<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q/A
Amendment No. 1
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTER ENDED JUNE 30, 1998 COMMISSION FILE NUMBER: 0-27442
OMNIPOINT CORPORATION
THREE BETHESDA METRO CENTER, SUITE 400
BETHESDA, MD 20814
(301) 951-2500
DELAWARE 04-2969720
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(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS: ON WHICH REGISTERED:
-------------------- --------------------
COMMON STOCK, PAR VALUE NASDAQ NATIONAL MARKET
$0.01 PER SHARE
SECURITIES REGISTERED PURSUANT TO SECTION 12 (g) OF THE ACT:
NONE
Indicate by check mark whether the Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No __
Shares of common stock outstanding as of August 10, 1998 were 52,748,615.
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Form 10-Q/A
Amendment No. 1
Omnipoint Corporation and Subsidiaries
Table of Contents
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Part II. OTHER INFORMATION AND SIGNATURE 3
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Part II -- Other Information
ITEM 5: OTHER INFORMATION
None
ITEM 6: EXHIBITS AND REPORTS ON FORM 10-Q
(a) Exhibits
10.63 Loan agreement, dated June 25, 1998, by and between Omnipoint MB
Holdings, L.L.C. and Bank of America National Trust and Savings
Association.
10.64 Amended and restated loan agreement, dated June 25, 1998, by and
between Omnipoint MB Holdings, L.L.C. and Ericsson Inc.
27.1 Financial Data Schedule
(b) REPORTS ON FORM 8-K
None.
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<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OMNIPOINT CORPORATION
Date: January 20, 2000 /s/ Harry Plonskier
------------------------------
Harry Plonskier
Acting Chief Financial Officer
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EXECUTION COPY
LOAN AGREEMENT
dated as of June 25, 1998
among
OMNIPOINT MB HOLDINGS, LLC.,
as Borrower,
-----------
BANK OF AMERICA INTERNATIONAL LIMITED,
as Arranger and as Administrative Agent,
---------------------------------------
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
CIBC WOOD GUNDY PLC,
LLOYDS BANK PLC
AND
MERITA BANK PLC,
as Lenders
----------
Mayer, Brown & Platt
Bucklersbury House
3 Queen Victoria Street
London, EC4N 8EL, England
Ref: MJP/98437783
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION...................... 1
SECTION 1.1. Definitions.......................................... 1
SECTION 1.2. Rules of Interpretation.............................. 29
SECTION 1.3. Accounting Terms..................................... 30
ARTICLE 2. THE ADVANCES................................................. 31
SECTION 2.1. The Advances......................................... 31
SECTION 2.2. Reduction or Termination of the Commitments.......... 31
SECTION 2.3. Amounts of Advances Available for Borrowing.......... 32
SECTION 2.4. Disbursement Claim................................... 32
SECTION 2.5. Drawdown............................................. 33
SECTION 2.6. Number of Advances................................... 33
SECTION 2.7. Deemed Advance....................................... 33
ARTICLE 3. FEES, INTEREST AND PAYMENTS.................................. 33
SECTION 3.1. Fees................................................. 33
SECTION 3.2. Interest............................................. 34
SECTION 3.3. Payment Dates........................................ 34
SECTION 3.4. Interest After Default............................... 35
SECTION 3.5. Interest Period...................................... 35
SECTION 3.6. Interest Rate Determination.......................... 36
SECTION 3.7. Payment and Computations............................. 37
SECTION 3.8. Use of Proceeds...................................... 38
ARTICLE 4. EXPORT CREDIT GUARANTEES..................................... 39
SECTION 4.1. EKN Guarantee........................................ 39
SECTION 4.2. Invalidity or Impairment of EKN Documents............ 39
SECTION 4.3. Partial Unavailability of EKN Guarantee.............. 41
SECTION 4.4. Substitute Guarantor................................. 41
SECTION 4.5. Unavailability of EKN Undertaking.................... 41
ARTICLE 5. REPAYMENT AND PREPAYMENT OF THE ADVANCES..................... 41
SECTION 5.1. Repayment............................................ 41
SECTION 5.2. Mandatory Prepayment of Advances..................... 42
SECTION 5.3. Optional Prepayments of Advances..................... 44
SECTION 5.4. Reborrowings......................................... 44
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ARTICLE 6. ILLEGALITY, INCREASED COSTS AND CAPITAL ADEQUACY............. 44
SECTION 6.1. Illegality........................................... 44
SECTION 6.2. Additional Costs and Capital Adequacy................ 45
SECTION 6.3. Taxes................................................ 46
SECTION 6.4. Tax Forms............................................ 47
SECTION 6.5. Survival............................................. 48
ARTICLE 7. REPRESENTATIONS AND WARRANTIES............................... 48
SECTION 7.1. Representations and Warranties....................... 48
SECTION 7.2. Repetition........................................... 57
ARTICLE 8. AFFIRMATIVE COVENANTS OF THE BORROWER........................ 58
SECTION 8.1. General.............................................. 58
SECTION 8.2. Reporting Requirements; Notices...................... 65
SECTION 8.3. Financial Covenants of the Borrower.................. 73
ARTICLE 9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER................... 74
SECTION 9.1. Negative Pledge...................................... 74
ARTICLE 10. CONDITIONS PRECEDENT......................................... 90
SECTION 10.1. Initial Advance...................................... 90
SECTION 10.2. Financial Close...................................... 100
ARTICLE 11. ADDITIONAL CONDITIONS TO ADVANCES............................ 101
SECTION 11.1. Conditions to All Advances........................... 101
ARTICLE 12. EVENTS OF DEFAULT; ACCELERATION; ETC......................... 102
SECTION 12.1. Events of Default and Acceleration................... 102
ARTICLE 13. THE ADMINISTRATIVE AGENT..................................... 110
SECTION 13.1. Authorization and Action............................. 110
SECTION 13.2. Administrative Agent's Reliance, Etc................. 111
SECTION 13.3. Obligations of Administrative Agent.................. 112
SECTION 13.4. Duty of inquiry...................................... 113
SECTION 13.5. Exclusion of Duties and Liability.................... 114
SECTION 13.6. Affiliates of Administrative Agent................... 114
SECTION 13.7. Lender Credit Decision............................... 114
SECTION 13.8. Indemnification...................................... 115
SECTION 13.9. Removal; Resignation of Administrative Agent......... 116
SECTION 13.10. Replacement of Administrative Agent.................. 116
SECTION 13.11. Transfers............................................ 117
SECTION 13.12. Delegation........................................... 117
SECTION 13.13. Representation by Lender............................. 118
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SECTION 13.14. Failure by Lender to Make Advance.................... 118
SECTION 13.15. Failure of Borrower to Make Payment.................. 119
ARTICLE 14. MISCELLANEOUS................................................ 119
SECTION 14.1. Amendments, Etc...................................... 119
SECTION 14.2. Notices, Etc......................................... 120
SECTION 14.3. No Waiver; Remedies.................................. 121
SECTION 14.4. Costs; Expenses...................................... 122
SECTION 14.5. Indemnities.......................................... 123
SECTION 14.6. Right of Set-off..................................... 124
SECTION 14.7. Sharing of Payments, Etc............................. 124
SECTION 14.8. Binding Effect....................................... 125
SECTION 14.9. Assignments and Participations....................... 125
SECTION 14.10. Independence of the Agreement........................ 129
SECTION 14.11. Obligations Several.................................. 129
SECTION 14.12. Governing Law........................................ 129
SECTION 14.13. Execution in Counterparts............................ 129
SECTION 14.14. Confidentiality...................................... 129
SECTION 14.15. Consent to Jurisdiction.............................. 131
SECTION 14.16. Matters Relating to the Collateral Agent............. 132
SECTION 14.17. Amendments, Etc., to Intercreditor Agreement......... 132
SECTION 14.18. Waiver of Jury Trial................................. 132
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Exhibits
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Exhibit A - Disbursement Claim
Exhibit B - Quarterly Compliance Certificate
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Services Agreement
Exhibit D-2 - Form of Operating Agreement
Exhibit E-1 - Form of Borrower Security Agreement
Exhibit E-2 - Form of Parent Pledge Agreement
Exhibit E-3 - Form of D-, E- and F-Block Subsidiary Parent Pledge
Agreement
Exhibit E-4 - Form of Subsidiary Security Agreement
Exhibit F - Form of Real Estate Mortgage Option
Exhibit G - Form of Subordination Agreement
Exhibit H-1 - Form of Limited Recourse Parent Guaranty
Exhibit H-2 - Form of D-, E- and F-Block Subsidiary Parent Limited
Recourse Guaranty
Exhibit H-3 - Form of Subsidiary Guaranty
Exhibit H-4 - Form of Ericsson Guaranty
Exhibit H-5 - Form of Ericsson Indemnity
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Exhibit I - Form of Intercreditor Agreement
Exhibit J - Form of Support Agreement
Schedules
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Schedule 1.1 - Permitted BTAs
Schedule 1.1A - Certain Geographic Areas of Permitted BTAs
Schedule 7.1(b)(i) - Subsidiaries
Schedule 7.1(i) - Intellectual Property
Schedule 7.1(j) - FCC Licenses
Schedule 7.1(bb)(i) - Environmental Matters
Schedule 7.1(cc) - Joint Ventures
Schedule 7.1(dd) - Material Contracts
Schedule 7.1 (ee) - Ownership Chart
Schedule 8.3(a) - Revenue
Schedule 8.3(c) - Leverage Ratio (Adjusted EBITDA)
Schedule 8.3(d) - Leverage Ratio (EBITDA)
Schedule 9.1(d)(xi) - Investments
Schedule 10.1(s) - Mortgaged Property
iv
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Exhibit 10.63
LOAN AGREEMENT
--------------
THIS AGREEMENT is dated as of June 25, 1998, among
(1) OMNIPOINT MB HOLDINGS, LLC, a Delaware limited liability company (the
"Borrower");
---------
(2) BANK OF AMERICA INTERNATIONAL LIMITED as administrative agent for the
Lenders (in such capacity, the "Administrative Agent") and as arranger (in
--------------------
such capacity, the "Arranger"); and
--------
(3) BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, CIBC WOOD GUNDY
PLC, LLOYDS BANK PLC and MERITA BANK PLC (each a "Lender").
------
ARTICLE 1. DEFINITIONS AND RULES OF INTERPRETATION
SECTION 1.1 DEFINITIONS.
The following terms (whether or not underscored) when used in this Agreement,
including the preamble, shall, except where the context otherwise requires, have
the following meanings:
"Adjusted EBITDA" means for any period, the sum of EBITDA for such period plus
---------------
Marketing Expenses (including, without limitation, compensation and commissions
incurred in connection with the foregoing activities) for such period to the
extent deducted from EBITDA.
"Administrative Agent" is defined in the preamble.
