchase offer
for the Operating Assets, or the Pledged Equity or the Obligations, as
applicable, that is acceptable to the Administrative Agent, the Administrative
Agent shall exercise reasonable efforts to obtain the consent of the offeror to
deliver a copy of such offer to Sprint Spectrum and Sprint Spectrum shall have
the right to purchase the Operating Assets, the Pledged Equity or the
Obligations, as applicable, on terms and conditions at least as favorable to the
Administrative Agent as the terms and conditions proposed in such offer so long
as within 14 Business Days after Sprint Spectrum's receipt of such other offer
Sprint Spectrum offers to purchase the Operating Assets, the Pledged Equity or
the Obligations, as applicable, and so long as the conditions of Sprint
Spectrum's offer and the amount of time it will take Sprint Spectrum to effect
such purchase is acceptable to the Administrative Agent and the Lenders.
(d) If Sprint Spectrum at any time purchases the entirety of the
Obligations as provided in this Section 10, the Administrative Agent shall
assign and transfer or cause the Lenders to assign and transfer to Sprint
Spectrum all rights and interests in, to and under all of the Loan Documents,
including but not limited to all security interests, liens, financing
statements, guaranties (including the Guaranty Documents) and other credit
enhancements related to such Loan Documents, and all rights and claims
thereunder (collectively referred to as the "Loan Document Rights"). If Sprint
Spectrum purchases all the Obligations other than
15
accrued interest (as permitted in the second sentence of Section 10(a) above),
then the Administrative Agent shall assign and transfer or cause the Lenders to
assign and transfer to Sprint Spectrum all Loan Document Rights, except that if
Sprint Spectrum receives payment in full of all Obligations due under the Loan
Documents (including the amount it did not pay the Administrative Agent, as
permitted in the second sentence of Section 10(a) above), it shall pay such
amount to the Administrative Agent unless the Administrative Agent has already
received payment of such amount. If Sprint Spectrum at any time purchases the
entirety or less than all of the Obligations, the Guarantors will release any
and all rights they have against the Collateral or arising out of any payment to
the Administrative Agent or any Sprint Party with respect to the Loan Documents
or the Guaranty Documents.
SECTION 11. Foreclosure. Upon the Administrative Agent or any Lender or
any other Person that meets the Successor Manager Requirements acquiring the
Operating Assets and the Sprint Agreements, then such Person shall be entitled
to exercise any and all rights of Affiliate under the Sprint Agreements in
accordance with the terms of the Sprint Agreements and each Sprint Party will
thereupon comply in all respects with such exercise by such Person and perform
its obligations under the Sprint Agreements and this Consent and Agreement for
the benefit of such Person. Each Sprint Party agrees that the Administrative
Agent or any Lender may (but shall not be obligated to), subject to and in
accordance with the terms of this Consent and Agreement, assign its rights and
interests acquired in the Operating Assets and the Sprint Agreements to any
buyer or transferee thereof and, in the event the buyer wishes to become a party
to the Sprint Agreements and such buyer satisfies the Successor Manager
Requirements, such buyer shall be bound by the Sprint Agreements; provided, that
buyer shall have no responsibility or liability to any Person other than a
Sprint Party and a Related Party of a Sprint Party arising out of Affiliate's
operations prior to the date buyer becomes bound by the Sprint Agreements. In
such case the Sprint Agreements shall remain in full force and effect with the
buyer as Successor Manager and this Consent and Agreement shall remain in full
force and effect for the benefit of the Successor Manager and any Person
providing senior secured debt financing to such Successor Manager if required by
such Person. Sprint Spectrum agrees, with respect to any past failure of
Affiliate to perform any obligation under the Sprint Agreements, that the
Successor Manager shall have the same amount of time to perform such obligation
that Affiliate had under the Sprint Agreements, with the performance period
commencing on the date on which the buyer becomes a Successor Manager. Sprint
Spectrum shall permit the performance period set forth in the Management
Agreement to be extended for such period of time that Sprint Spectrum believes
is reasonable to allow Successor Manager to perform such unperformed
obligations.
SECTION 12. Trademarks and Service Marks. In the event the Administrative
Agent forecloses on its security interest in the License Agreements and
transfers the License Agreements to a Person who does not meet the Successor
Manager Requirements, then Sprint Spectrum shall have the right to terminate the
License Agreements and cause the Administrative Agent to release its security
interest in the License Agreements immediately prior to such transfer.