--------------------
"Administrative Agent's Account" means the account located in New York with Bank
------------------------------
of America NT & SA New York, account Bank of America NT & SA London account
number 37-60564 for further credit to Bank of America International Limited
account number 10985218 (or such other account as the Administrative Agent from
time to time may specify).
"Administrative Agent's Office" means the Administrative Agent's office set
-----------------------------
forth in Section 14.2 (a) (iii) and, upon the appointment of a successor
Administrative Agent pursuant to Section 13.10, such office as shall be provided
by such successor Administrative Agent, or in either case such office as the
Administrative Agent from time to time may designate.
"Advances" means each and every advance made by the Lenders by way of
--------
disbursement to Ericsson, and debited to the Advances Account by the
Administrative Agent under this Agreement or, as the case may be, the
outstanding principal amount of each such advance (as from time to time reduced
or consolidated by any term of this Agreement).
<PAGE>
"Advances Account" means the advances account opened and maintained in
----------------
accordance with Section 2.4.
"Affected EKN Guarantee" is defined in Section 4.3.
----------------------
"Affiliate" means, as to any Person, any other Person 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 shall include
the power, direct or indirect:
(a) to vote 50% or more of the securities or other interests having
ordinary voting power for the election of directors or other managing
Persons of such Person; or
(b) to direct or cause direction of the management and policies of such
Person whether by contract or otherwise.
"Agents" means collectively, the Administrative Agent and the Collateral Agent.
------
"Applicable Law" means any:
--------------
(a) statute, rule or regulation thereunder and interpretations thereof by
any Governmental Body charged with the administration or the
interpretation thereof; and
(b) requests, directives, instructions and notices at any time or from
time to time hereafter made upon or otherwise issued to any Lender or
the Administrative Agent by any central bank or other fiscal, monetary
or other authority (whether or not having the force of law).
"Approved Annual Operating Business Plan" means, with respect to each fiscal
---------------------------------------
year of the Borrower, beginning with its fiscal year ending December 31, 1998,
any annual operating business plan delivered by the Borrower pursuant to Section
8.2(a) with respect to such fiscal year that shall have been approved by the
Required Lenders.
"Approved Full-Term Operating Business Plan" means unless and until the Borrower
------------------------------------------
in its discretion shall have delivered to the Lenders a revised full-term
operating business plan that the Required Lenders shall have approved, the full-
term operating business plan delivered by the Borrower pursuant to Section
10.1(p), and thereafter the most recent full-term operating business plan
delivered by the Borrower that the Required Lenders shall have approved.
"Arranger" is defined in the preamble.
--------
"Assignment and Acceptance" means an Assignment and Acceptance substantially in
-------------------------
the form of Exhibit C.
---------
2
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"Attributed Expenses" means at any date and with respect to any Permitted BTA or
-------------------
the right to provide PCS services to POPs within a Permitted BTA, the aggregate
amount of all Eligible Swedish Goods & Services incurred primarily with respect
to providing PCS services to, or used primarily for the normal commercial
operation of PCS services for, such Permitted BTA or such POPs, other than, in
the case of any Permitted BTA the FCC License for which has been the subject of
a C-Block General License Revocation Event, any such Eligible Swedish Goods &
Services in respect of equipment that shall have been installed and shall be
used for a normal commercial operation of another Permitted BTA on or before the
date on which such Permitted BTA shall become an Excluded BTA.
"Authorized Officer" means, with respect to any Person, any person who is a
------------------
director or other officer of such Person and whose name and specimens of whose
signature have been supplied from time to time to the Administrative Agent by
such Person as being those of a person authorised to sign any instrument to be
executed by such Person, including a Disbursement Claim and the Loan Documents.
"Base Rate" means for any day, the higher of:
---------
(a) 0.50% per annum above the Federal Funds Rate on such date; and
(b) the rate of interest in effect for such day as publicly announced from
time to time by Bank of America National Trust and Savings Association
in San Francisco, California, as its "reference rate". The "reference
rate" is a rate set by Bank of America National Trust and Savings
Association based upon various factors, and is used as a reference
point for pricing some loans, which may be priced at, above or below
such announced rate. Any change in the reference rate announced by
Bank of America National Trust and Savings Association shall take
effect at the opening of business on the day specified in the public
announcement of such change.
"Borrower" is defined in the preamble.
--------
"Borrower Security Agreement" is defined in Section 10.1(q)(i).
---------------------------
"Boston BTA" means BTA No. 51.
----------
"BTA" means any "basic trading area" as set forth in the Rand McNally 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, and utilized by the FCC in
dividing the 50 states, the District of Columbia and the United States
territories into 493 BTAs for the purpose of licensing PCS Systems.
"Business Day" means any day other than a Saturday, a Sunday or a day on which
------------
commercial banks located in New York City or London are authorized or required
by law or other governmental action to close.
3
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"Capital Expenditures" means amounts paid or Indebtedness incurred in connection
--------------------
with the purchase or lease of any assets that would be required to be
capitalized and shown on the balance sheet of such Person in accordance with
GAAP (including Capitalized Leases).
"Capitalized Leases" means leases the discounted future rental-payment
------------------
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
"Cash Equivalents" means any Investments of the Borrower or any of its
----------------
Subsidiaries of the types permitted under clauses (ii), (iii), (iv) and (v) of
Section 9.1(d) having a maturity of not greater than 270 days from the date of
acquisition thereof.
"Cash Management Agreement" means the Amended and Restated Cash Management
-------------------------
Agency Agreement dated as of June 25, 1998 between Operations and the
Grandparent.
"C-Block FCC License" means any FCC License sold in the FCC's C-Block auction.
-------------------
"C-Block General License Revocation Event" means any action by the FCC the
----------------------------------------
effect of which is to revoke, annul, rescind, cancel, suspend or terminate all
FCC Licenses issued in connection with the FCC's C-block auction (including
those held by License Subsidiaries), regardless of whether the Persons owning
such FCC Licenses were in default thereunder.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
------
Liability Act, as amended, 42 USCA Section 9601 et seq.
"Closing Date" is defined in the introductory clause of Article 10.
------------
"Collateral" means all "Collateral" and "Pledged Collateral" referred to in the
----------
Collateral Documents and all other property that is or is intended to be subject
to any Lien in favor of the Collateral Agent for the benefit of the Secured
Parties.
"Collateral Agent" means Chase Manhattan Trust Company, (successor in interest
----------------
to Mellon Bank, N.A. under the Intercreditor Agreement) or any successor thereto
appointed pursuant to Section 6.1 of the Intercreditor Agreement.
"Collateral Documents" means the Security Agreements, the Mortgages and any
--------------------
other agreement that purports to create a Lien in favor of the Collateral Agent
for the benefit of the Secured Parties.
"Commitment" means for any Lender at any date, the Total Commitments as of such
----------
date, multiplied by such Lender's Commitment Percentage as of such date.
"Commitment Percentage" means for any Lender, the percentage next to the heading
---------------------
"Commitment Percentage" opposite its name on the signature pages hereof or, if
such Lender has entered into an Assignment and Acceptance, in the Register.
4
<PAGE>
"Communications Act" means the Communications Act of 1934, as amended, and the
------------------
rules and regulations issued thereunder, as from time to time in effect.
"Confidential Information" means information that the Borrower or any of its
------------------------
Affiliates furnishes to the Administrative Agent or any Lender in writing and
designated as confidential, unless such information is or becomes generally
available to the public or is or becomes available to the Administrative Agent
or such Lender from a source other than the Borrower or any of its Affiliates.
"Consolidated" means the consolidation of accounts of the Borrower and its
------------
Subsidiaries in accordance with GAAP.
"Contingent Obligation" means as to any Person, any obligation of such Person
---------------------
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation ("primary obligations") of any other Person (the "primary
------------------- -------
obligor") in any manner, whether directly or indirectly, including any
- -------
obligation of such Person, whether or not contingent:
(a) to purchase any such primary obligation or any Property constituting
direct or indirect security therefor;
(b) to advance or supply funds:
(i) for the purchase or payment of any such primary obligation; or
(ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain net worth, solvency or other
financial statement condition of the primary obligor;
(c) to purchase Property, securities or services primarily for the purpose
of assuring the beneficiary or holder of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation;
(d) otherwise to assure, protect from loss, or hold harmless the
beneficiary or holder of such primary obligation against loss in
respect thereof; or
(e) in connection with the liability of a general partner in respect of
the recourse liabilities of the partnership in which it is a general
partner;
provided that the term "Contingent Obligation" shall not include the indorsement
- --------
of instruments for deposit or collection in the ordinary course of business.
"Core BTA" means at any date, any BTA that is a Permitted BTA as of such date
--------
and that has a population of at least 1,000,000 POPs.
5
<PAGE>
"D-, E- and F-Block Subsidiary" means Omnipoint Miami W. Palm Beach F License,
-----------------------------
LLC, a Delaware limited liability company, which is a Subsidiary of the D-,E-
and F-Block Subsidiary Parent that, at the date hereof, holds an FCC License for
the West Palm Beach BTA.
"D-, E- and F-Block Subsidiary Parent" means Omnipoint PCS Entrepreneurs Two,
------------------------------------
LLC., a Delaware limited liability company.
"D-, E- and F-Block Subsidiary Parent Limited Recourse Guaranty" is defined in
--------------------------------------------------------------
Section 10.1(r)(iii).
"D-, E- and F-Block Subsidiary Pledge Agreement" is defined in Section
----------------------------------------------
10.1(q)(iii).
"Debt Service" means as to any Person and for any period, the aggregate
------------
scheduled amount of interest required to be paid and principal required to be
paid by such Person (in each case, without duplication) during such period on
all Indebtedness of such Person outstanding during all or any part of such
period (excluding (a), in the case of the Borrower, the amount of any prepayment
pursuant to Section 5.2(a) or (b) of this Agreement, Section 3.02(a), (b) or (c)
of the Ericsson Loan Agreement, or any similar mandatory prepayment under a
Permitted Loan Agreement and (b) interest capitalized under loans where such
loans provide for the funding of interest costs) and owing to Persons other than
such Person and its Subsidiaries whether such interest and principal were or are
required to be reflected as an item of expense or capitalized, including
payments in respect of Capitalized Leases and including scheduled payments of
commitment fees, agency fees, facility fees, origination fees, balance-
deficiency fees and similar fees or expenses in connection with Indebtedness.
"Disbursement Claim" means a claim substantially in the form of Exhibit A hereto
------------------
made by Ericsson in the manner specified in Article 2.
"Disbursement Date" means the date upon which an Advance is to be made to or for
-----------------
the benefit of the Borrower and disbursed to Ericsson or the Borrower in
accordance with the terms of this Agreement.