SECTION 13. Interim Manager and Successor Manager Requirements. To
qualify as an Interim Manager or a Successor Manager, the Person must satisfy
each of the following "Successor Manager Requirements," as applicable:
(a) The Person must not during the three-year period immediately
preceding the date of determination have materially breached any material
agreement with Sprint Spectrum or its Related Parties that resulted in the
exercise of a termination right or in the initiation of judicial or
arbitration proceedings;
16
(b) The Person must not be one of the Persons identified on Schedule
13 (a "Schedule 13 Person"); provided, that no Other Manager under any
Sprint PCS Management Agreement may be identified on Schedule 13;
(c) In the case of a Successor Manager, the Person must meet a
reasonable Person's credit criteria (taking into consideration the
circumstances), it being understood that such criteria is satisfied if the
financial projections contained in the business plan such Person submits to
Sprint Spectrum shows the ability to service its indebtedness and meet the
build-out requirements contained in the Build-out Plan; and
(d) The Person must agree to be bound by the terms of the Sprint
Agreements as if an original party thereto; provided, in the case of an
Interim Manager, the Person must also execute a separate confidentiality
agreement in the form attached as Exhibit A with such changes thereto as
may be reasonably requested by the parties to the agreement, but the Person
is not required to assume the existing liabilities of the Affiliate.
The Administrative Agent, each Lender and each of their wholly-owned
subsidiaries or entities who wholly-own such entities shall be deemed to satisfy
Sections 13(a), (b) and (c) of the preceding "Successor Management
Requirements".
SECTION 14. Management Agreement. Sprint Spectrum agrees that it will not
exercise its right under the Management Agreement to purchase the Operating
Assets or to sell the Disaggregated License to Affiliate if before, or after
giving effect to such exercise, there would exist a Default or Event of Default
under the Credit Agreement, unless Sprint Spectrum pays the aggregate amount of
the Obligations as a condition of the exercise of such right and the Credit
Agreement shall have been terminated in connection with such payment. Sprint
Spectrum agrees that until the Obligations have been paid in full in cash and
all commitments to advance credit under the Credit Agreement have terminated or
expired, a failure to pay any amount by any Related Party of the Affiliate under
any agreement with Sprint Spectrum or any of its Related Parties (other than the
Management Agreement, the Services Agreement or the License Agreements) shall
not constitute a Management Agreement Breach for any purpose. Subject to
regulatory approval in connection with any such sale, Sprint PCS agrees that it
shall always maintain the ability to sell the Disaggregated License in
accordance with this Consent and Agreement. Sprint PCS shall own at least 10
MHZ of Spectrum in the Service Area until the first to occur of the following
events: (i) the Obligations have been paid in full in cash and all commitments
to advance credit under the Credit Agreement have terminated or expired, (ii)
the sale by Sprint PCS of the Spectrum pursuant to this Consent and Agreement
shall be effected, (iii) the sale of the Operating Assets pursuant to this
Consent and Agreement, and (iv) the termination of the Management Agreement.
Sprint Spectrum acknowledges that with respect to the build-out by the Affiliate
under the Management Agreement, the financing provided to Affiliate pursuant to
the Loan Documents comply with Section 1.7 of the Management Agreement, as
amended by Addendum IV of the Management Agreement. Section 11.3.6 of the
Management Agreement will no longer be applicable with respect to the Affiliate
if (A) on July 12, 2000, the Affiliate receives as a capital contribution the
proceeds from the issuance by iPCS, Inc. of (I) senior unsecured notes with
gross proceeds in the amount of $152,331,000 and (II) preferred stock to the
Blackstone Funds (as defined in the Credit Agreement) or any other investors
acceptable to Sprint Spectrum in the amount of $50,000,000, and (B) on or before
December 31, 2000, the Affiliate receives as a capital contribution from iPCS,
Inc. at least $70,000,000 following either (I) the initial public offering of
the common stock of iPCS, Inc. or (II) its issuance of preferred stock to the
Blackstone Funds or any other investor acceptable to Sprint Spectrum.
Notwithstanding anything to the contrary contained in Section 12.2 of the
Management Agreement, the Administrative Agent, the Lenders, and any Successor
Manager or buyer of the Operating Assets or
17
Disaggregated License shall be permitted to disclose Confidential Information
(as defined in the Management Agreement) (i) to the extent required by law, rule
or regulation, (ii) to any regulator or any regulatory body regulating such
entity, (iii) to any rating agency in connection with requirements applicable to
such Person and (iv) to the lawyers and accountants for any such Persons.