"Distribution" means any of the following with respect to any Person:
------------
(a) the declaration or payment of any cash dividend, dividend in kind or
cash equity distributions on or in respect of any shares of any class
of Stock of such Person, other than dividends payable solely in shares
of common stock (or equivalent interests) of such Person;
(b) the purchase, redemption, or other retirement of any shares of any
class of Stock of such Person;
(c) the return of capital by such Person to its shareholders or members
(as applicable) (or holders of interests equivalent to shares or
membership interests) as such;
6
<PAGE>
(d) any other distribution on or in respect of any shares or equivalent
interests of any class or series of Stock of such Person; or
(e) if such Person is the Borrower, any payment of principal, premium or
interest, or any other amount, in respect of Subordinated Indebtedness
of the Borrower.
"Dollars" or "$" means the lawful currency of the United States of America.
------- -
"EBITDA" means for any period, the sum, determined on a Consolidated basis, of:
------
(a) Net Income for such period, plus
(b) to the extent deducted in determining Net Income, the sum of each of
the following for such period:
(i) cash interest paid expenses;
(ii) income-tax expense; and
(iii) depreciation, amortization and other non-cash charges.
"EKN" means EXPORTKREDITNAMNDEN (the Swedish Export Credit Guarantee Board).
---
"EKN Documents" means the EKN General Conditions, each EKN Guarantee and the EKN
-------------
Undertaking.
"EKN General Conditions" means the EKN General Conditions for Export Credit
----------------------
Guarantees of 16 October 1996 (as amended from time to time).
"EKN Guarantee" means any export credit guarantee granted or to be granted by
-------------
EKN pursuant to the EKN Undertaking in favor of the Administrative Agent as
agent for the Lenders in respect of the Advances to be made under this
Agreement.
"EKN Undertaking" means the Offer Regarding Issue of Guarantee in favor of the
---------------
Lenders made by EKN to Bank of America National Trust and Savings Association
dated May 7, 1998 with reference 97-10350-000-2 or any replacement or
supplemental Offer Regarding Issue of Guarantee to the Administrative Agent in
favor of the Lenders from time to time.
"Eligible Swedish Goods and Services" means goods produced, manufactured or
-----------------------------------
assembled, in whole in Sweden, or services rendered by Persons ordinarily
resident or ordinarily carrying on business in Sweden including Ericsson Radio
Systems together with goods and services otherwise permitted pursuant to the EKN
Documents or with the written consent of EKN.
7
<PAGE>
"Employee Benefit Plan" means any employee benefit plan within the meaning of
---------------------
Section 3(3) of ERISA maintained or contributed to by any Loan Party or any
ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" means any federal, state or local law, statute, rule or
------------------
regulation or common law relating to the environment or occupational health and
safety, including any statute, regulation or order pertaining to:
(a) treatment, storage, disposal, generation and transportation of
industrial, toxic or hazardous substances or solid or hazardous waste;
(b) air, water or noise pollution;
(c) groundwater and soil contamination;
(d) the release or threatened release into the environment of industrial,
toxic or hazardous substances, or solid or hazardous waste, including
without limitation emissions, discharges, injections, spills, escapes
or dumping of pollutants, contaminants or chemicals;
(e) the protection of wildlife, marine sanctuaries and wetlands, including
without limitation all endangered and threatened species;
(f) underground and other storage tanks or vessels, abandoned, disposed or
discarded barrels, containers and other closed receptacles;
(g) health and safety of employees and other persons; and
(h) manufacture, processing, use, distribution, treatment, storage,
disposal, transportation or handling of pollutants, contaminants,
chemicals or industrial, toxic or hazardous substances or oil or
petroleum products, by-products or breakdown products or solid or
hazardous waste,
including (i) CERCLA; (ii) RCRA; (iii) the Toxic Substance Control Act, as
amended, 15 USCA Section 2601 et seq.; (iv) the Water Pollution Control Act, as
amended, 33 USCA Section 1251 et seq.; (v) the Clean Air Act, as amended, 42
USCA Section 7401 et seq.; (vi) the Hazardous Material Transportation Act, as
amended, 49 USCA Section 1801 et seq.; (vii) the Superfund Amendments and
Reauthorization Act of 1986; and (viii) all rules, regulations, judgments,
decrees, injunctions and restrictions thereunder and any analogous federal,
state or local law. As used above, the terms "release", "threatened release",
"hazardous substance" and "environment" shall have the meaning set forth in
CERCLA, and the terms "solid waste" and "dispose" (or "disposal") shall have the
meaning set forth in the RCRA.
8
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"Environmental Permits" is defined in Section 7.1(bb)(viii).
---------------------
"Equipment Acquisition Agreement" means the Acquisition Agreement for Ericsson
-------------------------------
CMS 40 Personal Communications Systems (PCS) Infrastructure Equipment, dated as
of April 16, 1996, as amended as of July 25, 1997 among Ericsson, OCI, Omnipoint
Communications MB Operations, Inc. (which has been merged with and into
Omnipoint Communications MB Operations, LLC) and Omnipoint Communications
Enterprises, Inc., (which has been merged with and into Omnipoint Communications
Enterprises, L.P.).
"Ericsson" means Ericsson Inc., a Delaware Corporation.
--------
"Ericsson Guaranty" is defined in Section 10.1(r)(iv).
-----------------
"Ericsson Indemnity" is defined in Section 10.1(r)(iv).
------------------
"Ericsson Loan Agreement" means the Amended and Restated Loan Agreement dated as
-----------------------
of June 25, 1998 among the Borrower, Ericsson as administrative agent and lender
and the other lenders named therein or party thereto from time to time.
"Ericsson Radio Systems" means Ericsson Radio Systems AB, a Swedish company.
----------------------
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended,
-----
and the rules and regulations issued thereunder as from time to time in effect.
"ERISA Affiliate" means any Person that is treated as a single employer with the
---------------
Borrower under Section 414 of the IRC.
"ERISA Event" means with respect to any Loan Party or any ERISA Affiliate:
-----------
(a) a Reportable Event,
(b) the withdrawal of any Loan Party or any ERISA Affiliate from a Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA,
(c) the filing of a notice of intent to terminate a Plan under a distress
termination of the Plan under Section 4041(c) of ERISA, or the
treatment of a Plan amendment as a termination under Section 4041 of
ERISA,
(d) the institution of proceedings to terminate a Plan by the PBGC under
Section 4042 of ERISA, or
(e) the occurrence of any other event or condition which might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any
Plan or to cause the imposition of any
9
<PAGE>
liability (other than PBGC premiums due but not delinquent under
Section 4007 of ERISA) in excess of $250,000 under Title IV of ERISA.
"Event of Default" means any of the events specified in Section 12.1.
----------------
"Excess Cash Flow" means with respect to any fiscal year:
----------------
(a) EBITDA for such fiscal year, plus
(b) the aggregate amount of interest paid by the Borrower or any of its
Subsidiaries on any Indebtedness owing to the Parent or any Affiliate
thereof (other than the Borrower and its Subsidiaries) during such
fiscal year, minus
(c) proceeds from any FCC License Transfer by the Borrower or any of its
Subsidiaries, to the extent such proceeds would be included in EBITDA
for such fiscal year, minus
(d) income-tax payments, capital expenditures net of new financing
proceeds, aggregate scheduled principal payments under any
Indebtedness of the Borrower or any of its Subsidiaries (including
payments on amounts owing to the FCC with respect to BTA licenses)
(other than mandatory prepayments out of Excess Cash Flow), in each
case during such fiscal year, plus (if negative) or minus (if
positive), as the case may be,
(e) differences between beginning and ending Working Capital (excluding
for purposes of any determination of working capital receivables past
due more than 60 days, inventory and current portions of long-term
Indebtedness) in respect of such fiscal year.
"Excess Proceeds" means with respect to any FCC License Transfer or any FCC
---------------
License Partition, the Net Cash Proceeds thereof, whether received at the time
of such sale or at any time thereafter, after deducting from such proceeds the
amount of any mandatory prepayment under this Agreement required as a result
thereof and any prepayments to other providers of vendor financing to the
Borrower or any of its Subsidiaries made as a result thereof pursuant to
provisions substantially the same as the applicable provisions of this
Agreement.
"Excluded BTA" means at any date, any BTA:
------------
(a) as to which an FCC License Transfer shall have theretofore occurred,
other than an FCC License Transfer as to which the conditions
specified in clause (II) or (III) of Section 9.1(f)(iii)(B)(1) shall
have been satisfied;
(b) as to which the related FCC License shall have been the subject of a
C-Block General License Revocation Event that occurred 180 or more
days prior to such date unless a License Subsidiary shall then hold an
FCC License or the right to provide PCS services on terms and
conditions acceptable to the Required Lenders with respect to such BTA
covering at least 10 MHZ of spectrum;
10
<PAGE>
(c) as to which the related FCC License shall have been the subject of a
Permitted C-Block License Transfer that occurred 90 or more days
prior to such date unless a License Subsidiary shall then hold a FCC
License or the right to provide PCS services on terms and conditions
acceptable to the Required Lenders with respect to such BTA covering
at least 10 MHZ of spectrum; or
(d) the FCC License for which shall have been transferred to a Qualified
Joint Venture as to which an Insolvency Event shall have theretofore
occurred with respect to any holder of any equity interest in such
Qualified Joint Venture, unless the Grandparent shall have
unconditionally guaranteed, in a manner in form and substance
satisfactory to the Required Lenders, an aggregate principal amount
(plus interest and costs of collection) of the Advances at any time
outstanding equal to the lesser of the aggregate principal amount of
the Advances at any time outstanding and the amount of Attributed
Expenses outstanding at any time that relate to such BTA.
"Excluded Taxes" means taxes imposed on a Person's income, and franchise taxes
--------------
imposed on it in lieu of income taxes, by the jurisdiction under the laws of
which such Person is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its income, and franchise taxes imposed on
it in lieu of income taxes, by the jurisdiction of such Lender's Lending Office
or any political subdivision thereof.
"Expense Allocation Agreement" means the Amended and Restated Expense Allocation
----------------------------
Agreement dated as of June 25, 1998 among the Borrower, Operations and the
Grandparent.
"F-Block FCC License" means any FCC License sold in the FCC's F-Block auction.
-------------------
"FCC" means the Federal Communications Commission or any Governmental Body
---
succeeding to the functions thereof.
"FCC License" means any mobile telephone, cellular telephone, microwave, paging
-----------
or other license, authorization, certificate of compliance, franchise, approval
or permit, whether for the construction or the operation of any PCS System,
granted or issued by the FCC and any other federal Governmental Body with
respect to any BTA.
"FCC License Transfer" means any sale, assignment or other transfer of any FCC
--------------------
License in its entirety or any Stock of a License Subsidiary, other than any
such transfer to a Qualified Joint Venture permitted under Section
9.1(f)(iii)(D).
"FCC License Partition" means a sale, transfer or other disposition of the right
---------------------
to provide PCS services to POPs within a geographic area specified in Schedule
1.1A (as the same may be supplemented from time to time by agreement of the
Borrower and the Required Lenders) that is within a Permitted BTA.