SECTION 15. Administrative Agent and Eligible Assignees. The
Administrative Agent and each Lender must be an Eligible Assignee. "Eligible
Assignee" shall mean and include a commercial bank, financial institution, other
"accredited investor" (as defined in Regulation D of the Securities Act) other
than individuals, or a "qualified institutional buyer" as defined in rule 144A
of the Securities Act; provided, that prior to the 61st day after the filing of
a bankruptcy petition by or with respect to Affiliate in no event may any Person
that is engaged in or that controls, is controlled by or is under common control
with any Person engaged in, the telecommunications service business in the
United States (other than Sprint Corporation and its subsidiaries), be an
Eligible Assignee, it being understood that no small business investment
corporation that is ultimately owned by an Eligible Assignee that is subject to
Regulation Y shall be deemed to be controlled by or under common control with
such Eligible Assignee; and provided further, that after the filing of such
bankruptcy petition in no event may a Schedule 13 Person be an Eligible
Assignee.
SECTION 16. Sprint Party Representations. Each Sprint Party represents
and warrants to the Administrative Agent, as of the date first above written
(the "Closing Date") (a) its execution, delivery and performance of this Consent
and Agreement has been duly authorized by all necessary corporate and
partnership action, and does not and will not require any further consents or
approvals that have not been obtained, or violate any provision of any law,
regulation, order, judgment, injunction or similar matters or materially breach
any agreement presently in effect with respect to or binding on it; provided,
that the transfer of Spectrum as contemplated under this Consent and Agreement
will require regulatory approval (which each Sprint Party agrees to use its
commercially reasonable efforts to obtain); (b) this Consent and Agreement is a
legal, valid and binding obligation of such Person enforceable against it in
accordance with its terms, except that (i) such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws affecting the enforcement of creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be limited by equitable defenses and by the
discretion of the court before which any proceeding may be brought; (c) both
before and after giving effect to the consummation of the Reorganization
Transactions, the Sprint Agreements are in full force and effect and have not
been amended, supplemented or modified; (d) as of the date of execution hereof,
to the knowledge of the Sprint Parties, no Event of Termination has occurred and
is continuing (without regard to any requirement of the delivery of written
notice necessary to the occurrence of an Event of Termination under Section 11.3
of the Management Agreement); (e) on the date the Management Agreement was
executed Sprint PCS owned, and on the date hereof Sprint PCS owns, 10 MHz or
more of Spectrum in the Service Area; and (f) the only existing agreements or
arrangements between Affiliate, on the one hand, and Sprint Corporation or any
of its subsidiaries, on the other hand, are the Management Agreement, the
Services Agreement, the License Agreements, that certain Asset Purchase
Agreement dated as of July 12, 2000, among Affiliate, Sprint Spectrum, Sprint
Spectrum Equipment Company, L.P. and Sprint Spectrum Realty Company, L.P., that
certain Interim Operating Agreement dated as of July 12, 2000, among Affiliate
and Sprint Spectrum, this Consent and Agreement and the Deferred Amount Note.
SECTION 17. Administrative Agent Representations. The Administrative
Agent represents and warrants to Sprint Spectrum, as of the Closing Date (a) its
execution, delivery and performance of this Consent and Agreement has been duly
authorized by all necessary corporate action, and does not and will not require
any further consents or approvals that have not been obtained, or violate any
provision of any law, regulation, order, judgment, injunction or similar matters
or materially breach any agreement presently in effect with
18
respect to or binding on it; (b) this Consent and Agreement is a legal, valid
and binding obligation of the Administrative Agent enforceable against it in
accordance with its terms, except that (i) such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws affecting the enforcement of creditors' rights
generally, and (ii) the remedy of specific performance and injunctive and other
forms of equitable relief may be limited by equitable defenses and by the
discretion of the court before which any proceeding may be brought; (c) at the
time of the execution hereof, the Administrative Agent and GE Capital
Corporation are the only Lenders; (d) as of the date of execution hereof, to the
knowledge of the Administrative Agent, no Event of Default has occurred and is
continuing; and (e) the Guaranty Documents have been duly executed and delivered
to the parties to such agreements.
SECTION 18. Successors and Assigns. This Consent and Agreement shall be
binding upon the successors and assigns of the parties hereto, and the
obligations of such parties hereunder shall be assumed by their respective
successors and assigns, and this Consent and Agreement shall inure, together
with the rights and remedies of the parties hereunder, to the benefit of their
respective successors and assigns. Any successor or assign of the
Administrative Agent may become such if it represents and warrants that it is an
"Eligible Assignee" as such term is defined in Section 15 of this Consent and
Agreement. In the event the Sprint PCS Network is sold in accordance with the
Management Agreement, the buyer thereof will assume the obligations of the
Sprint Parties hereunder and under all the other Sprint Agreements other than
the Sprint Trademark and Service ▇▇▇▇ License Agreement; provided, however, the
buyer of the Sprint PCS Network shall enter into an agreement with Affiliate on
substantially the same terms as the Sprint Trademark and Service ▇▇▇▇ License
Agreement with respect to such buyers' trademarks, service marks, brands, etc.
In the event a Successor Manager becomes a party to the Sprint Agreements as
provided in this Consent and Agreement, this Consent and Agreement shall remain
in full force and effect for the benefit of the Successor Manager and any Person
providing senior secured debt financing to such Successor Manager if required by
such Person.
SECTION 19. Amendment. Neither this Consent and Agreement nor any
provision herein may be waived except pursuant to an agreement or agreements in
writing entered into by Sprint Spectrum, the Administrative Agent and Affiliate,
and neither this Consent and Agreement nor any provision herein may be amended
or modified except pursuant to an agreement or agreements in writing entered
into by Sprint Spectrum, the Administrative Agent and Affiliate; provided,
however, that no consent of Affiliate shall be necessary for any amendment or
modification to this Consent and Agreement made pursuant to or in accordance
with Section 25 hereof, unless such amendment or modification could reasonably
be expected to be materially adverse to Affiliate. The Administrative Agent and
each Lender (and its successors and assigns) shall be bound by any modification
or amendment authorized by this Section 19. No amendment or waiver or effective
amendment or waiver entered into in violation of this Section 19 shall be valid.
SECTION 20. APPLICABLE LAW. THIS CONSENT AND AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 21. Notices. Notices and other communications provided for in
this Consent and Agreement shall be in writing and shall be delivered by hand or
overnight courier service, mailed or sent by telecopy, as follows:
(a) if to the Sprint Parties, to:
Sprint Spectrum L.P.
19
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
(b) if to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
with a copy to:
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(c) if to Affiliate, to it at:
iPCS Wireless, Inc./iPCS, Inc./iPCS Equipment, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Chandor
All notices and other communications given to any party hereto in accordance
with the provisions of this Consent and Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy, or on the date five (5) business days after dispatch by
certified
20
or registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 21 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 21.
SECTION 22. Counterparts. This Consent and Agreement may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
SECTION 23. Severability. Any provision of this Consent and Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. The parties
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provision with valid provisions the economic effect of which is as
close as possible to that of the invalid, illegal or unenforceable provision.
SECTION 24. Termination. This Consent and Agreement shall terminate and
be of no further force and effect upon the first to occur of the following: (i)
the Obligations are paid in full and the Credit Agreement and all Commitments
are terminated; and (ii) the Sprint Agreements terminate.
SECTION 25. Amendments to Form Consent and Agreement. If Sprint Spectrum
modifies or amends the form of Consent and Agreement it enters into with another
lender in connection with a loan to an Other Manager that is syndicated or
intended to be syndicated (i.e., a loan sold or participated, or intended to be
sold or participated, in whole or in part to at least three financial
institutions or investment funds) and where the pops in the Service Area of the
Other Manager exceed 5 million, then Sprint Spectrum agrees to give the
Administrative Agent the right to so amend this Consent and Agreement, subject
to the provisions of clauses (a), (b) and (c) below. Sprint Spectrum agrees to
give the Administrative Agent written notice of such modifications and
amendments and, at the request of Administrative Agent, to amend this Consent
and Agreement in the same manner; provided, that: (a) Sprint Spectrum will not
modify this Consent and Agreement to incorporate changes made for the benefit of
a lender because of circumstances related to a particular Other Manager, subject
to the limitations set forth below; (b) the Administrative Agent must agree to
make all (or none) of the changes made for the other lender and the Other
Manager, unless Sprint Spectrum agrees to allow the Administrative Agent to make
only some of the changes; and (c) if such amendment to this Consent and
Agreement could reasonably be expected to be materially adverse to Affiliate,
such amendment shall not be made without the prior written consent of Affiliate
(although Affiliate's withholding of such consent will result in none of the
changes being made to this Consent and Agreement because of the requirements of
clause (b) above).