"Federal Funds Rate" means, for any date, the rate set forth in the weekly
------------------
statistical release designated as H.15 (519), or any successor publication,
published by the Federal Reserve Bank of
11
<PAGE>
New York on the preceding Business Day opposite the caption "Federal Funds
(Effective)" or, if such rate is not so published for any such preceding
Business Day, the rate for such day will be the arithmetic mean as determined by
the Administrative Agent of rates for the last transaction in overnight Federal
Funds arranged prior to 9:00 a.m. (New York City time) on that day by each of
three leading brokers (which may include Bank of America National Trust and
Savings Association) of Federal funds transactions in New York City selected by
the Administrative Agent.
"Final Commissioning Date" means the last date upon which an "Acceptance
------------------------
Certificate" (as defined in Section 9.1 of the Equipment Acquisition Agreement)
may be issued by Ericsson in respect of any Eligible Swedish Goods and Services
in respect of which a Disbursement Claim has or may be made hereunder.
"First Commissioning Date" means the date upon which an "Acceptance Certificate"
------------------------
(as defined in Section 9.1 of the Equipment Acquisition Agreement) was first
issued by Ericsson in respect of any Eligible Swedish Goods and Services in
respect of which a Disbursement Claim has been made hereunder.
"First Principal Payment Date" means the earlier of 18 months after the Mean
----------------------------
Commissioning Date and 1 January, 2001.
"Fiscal Quarter" means a fiscal quarter of the Borrower and its Consolidated
--------------
Subsidiaries.
"GAAP" is defined in Section 1.3(a).
----
"Governmental Body" means any nation or government, any state or other political
-----------------
subdivision thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
court or arbitrator.
"Grandparent" means Omnipoint Corporation, a Delaware corporation, together with
-----------
its successors.
"Grandparent Debt Default" means any event or circumstances set out in Section
------------------------
12.1(f)(i), (ii) or (iii) in respect of the Grandparent before the proviso to
each such Section.
"Guaranteed Pension Plan" means any employee pension benefit plan within the
-----------------------
meaning of Section 3(2) of ERISA that is maintained or contributed to by any
Loan Party or any ERISA Affiliate or that was so maintained or contributed to
and in respect of which such Loan Party or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event that such plan has
been or were to be terminated the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
"Guaranties" means at any date, the Ericsson Guaranty, any Limited Recourse
----------
Parent Guaranty, Subsidiary Guaranty or D-, E- and F- Block Subsidiary Parent
Limited Recourse Guaranty theretofore delivered by any Person that shall not
have been terminated or released in accordance with its terms.
12
<PAGE>
"Guarantors" means, at any date, any Person that shall have delivered a Guaranty
----------
that shall not have been terminated and released in accordance with its terms.
"Indebtedness" means as to any Person, at a particular time, all items that
------------
constitute, without duplication:
(a) obligations of such Person in respect of borrowed money or for the
deferred purchase price of Property (other than trade payables
incurred in the ordinary course of business);
(b) obligations of such Person evidenced by notes, bonds, debentures or
similar instruments;
(c) obligations of such Person with respect to any conditional-sale or
title-retention agreement;
(d) obligations of such Person arising under acceptance facilities and the
amount available to be drawn under all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder to the extent such Person shall not have reimbursed the
issuer in respect of the issuer's payment of such drafts;
(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 (other than carriers', warehousemen's,
mechanics', repairmen's or other like non-consensual Liens arising in
the ordinary course of business);
(f) obligations of such Person under Capitalized Leases;
(g) amounts owed by such Person to the FCC on any FCC License;
(h) all Contingent Obligations of such Person; and
(i) interest that is accreted or otherwise accrued and unpaid on
Subordinated Indebtedness.
"Indemnified Party" is defined in Section 14.5.
-----------------
"Insolvency Event" means, in respect of any Person, if such Person shall:
----------------
(a) make an assignment for the benefit of creditors; or
(b) generally not pay its debts as such debts become due or admit in
writing its inability to pay or generally fail to pay its debts as
they mature or become due; or
(c) petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of such Person or of any substantial part of
the assets of any such Person; or
13
<PAGE>
(d) commence any case or other proceeding relating to any such Person
under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation or similar law of any
jurisdiction providing for the relief of debtors, now or hereafter in
effect; or
(e) take any action to authorize or in furtherance of any of the
foregoing,
or any such petition or application shall be filed by another Person or any such
case or other proceeding shall be commenced against such Person and such Person
shall indicate its approval thereof, consent thereto or acquiescence therein or
shall not be able to have such proceeding dismissed within 30 days thereof or
any of the actions sought in such proceeding (including the entry of an order
for relief against, or the appointment of a receiver, trustee, custodian or
other similar official for, it or any substantial part of its property) shall
occur; or any such Person shall take any corporate or limited liability company
action to authorize any of the actions set forth above in this definition.
"Intercreditor Agreement" is defined in Section 10.1(z).
-----------------------
"Interest Payment Date" is defined in Section 3.3.
---------------------
"Interest Period" means, for each Advance, the period commencing on the date of
---------------
such Advance and ending on the last day of such period, determined as provided
in Section 3.5, and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last day of
such period, determined as provided in Section 3.5.
"Investments" means all expenditures made and all liabilities incurred
-----------
(contingently or otherwise) for the acquisition of capital Stock or Indebtedness
of, or for loans, advances, capital contributions or transfers of property to,
or in respect of any guaranties (or other commitments as described under
Contingent Obligations) or obligations of, any Person. In determining the
aggregate amount of Investments outstanding at any particular time:
(a) the amount on any date of determination of any Investment represented
by a Contingent Obligation shall be taken at not less than the
principal amount of the obligations as to which such Contingent
Obligation exists and that are still outstanding on such date of
determination;
(b) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until
such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating
distribution);
14
<PAGE>
(d) there shall not be deducted in respect of any Investment any amounts
received as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid;
(e) there shall not be deducted from the aggregate amount of Investments
any decrease in the value thereof; and
(f) there shall be included as an Investment (i) each receivable (other
than with respect to sales of handsets and accessories thereto) that
is payable more than three months following the date of the sale
giving rise thereto and (ii) each receivable with respect to sales of
handsets and accessories thereto that is payable more than six months
following the date of the sale giving rise thereto.
"IRC" means the Internal Revenue Code of 1986, as amended from time to time, and
---
the rules and regulations issued thereunder as from time to time in effect.
"Lender" is defined in the preamble.
------
"Lending Office" means, with respect to any Lender, the office of such Lender
--------------
specified as its lending office on the signature pages hereof or in the
Assignment and Acceptance pursuant to which it became a Lender, or such other
offices of such Lender as such Lender may from time to time specify to the
Administrative Agent.
"LIBOR" means, for the purpose of determining the interest rate applicable to an
-----
Advance, the arithmetic mean (rounded upwards, if necessary, to the nearest
whole multiple of one-hundredth of one per cent.) of the offered rates for
deposits in Dollars in an amount equal to the Advance (the "relevant amount")
and for the relevant Interest Period which appear on page LIBO of the Reuters
Monitor Money Rates Service for the display of London Interbank Offered Rates
for Dollars at or about 11:00 a.m. two Business Days prior to the first day of
such Interest Period or, if no such offered rates appear on such page, the
arithmetic mean (rounded upwards, if necessary, to the nearest whole multiple of
one-hundredth of one per cent.) of the respective rates notified to the
Administrative Agent by each of the Reference Banks as the rate at which it is
offered deposits in Dollars in the relevant amount and for the required period
in the London Interbank Eurocurrency market at or about 11:00 a.m. two Business
Days prior to the first day of such Interest Period; provided that if any
--------
Reference Bank is unable or unwilling to notify such rate, the rates of the
other Reference Bank(s) shall be taken.
"License Subsidiary" means at any date, each Subsidiary of the Borrower, each D-
------------------
, E- and F-Block Subsidiary that holds an FCC License for a Permitted BTA, other
than any D-, E- and F-Block Subsidiary the pledge of the shares of Stock of
which shall have been released pursuant to the applicable Security Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit or
----
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
15
<PAGE>
Capitalized Lease or other financing lease having substantially the same
economic effect as any of the foregoing.
"Limited Recourse Parent Guaranty" is defined in Section 10.1(r)(i).
--------------------------------
"Loan Documents" means this Agreement, the Collateral Documents, the Guaranties,
--------------
any Subordination Agreement entered into by any Person and the Borrower in
connection herewith, the Intercreditor Agreement, the Support Agreement, the
Equipment Acquisition Agreement, (for the purposes of Articles 13 and 14 only)
the EKN Documents, any mortgage or deed of trust entered into pursuant to
Section 8.1(n), any letter referred to in Section 3.1(d) and any other
agreements or documents contemplated hereby or thereby and all schedules,
exhibits and annexes thereto.
"Loan Parties" means, collectively, the Borrower, the Grandparent, the Parent
------------
and each other Guarantor and (for the purposes of Article 13 and 14 only) EKN.
"Margin" means 0.455% per annum.
------
"Marketing Expenses" means, with respect to any period, the sales and marketing
------------------
expenses of the Borrower and its Subsidiaries for such period, including,
without limitation, any such expenses incurred during such period in respect of
sales literature and advertising; promotions; subscriber acquisition services;
amounts allocable during such period to marketing expenses in respect of travel,
entertainment, sales training, office expenses and research; and the difference
(if negative) between revenues from sales of handsets during such period and the
cost of such handsets, as determined on a basis consistent with the Borrower's
accounting methods that are consistent with GAAP.
"Material Adverse Effect" means an effect resulting from any circumstance or
-----------------------
event of whatever nature (including any adverse determination in any litigation)
which does, or could reasonably be expected to:
(a) materially and adversely impair the validity or enforceability of any
of the EKN Documents or the Loan Documents or the Administrative
Agent's, the Collateral Agent's or any Lender's rights or remedies
with respect thereto;
(b) materially and adversely impair the ability of any Loan Party or EKN
to pay any amounts owing hereunder, under any other Loan Document or
under any EKN Document in accordance with its terms;
(c) cause a Potential Event of Default or an Event of Default;
(d) materially and adversely affect the business, Property, prospects,
operations, or financial or other condition of any Loan Party or EKN;
or
(e) materially and adversely impair or affect the Collateral or the
Collateral Agent's Liens on the Collateral or the priority of such
Liens.
16
<PAGE>
"Material Contract" means, with respect to any Person, each contract to which
-----------------
such Person is a party involving aggregate consideration payable to or by such
Person of $5,000,000 or more in any 12-month period or otherwise material to the
business, condition (financial or otherwise), operations, performance,
Properties or prospects of such Person.
"Materials of Environmental Concern" means any chemicals, pollutants or
----------------------------------
contaminants, hazardous substances (as such term is defined under CERCLA), solid
wastes and hazardous wastes (as such terms are defined under the RCRA), toxic
materials, oil or petroleum and petroleum products, by-products or breakdown
products or any other material subject to regulation under any Environmental
Laws.
"Maturity Date" means the earlier of:
-------------
(a) July 1, 2005;
(b) the day which is 54 months after the First Principal Payment Date; and
(c) the date of the acceleration of the Advances pursuant to Sections
5.2(e) or 12.1.
"Mean Commissioning Date" means the day which is chronologically half way
-----------------------
(rounded back one day) between the First Commissioning Date and the Final
Commissioning Date.
"Miami BTA" means BTA No. 293.
---------
"Mortgage Lien" means any mortgage (or deed of trust) Lien with respect to Real
-------------
Estate.
"Mortgages" is defined in Section 10.1(s).
---------
"MTA" means any "major trading area" as set forth in the Rand McNally 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, at pages 38-39 and utilized
by the FCC in dividing the 50 states, the District of Columbia and United States
territories into 51 MTAs for the purpose of licensing PCS Systems.
"Multiemployer Plan" means a "multiemployer plan" as defined in Sections
------------------
4001(a)(3) and 3(37) of ERISA, and to which any Loan Party or any ERISA
Affiliate is making, or is obligated to make, contributions or has made, or has
been obligated to make, contributions.
"Necessary Authorizations" means all approvals and licenses from, and all
------------------------
filings and registrations with, any governmental or other regulatory authority,
including each FCC License held by a License Subsidiary and all grants,
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower and its Subsidiaries to own,
construct, maintain and operate PCS Systems.
"Net Cash Proceeds" means with respect to any transaction by any Person, the
-----------------
aggregate amount of cash received from time to time by or on behalf of such
Person in connection with such transaction, after deducting therefrom only:
17
<PAGE>
(a) reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions payable by such Person;
(b) the amount of taxes payable by such Person in connection with or as a
result of such transaction; and
(c) payments made to repay Indebtedness outstanding at the time of such
transaction that is secured by a Lien on the property or asset sold
(which Lien is permitted by clause (h) of the definition of "Permitted
Liens") and which is required by the terms of the instrument creating
such Lien or evidencing such Indebtedness secured thereby to repay
such Indebtedness.
in each case to the extent, but only to the extent, that the amounts so deducted
are, at the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of the Borrower and are properly attributable to such transaction
or to the asset that is the subject thereof.
"Net Income" means, for any period, the net income (or loss) of the Borrower and
----------
its Subsidiaries for such period determined on a Consolidated basis and in
accordance with GAAP.
"Non-Cash Consideration" means, in respect of a Qualified Joint Venture, the
----------------------
greater of:
(a) the net book value of the assets (as determined in accordance with
GAAP) contributed thereto (or, in the case of a contribution by way of
an FCC License Partition, a ratable portion of such net book value,
determined with respect to the total POPs of the applicable BTA), net
of any purchase-money Indebtedness of the Borrower or any of its
Subsidiaries in respect thereof that is assumed by the acquiror
thereof; and
(b) the fair-market value of the assets contributed to such Qualified
Joint Venture, as determined in good faith by the Board of Directors
of the Grandparent.
"OCI" means Omnipoint Communications Inc., a Delaware corporation, together with
---
its successors.
"OHI" means Omnipoint Holdings, Inc., a Delaware corporation, together with its
---
successors.
"OII" means Omnipoint Investments, Inc., a Delaware corporation, together with
---
its successors.
"Omnipoint Services" means Omnipoint Communications Services, LLC., a Delaware
------------------
limited liability company, together with its successors.
"OPCS" means OPCS Philadelphia Holdings, LLC., a Delaware limited liability
----
company.
"Operating Subsidiary" means Operations and each other Subsidiary of the
--------------------
Borrower that is engaged in the business of building out and operating one or
more BTAs on behalf of one or more License Subsidiaries.
18
<PAGE>
"Operations" means Omnipoint Communications MB Operations, LLC., a Delaware
----------
limited liability company, together with its successors.
"Other Taxes" means any present or future stamp or documentary taxes or any
-----------
other excise or property taxes, charges or similar levies that arise from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or the other Loan Documents.
"Ownership Fraction" means, at any date, a fraction, expressed as a percentage,
that is equal to:
(a) a fraction, the numerator of which is the number of shares of Voting
Stock of the Borrower legally and beneficially owned by the Parent as
of such date and the denominator of which is the total number of
shares of such Stock outstanding as of such date, multiplied by
(b) a fraction, the numerator of which is the number of shares of Voting
Stock of the Parent legally and beneficially owned by the Grandparent
as of such date and the denominator of which is the total number of
shares of such Stock outstanding as of such date.
"Parent" means OPCS Two LLC., a Delaware limited liability company, together
------
with its successors.
"Parent Pledge Agreement" is defined in Section 10.1(q)(ii).
-----------------------
"PBGC" means the Pension Benefit Guaranty Corporation created by Section 4002 of
----
ERISA, or any Governmental Body succeeding to the functions thereof.
"PCS" means the business of providing mobile communications services through the
---
use of microcells on microwave broadband frequencies with numerous low-power
transmitters, each serving a small area, but excluding cellular telephone
services.
"PCS System" means a PCS radio-telephone system constructed and operated
----------
pursuant to an FCC License therefor held by a License Subsidiary.
"Permitted BTA" means at any date:
-------------
(a) any BTA the FCC License for which is listed in Part I or II of
Schedule 1.1 and is held by a License Subsidiary as of such date,
(b) any BTA for which an FCC License is acquired at the time of or prior
to a disposition permitted by Section 9.1(f)(iii)(B)(1)(II), (III) and
(IV); and
(c) any other BTA acceptable to the Required Lenders the FCC License for
which is held by a License Subsidiary as of such date,
in any case other than any BTA that shall have become an Excluded BTA on or
before such date.
19
<PAGE>
"Permitted C-Block FCC License Transfer" means a disposition, whether or not for
any consideration, of a C-Block FCC License in respect of a Permitted BTA as to
which all of the following are true:
(a) the Borrower or any of its Subsidiaries owes Indebtedness to the FCC
in respect of such FCC License and, after giving effect to such
disposition, neither the Borrower nor any Subsidiary of the Borrower
shall have any liability in respect of such Indebtedness;
(b) the transferee of such FCC License is the FCC or a Wholly Owned
Subsidiary of the Grandparent other than the Borrower or a Subsidiary
of the Borrower; and
(c) except in case of a transfer directly to the FCC, such disposition is
effected by a written agreement in form and substance reasonably
satisfactory to the Required Lenders under which:
(i) such transferee and the Grandparent agree that, while any
Advances are outstanding or any Lender has any Commitment to
participate in any Advance:
(A) for so long as such transferee shall own or hold such FCC
License, it will remain a Wholly Owned Subsidiary of the
Grandparent, shall engage in no activities other than the
holding of such FCC License and have no liabilities other
than Indebtedness owing to the FCC in respect of such FCC
License;
(B) for so long as such transferee shall own or hold such FCC
License, it shall not voluntarily allow such FCC License or
any rights thereunder to provide PCS services to be used
other than by the Borrower or a Subsidiary of the Borrower;
and
(C) such transferee shall not voluntarily transfer such FCC
License or any rights thereunder to any Person other than
the Borrower, a Subsidiary of the Borrower or the FCC; and
(ii) such transferee and the Grandparent confirm that the
Administrative Agent and the Lenders are third-party
beneficiaries of the obligations of the transferee and the
Grandparent thereunder.
"Permitted Indebtedness" means:
----------------------
(a) in the case of the Borrower:
(i) Indebtedness to the Lenders arising under any of the Loan
Documents;
20
<PAGE>
(ii) Indebtedness outstanding under a Permitted Loan Agreement,
except, with respect to working capital loans only, as described
in paragraph (a)(iv) below;
(iii) Subordinated Indebtedness;
(iv) Indebtedness the proceeds of which are used solely for working-
capital purposes, but only so long as the aggregate principal
amount of such Indebtedness outstanding on any date does not
exceed the lesser of:
(A) $25,000,000; and
(B) an amount that, when divided by the aggregate POPs of all
Permitted BTAs, equals $2.00; and
(v) guaranties of Indebtedness permitted under paragraph (c)(ii) or
(iii) below;
(b) in the case of any of the Borrower's Subsidiaries:
(i) Indebtedness arising by way of a guaranty of Indebtedness of the
Borrower under any Permitted Loan Agreement; and
(ii) Indebtedness owing to the Borrower not evidenced by a note or
other instrument; and
(c) in the case of any License Subsidiary:
(i) Indebtedness owing to the FCC in connection with the payment of
the deferred-purchase price of FCC Licenses held by such License
Subsidiary; provided that all such Indebtedness for all Licensed
--------
Subsidiaries shall not exceed $52,500,000 in aggregate (plus
interest (other than default interest) accruing according to
applicable law); and
(ii) Indebtedness owing to any Person incurred in connection with any
extension of the maturity, or any refunding or refinancing, in
whole or in part, of any Indebtedness described in paragraph (c)
(i) above of such License Subsidiary, but only to the extent
that:
(A) such extension, refunding or refinancing is otherwise
permitted by this Agreement; and
(B) the principal amount of such Indebtedness shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or
refinancing, the maturity date thereof shall not be reduced
and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such
extension, refunding or refinancing; and
21
<PAGE>
(iii) purchase-money Indebtedness owing to the seller of:
(A) any FCC License; or
(B) all of the Stock in any Person holding an FCC License,
in each case incurred by a License Subsidiary that holds no other
assets in order to acquire such FCC License or such Stock, but only to
the extent that such Indebtedness is (x) unsecured and (y) non-
recourse to the Borrower or any Subsidiary of the Borrower other than
such License Subsidiary except for Contingent Obligations permitted
under Section 9.1(c)(iii); and
(d) in the case of the Borrower and any Operating Subsidiary:
(i) purchase-money Indebtedness (in addition to all other purchase-
money Indebtedness permitted pursuant to this definition) and
guaranties of such purchase-money Indebtedness permitted under
paragraphs (c)(ii) or (iii) above in an aggregate principal
amount outstanding at any one time not to exceed $45,000,000 in
aggregate (but, with respect to any such purchase-money
Indebtedness, only to the extent such purchase-money Indebtedness
is in a principal amount that does not exceed the fair market
value of the Property being acquired);
(ii) (A) Capitalized Lease obligations at any one time outstanding
not to exceed $5,000,000 in aggregate; and
(B) Indebtedness incurred in the acquisition of Real Estate or
within six months after the date of acquisition of Real
Estate and that is secured by a Lien on such Real Estate
permitted under paragraph (d)(ii) of the definition of
"Permitted Liens";
but only so long as:
(a) the aggregate principal amount of Indebtedness under
sub-paragraphs (A) and (B) above at any one time
outstanding does not exceed $10,000,000; and
(b) such Indebtedness is in a principal amount that does
not exceed the fair market value of the Property being
acquired or leased;
(iii) purchase-money Indebtedness (in addition to any other purchase-
money Indebtedness described under paragraphs (d)(i) and (ii)
above) incurred in order to acquire inventory, but only to the
extent such Indebtedness is in a
22
<PAGE>
principal amount that does not exceed the fair market value of
the Property being acquired; and
(e) in the case of Indebtedness owing to the Grandparent or any of its
Subsidiaries, only as permitted pursuant to paragraph (a)(iii) above.