For purposes of subsection (a) in the preceding paragraph, Sprint Spectrum
will not deem the following changes to be made because of circumstances related
to a particular Other Manager: (i) any form of recourse to Sprint Spectrum or
other similar form of credit enhancement; (ii) any change in Sprint Spectrum's
right to purchase Operating Assets or Obligations; (iii) any change in the
Affiliate's, Administrative Agent's or Lenders' right to sell the Collateral or
purchase the Disaggregated License (including, without limitation, any rights of
first refusal and the purchase price of the Disaggregated License); (iv) any
change in the ownership status, terms of usage or amount of Disaggregated
License utilized by Affiliate; (v) any material change in the flow of revenues
between Sprint Spectrum and Affiliate excluding changes related to the pricing
of direct or indirect fees, but including any subordination of direct or
indirect fees or other amounts or costs due under the Sprint Agreements or
hereunder to Sprint Spectrum; (vi) any change to obligations required to
21
be assumed by, or qualifications for, any Interim or Successor Manager,
including changes in the time period or terms under which Sprint Spectrum agrees
to remain as Interim Manager; (vii) any changes in confidentiality, non-compete
or Eligible Assignee language, including changes to Schedule 13; (viii) any
clarifications of FCC compliance issues; (ix) the issuance of legal opinions;
(x) any change in the circumstances under, or procedures by which, an Interim
Manager or Successor Manager is appointed; or (xi) any change to this Section
25.
[The remainder of this page is intentionally left blank.]
22
IN WITNESS WHEREOF, the parties hereto have caused this Consent and
Agreement to be executed by their respective authorized officers as of the date
and year first above written.
SPRINT SPECTRUM L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Affiliations
SPRINTCOM,INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Affiliations
WIRELESSCO, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Affiliations
SPRINT COMMUNICATIONS COMPANY, L.P.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Vice President - Law
TORONTO DOMINION (TEXAS), INC.
for itself and as Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
23
Acknowledgment, Consent and Agreement of Affiliate
--------------------------------------------------
The undersigned, Affiliate, (i) has reviewed this Consent and Agreement,
(ii) acknowledges, consents and agrees to the terms and provisions of this
Consent and Agreement, and (iii) agrees to be bound by the terms and provisions
of this Consent and Agreement, including, without limitation, such terms and
provisions that affect Affiliate, its assets and rights under the Management
Agreement. Without limiting the generality of the foregoing, Affiliate
acknowledges and agrees that: (i) the right to appoint an Interim Manager is
intended to allow the right and ability to preserve and/or protect the
Collateral or its value and the Service Area Network or its value and (ii) in
the event of the sale of the Collateral by the Administrative Agent, the value
of the Collateral may be dependent on the right of the Person purchasing the
Collateral to assume or be a party to the Sprint Agreements and acknowledges
that any sale of the Collateral in accordance with Sections 6 and 10 hereof, the
other provisions of this Consent and Agreement and, to the extent not
inconsistent with this Consent and Agreement, the Loan Documents, is agreed to
be a commercially reasonable disposition of the Collateral by Administrative
Agent.
iPCS WIRELESS, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President & CEO
24
Acknowledgment, Consent and Agreement of Guarantors
---------------------------------------------------
Each of the undersigned Guarantors (i) has reviewed this Consent and
Agreement, (ii) acknowledges, consents and agrees to the terms and provisions of
this Consent and Agreement, particularly as they modify the price (as set forth
in the Management Agreement) pursuant to which Sprint Spectrum may purchase the
Operating Assets under Sections 6 and 10 hereof, and as they require Affiliate
and its Related Parties to sell their Licenses under Section 6 hereof, and
(iii) agrees to be bound by the terms and provisions of this Consent and
Agreement and to take such action as is necessary to cause Affiliate and its
Related Parties to comply with the terms and provisions of this Consent and
Agreement. Without limiting the generality of the foregoing, each of the
Guarantors acknowledges and agrees that: (i) the right to appoint an Interim
Manager is intended to allow the right and ability to preserve and/or protect
the Collateral or its value and the Service Area Network or its value and (ii)
in the event of the sale of the Collateral by the Administrative Agent, the
value of the Collateral may be dependent on the right of the Person purchasing
the Collateral to assume or be a party to the Sprint Agreements and acknowledges
that any sale of the Collateral in accordance with Sections 6 and 10 hereof, the
other provisions of this Consent and Agreement and, to the extent not
inconsistent with this Consent and Agreement, the Loan Documents, is agreed to
be a commercially reasonable disposition of the Collateral by Administrative
Agent.
iPCS, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President & CEO
iPCS EQUIPMENT, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President & CEO
25