"Permitted Liens" means:
---------------
(a) Liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or Liens on Properties to secure
claims for labor, material or supplies in respect of obligations not
overdue;
(b) deposits or pledges made in connection with, or to secure payment of,
workmen's compensation or unemployment insurance;
(c) Liens of carriers, warehousemen, mechanics and materialmen, and other
like Liens on Properties, in existence less than 120 days from the
date of creation thereof and in respect of obligations not overdue;
(d) encumbrances on Real Estate consisting of:
(i) (A) easements, rights of way, zoning restrictions, restrictions
on the use of real property; and
(B) defects and irregularities in the title thereto, landlord's
or lessor's Liens under leases to which the Borrower or any
of its Subsidiaries is a party, and other minor Liens,
none of which;
(x) in the reasonable opinion of the Borrower interferes
materially with the use of the Property affected in the
ordinary conduct of the business of the Borrower or any
of its Subsidiaries; or
(y) individually or in the aggregate have a Material Adverse
Effect; and
(ii) Mortgage Liens to secure the payment of Indebtedness permitted to
be incurred pursuant to paragraph (d)(ii)(B) of the definition of
"Permitted Indebtedness"; provided that:
--------
(A) the amount secured by any Mortgage Lien shall not exceed the
sum of (1) the acquisition cost of the Real Estate secured
thereby and (2) the cost of any improvements constructed
thereon; and
23
<PAGE>
(B) the Borrower or its Subsidiary shall simultaneously with the
acquisition of the Real Estate in question either:
(1) grant to the Collateral Agent for the benefit of the
Secured Parties a second mortgage (or deed of trust),
in form and substance satisfactory to the Required
Lenders, subordinate only to the Mortgage Lien, and
securing the obligations of the Borrower and its
Subsidiaries owing to lenders and/or administrative
agents that are parties to the Intercreditor Agreement;
or
(2) cause the lender in whose favor the Mortgage Lien is to
be made to execute and deliver to the Collateral Agent
for the benefit of the Secured Parties an option to
purchase the Mortgage Lien, substantially in the form
of Exhibit F;
---------
(e) Liens in favor of the Collateral Agent for the benefit of the Secured
Parties securing the obligations permitted to be secured under the
Intercreditor Agreement;
(f) deposits to secure the performance of bids, trade contracts (other
than in respect of Indebtedness 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 of the Borrower or any of its Subsidiaries not to exceed in
the aggregate at any one time $5,000,000;
(g) Liens on FCC Licenses and proceeds of the sale or other disposition
thereof in favor of the FCC securing Indebtedness owing by License
Subsidiaries to the FCC or lenders of "Permitted Indebtedness"
pursuant to paragraph(c)(ii) of the definition of "Permitted
Indebtedness"; and
(h) Liens securing purchase-money Indebtedness permitted pursuant to
paragraph (d)(i), (ii) or (iii) of the definition of "Permitted
Indebtedness" owing to a Person other than Ericsson and that is not a
party to the Intercreditor Agreement; provided that such Liens cover
--------
only the Property acquired with the proceeds of such Indebtedness and
the proceeds of such Property to the extent the applicable Uniform
Commercial Code provides for the automatic perfection of a security
interest in such proceeds.
"Permitted Loan Agreement" is defined in the Intercreditor Agreement and, for
------------------------
the avoidance of doubt, shall include this Agreement and the Ericsson Loan
Agreement.
"Permitted Redemption" means a repurchase or redemption by the Grandparent of
--------------------
not more than 50% of the aggregate Indebtedness of the Grandparent issued
pursuant to any indenture, where such repurchase or redemption is required as a
result of a mandatory obligation on the part of the Grandparent under such
indenture as a result of any change in control of the Grandparent, provided that
--------
after such repurchase or redemption the Grandparent is reasonably likely to be
able to meet its obligations pursuant to the Support Agreement.
24
<PAGE>
"Person" means any natural person, corporation, firm, joint venture, limited
------
liability company, partnership, association, enterprise, trust or other entity
or organization, or any Governmental Body.
"Plan" means with respect to any Loan Party or any ERISA Affiliate, at any time,
----
an employee pension benefit plan as defined in Section 3(2) of ERISA (other than
a Multiemployer Plan) that is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the IRC and:
(a) is maintained for the employees of any Loan Party or any ERISA
Affiliate; or
(b) was so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event that such plan has been or were to be terminated.
"POPs" means, with respect to any BTA or geographic area included therein, the
----
population of such BTA or geographic area as set forth in the 1990 census of the
United States by the United States Census Bureau.
"Portion of Excess Proceeds" means, with respect to any Person, the sale of any
--------------------------
BTA, any FCC License Transfer or FCC License Partition and any date of
determination, a ratable portion (determined by reference to the respective
amounts of the Advances, other vendor-financing advances and capital (including
Subordinated Indebtedness) contributed to the Borrower by such Person and other
Persons, in each case as determined immediately after giving effect to any
prepayment of Advances and other vendor-financing advances as a result of such
sale) of the Excess Proceeds relating to such sale.
"Potential Event of Default" means any event or condition that, with the giving
--------------------------
of notice, the lapse of time, or both, would become an Event of Default.
"Preceding Fiscal Quarter" is defined in Section 9.1(e)(iv)(B).
------------------------
"Property" means, in respect of any Person, all types of real, personal,
--------
tangible, intangible or mixed property, including each FCC License held by a
License Subsidiary.
"Proposed C-Block General License Revocation Event" means any notice of proposed
-------------------------------------------------
rulemaking or other proposal by the FCC as to the possible adoption of any rule
or taking of any action that would be a C-Block General License Revocation Event
or any other event or circumstance that with the passage of time would become a
C-Block General License Revocation Event or that would be a C-Block General
License Revocation Event but for the existence of any stay or injunction then in
effect with respect thereto.
"Qualified Joint Venture" means any Person (a "Joint Venture") all of the Stock
-------------
of which is owned by the Borrower and/or any of its Subsidiaries and any other
Person or Persons that is not or are not Affiliates of the Borrower and as to
which the following conditions shall have been satisfied as of the date on which
such Joint Venture becomes a Qualified Joint Venture and at all time thereafter:
25
<PAGE>
(a) the Borrower or such Subsidiary owns, directly or indirectly through
one or more Wholly Owned Subsidiaries, at least a majority of each
class and series of Voting Stock of such Joint Venture, and such Joint
Venture is a Subsidiary of the Borrower;
(b) all of the Stock of such Joint Venture shall have been pledged to the
Collateral Agent on behalf of the Secured Parties as security, among
other things, for the obligations of the Loan Parties under the Loan
Documents;
(c) all conditions and requirements specified in Section 8.1(o) shall have
been complied in respect of such Joint Venture;
(d) such Joint Venture is not subject to any restrictions that would
violate Section 9.1(s);
(e) the Stock and stockholders of such Joint Venture shall not be subject
or parties to any agreement:
(i) under which the majority shareholder would not have day-to-day
control of the operations of such Joint Venture; or
(ii) that would be binding on any Person acquiring such Stock by
reason of realization thereon by the Collateral Agent; and
(f) the Stock of such Joint Venture held by anyone other than the Borrower
and its Subsidiaries shall not have the benefit of any special or
preferential rights not applicable to all Stock held by the Borrower
and its Subsidiaries.
"Rate Hedging Agreements" means any and all agreements, devices or arrangements
-----------------------
designed to protect at least one of the parties thereto from the fluctuations of
interest rates, exchange rates or forward rates applicable to such party's
assets, liabilities or exchange transactions, including dollar-denominated or
cross-currency interest-rate exchange agreements, forward-currency-exchange
agreements, interest-rate-cap or dollar-protection agreements, forward-rate-
currency or interest-rate options, puts and warrants, and any and all
cancellations, buy backs, reversals, terminations or assignments of any of the
foregoing.
"RCRA" means the Resource Conservation and Recovery Act of 1976, as amended, 42
----
USCA Section 6901 et seq.
"Real Estate" means any parcel of real property or any facility currently (or
-----------
for purposes of compliance with Environmental Laws, formerly) owned, operated or
controlled by the Borrower or any of its Subsidiaries.
"Reference Banks" means Bank of America National Trust and Savings Association,
---------------
London Branch, Canadian Imperial Bank of Commerce, London Branch, Lloyds Bank
PLC and Merita Bank Plc.
"Register" is defined in Section 14.9(d).
--------
26
<PAGE>
"Remaining Amount" is defined in Section 12.1(f)(i)(A)(i).
----------------
"Reportable Event" means the occurrence of any of the events set forth in
----------------
Section 4043(c) of ERISA or the regulations thereunder with respect to a Plan.
"Required Lenders" means at any time, Lenders owed at least sixty-six and two-
----------------
thirds in interest of the aggregate unpaid principal amount of the Advances
then-outstanding, or, if no Advances are then outstanding, Lenders having at
least sixty-six and two-thirds of the undrawn Commitments.
"Revenue" means, for any period, with respect to the Borrower and its
-------
Subsidiaries on a Consolidated basis:
(a) the sum, without duplication, of:
(i) gross billings to subscribers, net of taxes and other direct
pass-through charges;
(ii) revenue from the sale of handsets in the ordinary course of
business, net of the cost of such handsets (if positive);
(iii) so-called "roamer revenue", net of direct pass-through charges;
and
(iv) other revenue (in the case of resales, net of associated direct
costs), minus
(b) all revenue arising from payments by Affiliates (except where the
Affiliate is acting as a reseller of goods or services),
in each case as determined in accordance with GAAP and with respect to such
period.
"Secured Parties" means, collectively, the Administrative Agent, the Collateral
---------------
Agent, the Lenders and the other administrative agents and lenders parties to
the Intercreditor Agreement from time to time.
"Security Agreement" means, at any date, any Subsidiary Security Agreement,
------------------
Borrower Security Agreement, Parent Pledge Agreement and D-, E- and F-Block
Subsidiary Parent Pledge Agreement theretofore delivered that shall not have
been terminated and released in accordance with its terms.
"Services Agreement" means the Services Agreement between Operations and
------------------
Omnipoint Services substantially in the form of Exhibit D-1 hereto.
"Solvent" means, with respect to any Person on a particular date, the condition
-------
that on such date:
(a) the present fair salable value of the Property of such Person is
greater than the total amount that will be required to pay the
probable liabilities of such Person as and when they become due,
including Contingent Obligations, of such Person;
27
<PAGE>
(b) such Person is paying, and believes that it will be able to pay in the
future, its debts generally as and when they become due; and
(c) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person's
Property would constitute an unreasonably small amount of capital.
"Stock" means, with respect to any Person, any and all shares of capital stock,
-----
partnership or other interests or units, participations or equivalent rights of
or in such Person and interests, participations, warrants, convertible
securities or other equivalents (however designated) therein or with respect
thereto.
"Subordinated Indebtedness" means Indebtedness of the Borrower as to which the
-------------------------
holder thereof has executed and delivered a Subordination Agreement.
"Subordination Agreement" means a Subordination Agreement substantially in the
-----------------------
form of Exhibit G.
---------
"Subsidiary" means, as to any Person, any corporation, association, partnership,
----------
joint venture or other business entity of which such Person and/or any
Subsidiary of such Person directly or indirectly, either:
(a) in respect of a corporation, owns or controls more than 50% of the
outstanding Voting Stock, irrespective of whether a class or classes
shall or might have voting power by reason of the happening of any
contingency; or
(b) in respect of an association, partnership, joint venture or other
business entity, is entitled to share in more than 50% of the profits
and losses, however determined.
"Subsidiary Guaranty" is defined in Section 10.1(r)(iii).
-------------------
"Subsidiary Security Agreement" is defined in Section 10.1(q)(iv).
-----------------------------
"Support Agreement" is defined in Section 10.1(aa).
-----------------
"Taxes" means any and all present or future taxes, levies, assessments, imposts,
-----
duties, deductions, fees, withholdings or similar charges, and all liabilities
with respect thereto but excluding Excluded Taxes.
"Termination Date" means December 31, 2000.
----------------
"Total Commitment Amount" means US$160,000,000.
-----------------------
"Total Commitments" means at any date, an amount that is equal to:
-----------------
(a) the Total Commitment Amount, minus
28
<PAGE>
(b) the aggregate amount by which the Total Commitments shall have been
permanently reduced pursuant to Sections 2.2(a), (c) or (d) on or
prior to such date.
"Tranche X Advance" is defined in the Ericsson Loan Agreement.
-----------------
"Voting Stock" means stock or similar interests, of any class or classes
------------
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
"West Palm Beach BTA" means BTA No. 469.
-------------------
"Wholly Owned" means, as applied to any Subsidiary of a Person, a Subsidiary all
------------
the outstanding shares (other than directors' qualifying shares, if required by
law) of every class of Stock of which are at the time owned by such Person or by
one or more Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
"Working Capital" means, with respect to any date of determination, the
---------------
difference between the "current assets" and "current liabilities" of the
Borrower and its Subsidiaries on a Consolidated basis as of such date of
determination in accordance with GAAP.
SECTION 1.2 RULES OF INTERPRETATION.
Save where the contrary is indicated, a reference to:
(a) subject to paragraph (k), any document or agreement shall include such
document or agreement as amended, modified or supplemented from time
to time in accordance with its terms and the terms of this Agreement;
(b) the singular includes the plural and the plural includes the singular;
(c) any law includes any amendment, modification to or re-enactment of
such law;
(d) any Person includes its permitted successors and permitted assigns;
(e) accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the
accounting entity to which they refer;
(f) the words "include", "includes" and "including" are not limiting;
(g) terms not specifically defined herein or by GAAP, which terms are
defined in the Uniform Commercial Code as in effect in the State of
New York, have the meanings assigned to them therein;
29
<PAGE>
(h) a particular Section, subsection, clause, paragraph, Schedule or
Exhibit refers to that section, subsection, clause, paragraph,
Schedule or Exhibit to this Agreement, unless otherwise indicated; and
(i) the words "herein", "hereof", "hereunder" and words of like import
shall refer to this Agreement as a whole and not to any particular
section, subsection, clause, paragraph or subdivision of this
Agreement;
(j) time is a reference to London time unless otherwise stated; and
(k) the Ericsson Loan Agreement means, for the purposes of interpreting
this Agreement, a reference to the Ericsson Loan Agreement and shall
not include any other amendment, modification or supplement unless the
Administrative Agent (acting on the instructions of the Required
Lenders) has given its prior written consent to such amendment,
modification or supplement, provided that (subject to Section 9.1(x))
this clause shall not constitute or be construed as a prohibition,
restriction or limitation on the Borrower entering into any such
amendment, modification or supplement.
SECTION 1.3 ACCOUNTING TERMS.
(a) ACCOUNTING TERMS: except as otherwise expressly provided herein, all
accounting terms used herein shall, subject to clause (b), be
interpreted and all financial statements and certificates and reports
as to financial matters required to be delivered to the Administrative
Agent shall be prepared in accordance with the following ("GAAP"):
----
(i) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its
predecessors in effect at December 31, 1997, and
(ii) to the extent consistent with such principles, the accounting
practice of the Borrower reflected in its financial statements
for the fiscal year ended December 31, 1997.
(b) CHANGE OF RULES: if the Financial Accounting Standards Board after the
date hereof shall promulgate or adopt principles that are materially
different from those in effect at December 31, 1997, the Borrower and
the Lenders will endeavor in good faith to amend this Agreement in
order to amend:
(i) the definition of GAAP to include such different principles; and
(ii) the other provisions of this Agreement so as to reflect in
substance the same limitations and restrictions as in effect
prior to such amendment to the definition of GAAP.
30
<PAGE>
Prior to the effective date, if any, of any such amendment, GAAP
shall, however, continue to include only the principles specified in
clause (a)(i) above.
(c) CONTINGENT OBLIGATION: the amount of any Contingent Obligation of a
Person shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as
determined by such Person in good faith.
ARTICLE 2. THE ADVANCES
SECTION 2.1 THE ADVANCES.
Subject to the terms and conditions of this Agreement and the EKN Documents,
each Lender severally agrees, on the terms and conditions hereinafter set forth,
to participate in the making of Advances to the Borrower from the date hereof
until the earlier of:
(a) the Termination Date;
(b) the termination or reduction of the Commitments in their entirety
pursuant to Section 2.2 or 12.1; or
(c) the date specified in B.7(b) of the EKN Undertaking,
up to an aggregate principal amount not to exceed such Lender's Commitment.
SECTION 2.2 REDUCTION OR TERMINATION OF THE COMMITMENTS.
(a) The Borrower may, upon at least four Business Days' notice to the
Administrative Agent (which notice shall once given be irrevocable),
permanently terminate in whole or reduce in part the unused portions
of the Total Commitments.
(b) Each partial reduction referred to in clause (a) shall be in a minimum
amount of $5,000,000 and an integral multiple of $1,000,000 in excess
thereof (or, if less, the Total Commitments) and shall be made ratably
among the Lenders in accordance with their respective Commitment
Percentages.
(c) The Total Commitments shall be automatically and permanently reduced
as of any date on which Advances are prepaid pursuant to Section 5.2
and 5.3, by the aggregate principal amount of the Advances so prepaid.
(d) On the Termination Date the then-remaining undrawn Commitments of the
Lenders shall be automatically terminated.
31
<PAGE>
SECTION 2.3 AMOUNTS OF ADVANCES AVAILABLE FOR BORROWING.
Each requested Advance shall:
(a) be in an amount equal to at least $5,000,000 (or, if less, the
aggregate remaining unused amounts of all Lenders' Commitments),
provided that one Advance per Fiscal Quarter may be for less than
--------
$5,000,000 with respect to any Disbursement Claim submitted within 5
Business Days before the last day of each Fiscal Quarter ending prior
to the Termination Date; and
(b) with respect to the relevant Disbursement Claim be funded by each of
the Lenders on the same day ratably according to their respective
Commitment Percentages; and
in no event shall the aggregate principal amount of all Advances available for
borrowing on any date exceed the Total Commitments as of such date, minus the
Advances then outstanding.
SECTION 2.4 DISBURSEMENT CLAIM.
Subject to the provisions of this Agreement (in particular, Sections 10 and 11):
(a) from time to time Ericsson may present claims which have been
countersigned by the Borrower evidencing its approval thereof or its
consent thereto (not less than 5 Business Days after any previous
Disbursement Claim) to the Administrative Agent in the manner
hereinafter specified and the Borrower hereby agrees that the claims
so made shall constitute Disbursement Claims by Ericsson in accordance
with this Agreement and shall be paid in accordance with Section 2.5;
(b) the Administrative Agent shall open and maintain in its books an
Advances Account in the name of the Borrower, pursuant to which the
Administrative Agent will keep a current record of all Advances made
by the Lenders and all payments and prepayments made on account of
principal thereof;
(c) the Borrower shall, subject to Section 3.5, notify Administrative
Agent in the Disbursement Claim the initial Interest Period for the
Advance to be made pursuant to such Disbursement Claim;
(d) upon presentation of a Disbursement Claim, the Administrative Agent
shall (subject to this Agreement) on the 4th Business Day following
such presentation debit the Advances Account with the amount thereof
and make payment forthwith to Ericsson, and inform the Borrower
thereof;
(e) the Borrower acknowledges that each time that the Administrative Agent
shall debit the Advances Account with the amount of a Disbursement
Claim that an Advance in such amount has been made and is outstanding
for the Borrower's account;
(f) each Disbursement Claim shall be irrevocable and binding on the
Borrower; and
32
<PAGE>
(g) save as otherwise provided herein, the amount of the Disbursement
Claim will be paid to Ericsson and each Advance will be made on a
Disbursement Date only if:
(i) the Disbursement Date is a Business Day on or before the
Termination Date;
(ii) on or before 11:00 a.m. (New York time) four Business Days prior
to the Disbursement Date, the Administrative Agent has received
from Ericsson and the Borrower a Disbursement Claim confirming,
inter alia, the Interest Period selected for the requested
Advance and all the other details referred to in the Disbursement
Claim; and
(iii) each of the conditions precedent specified in Sections 10.1 (with
respect to the initial Advance) and 11.1 (with respect to all
other Advances) have been met.
SECTION 2.5 DRAWDOWN.
Each Lender shall on each Disbursement Date, make available to the
Administrative Agent at the Administrative Agent's Account in Dollars and same-
day funds, such Lender's Commitment Percentage of the Advance to be made on such
Disbursement Date. The Administrative Agent will make such funds available in
same day funds as the Disbursement Date of the proposed Advance to such account
of Ericsson as Ericsson shall have specified in the relevant Disbursement Claim.
SECTION 2.6 NUMBER OF ADVANCES.
Subject to Section 2.7, no more than three Advances may be outstanding at any
one time.
SECTION 2.7 DEEMED ADVANCE.
For the purposes of Section 2.6, any Advances that have Interest Periods ending
on the same date shall be treated as one Advance.
ARTICLE 3. FEES, INTEREST AND PAYMENTS
SECTION 3.1 FEES.
The Borrower will pay:
(a) Commitment Fee: to the Administrative Agent for the account of the
--------------
Lenders in accordance with their Commitment Percentage for the period
(including any portion thereof when any of its Commitments are
suspended by reason of the Borrower's inability to satisfy any
condition of Articles 10 or 11) commencing on the date hereof and
continuing through to the Termination Date a commitment fee equal to
0.10% per annum of the daily unused portion of the Total Commitment
Amount, payable:
33
<PAGE>
(i) quarterly in arrears from the date hereof;
(ii) on the date of any reduction of the Total Commitment Amount
pursuant to Section 2.2; and
(iii) on the Termination Date;
(b) Collateral Agent's Fees: to the Collateral Agent for its own account
-----------------------
such fees as may from time to time be agreed between the Borrower and
the Collateral Agent;
(c) EKN Fees: to EKN such fees or premia as may from time to time be
--------
requested by EKN in accordance with the EKN Documents or the Loan
Documents; and
(d) Administrative Agent's and Arranger's Fees: to the Administrative
------------------------------------------
Agent and the Arranger the fees specified in the fee letter agreement
dated the same date hereof by and between the Arranger and the
Borrower, on the dates specified in such fee letter agreement or in
such other amounts and on such dates as may from time to time be
agreed (including, in any other applicable letter to which the
Borrower is a party).
SECTION 3.2 INTEREST.
Subject to this Agreement, the Borrower shall pay interest on the unpaid
principal amount of each Advance from and including the date of such Advance
through but excluding the date on which such principal amount shall be paid in
full, at a rate per annum equal at all times during each Interest Period for
such Advance to the sum of:
(a) LIBOR for such Interest Period for such Advance, plus
(b) the Margin.
SECTION 3.3 PAYMENT DATES.
Interest accrued on:
(a) each Advance shall be payable in arrears, without duplication:
(i) on the last day of each Interest Period (an "Interest Payment
----------------
Date") therefor;
----
(ii) on the date of any repayment or prepayment, in whole or in part,
of principal outstanding on such Advance on such Advance or
portion thereof which is being prepaid;
(iii) on that portion of any Advance that is accelerated pursuant to
Section 12.1, immediately upon such acceleration;
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(iv) where any Interest Period is for longer than 3 months, the last
day of each 3 month period commencing on the first day of such
Interest Period; and
(b) Advances or other monetary obligations arising under this Agreement or
any other Loan Document after the date such amount is due and payable
(whether on the Interest Payment Date, upon acceleration or
otherwise), shall be payable upon demand.
SECTION 3.4 INTEREST AFTER DEFAULT.
(a) The Borrower shall pay interest on the amount of any principal,
interest, fee or other amount payable hereunder or under any Loan
Document that is not paid on the date when due or any sum that is due
and payable by the Borrower under any judgment of any court of
competent jurisdiction in connection herewith or therewith, from the
period beginning on such date or, as the case may be, the date of such
judgment and ending on the date upon which the obligation of the
Borrower to pay such sum (the balance thereof for the time being
unpaid being herein referred to as an "unpaid sum") is discharged
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which period shall be divided into successive periods, each of which
(other than the first) shall start on the last day of the preceding
such period and the duration of each of which shall be selected by the
Administrative Agent, at a rate per annum equal at all times to 2.00%
per annum plus the LIBOR Rate plus the Margin.
(b) Any interest which shall have accrued pursuant to clause (a) in
respect of an unpaid sum shall be due and payable and shall be paid by
the Borrower at the end of the period by reference to which it is
calculated or on such other dates as the Administrative Agent may
specify by written notice to the Borrower.
SECTION 3.5 INTEREST PERIOD.
(a) The duration of each Interest Period shall be one, three or six months
in each case as the Borrower may, by not less than three Business Days
prior written notice to the Administrative Agent, select, or such
other period as is agreed with the Lenders; provided that:
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(i) if the Borrower fails to give such notice for any Interest
Period, the duration of that Interest Period shall, subject to
clauses (ii)-(vi) below, be three months;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next-succeeding
Business Day;
(iii) if such extension referred to in clause (ii) would cause the last
day of such Interest Period to occur in the next-following
calendar month, the last day of such Interest Period shall occur
on the next-preceding Business Day;
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(iv) whenever the first day of any Interest Period occurs on the last
day of a calendar month or one for which there is no numerically
corresponding Business Day in the later month in which such
Interest Period ends, such Interest Period shall end on the last
Business Day of such later month; and
(v) the Borrower may select an initial Interest Period for each
Advance that permits it to comply with Section 2.6; and
(vi) no Interest Period shall extend beyond the next date upon which a
payment of principal is scheduled or known by the Borrower (at
the time of selection of such Interest Period) to be due to be
made pursuant to this Agreement.
(b) When two or more Advances have Interest Periods that end on the same
day, then, on the last day of those Interest Periods, the Advances to
which such Interest Periods relate shall be consolidated into (and
thereafter, save as otherwise provided herein, be treated in all
respects as) a single Advance.
SECTION 3.6 INTEREST RATE DETERMINATION.
If:
(a) with respect to any Advance, the Required Lenders notify the
Administrative Agent that LIBOR for any Interest Period for such
Advance will not adequately reflect the cost to such Required Lenders
of making, funding or maintaining their Commitment Percentages for
such Advance for such Interest Period, the Administrative Agent shall
forthwith so notify the Borrower and the Lenders, whereupon:
(i) the interest payable on each Advance will automatically, from and
including the last day of the then-existing Interest Period
therefor, be calculated at the rate per annum equal to the Base
Rate plus the Margin; and
(ii) the obligations of the Lenders to make Advances shall be
suspended immediately,
until such time as the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no
longer exist; or
(b) the Administrative Agent cannot determine LIBOR for any Advance:
(i) the Administrative Agent shall forthwith notify the Borrower and
the Lenders that the interest rate cannot be determined for such
Advance;
(ii) the interest payable on each such Advance will automatically,
from and including the last day of the then-existing Interest
Period therefor, be calculated at the rate per annum equal to the
Base Rate; and
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(iii) the obligation of the Lenders to make Advances shall be suspended
immediately,
until the Administrative Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist; or
(c) if, as a result of any event or other circumstances, the interest
payable hereunder on any Advance is required by this Agreement to be
determined by reference to the Base Rate and the Administrative Agent
is unable for any reason to determine the Base Rate (including if Bank
of America National Trust and Savings Association does not offer or
publicize its reference rate) then:
(i) the Administrative Agent shall promptly notify the Borrower and
the Lenders that an event or circumstance has arisen, the result
of which is that the Administrative Agent is unable to determine
the Base Rate; and
(ii) if the Administrative Agent or the Borrower so requires, within
five days of such notification the Administrative Agent and the
Borrower shall enter into negotiations with a view to agreeing
between the Required Lenders and the Borrower a substitute basis
(A) for determining the rates of interest from time to time
applicable to the Advances and/or (B) upon which the Advances may
be maintained thereafter and any such substitute basis that is
agreed shall take effect in accordance with its terms and be
binding on each party hereto; and
(iii) if the Administrative Agent and the Borrower have entered into
such negotiations and an agreement acceptable to the Required
Lenders and the Borrower is not reached within two Business Days
of the date of entry into such negotiations, the rate of interest
applicable to the Advances denominated in such currency from time
to time during an Interest Period shall be the rate per annum
which is the sum of the Margin and the rate per annum determined
by the Administrative Agent to be the average (rounded upwards to
one hundredth of one percent) of the rates notified by each
Lender to the Administrative Agent before the last day of such
Interest Period to be those which express as a percentage rate
per annum the cost to such Lender of funding from whatever
sources it may reasonably select its portion of such Advance
during such Interest Period.
SECTION 3.7 PAYMENT AND COMPUTATIONS.
(a) The Borrower and the Lenders shall each make each payment by it
hereunder not later than 11:00 a.m. (New York time) on the day when
due in Dollars to the Administrative Agent at the Administrative
Agent's Account in same-day funds. Payment shall be deemed to have
been made for all purposes under this Agreement when received by the
Administrative Agent at the Administrative Agent's Account in New
York.
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(b) The Administrative Agent will, promptly after its receipt thereof,
cause to be distributed funds of the kind received relating to the
payment of principal or interest or fees and other amounts ratably to
the Lenders in accordance with their Commitment Percentages.
(c) Upon the Administrative Agent's acceptance of an Assignment and
Acceptance and recording of the information contained therein in the
Register pursuant to Section 14.9(d), from and after the effective
date specified in such Assignment and Acceptance, the Administrative
Agent shall make all payments hereunder in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly
between themselves.
(d) All computations of:
(i) interest (except if determined by reference to the Base Rate) and
fees shall be made by the Administrative Agent on the basis of a
year of 360 days; and
(ii) interest determined by reference to the Base Rate shall be made
by the Administrative Agent on the basis of a year of 365 days,
for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or fees
are payable.
(e) Each determination by the Administrative Agent of an interest rate
hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(f) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the
succeeding Business Day, unless such Business Day is in the following
calendar month, in which case such payment shall be made on the
preceding Business Day.
(g) To the extent permitted by Applicable Law, all payments by the
Borrower hereunder and under any of the other Loan Documents shall be
made without setoff or counterclaim.
SECTION 3.8 USE OF PROCEEDS.
Subject to any restrictions or limitations that EKN may require in connection
with the EKN Documents, the proceeds of each Advance shall be available (and the
Borrower shall use such proceeds) only for the purchase price of Eligible
Swedish Goods and Services pursuant to the Equipment Acquisition Agreement being
paid with the proceeds of an Advance hereunder simultaneously with the making of
such Advance.
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ARTICLE 4. EXPORT CREDIT GUARANTEES
SECTION 4.1 EKN GUARANTEE.
The Administrative Agent will promptly provide each Lender with a copy of the
Administrative Agent's acceptance of EKN's offer pursuant to the EKN Undertaking
to issue the EKN Guarantees and will:
(a) upon and subject to the terms of:
(i) the EKN General Conditions; and
(ii) the EKN Undertaking,
in respect of each Advance, promptly:
(A) on behalf of the Lenders and to the extent it is reasonably
able, submit the relevant application form to EKN for the
issuance of an EKN Guarantee in respect of such Advance; and
(B) effect payment of any premium payable to EKN pursuant to any
EKN Guarantee for such Advance, notify each Lender when such
payment is made and promptly provide a copy of such EKN
Guaranty upon receipt by the Administrative Agent; and
(b) promptly provide (prior to an Event of Default) to the Borrower and
(at all times) to each Lender copies of any:
(i) application referred to in clause (a)(A); and
(ii) correspondence in which EKN takes or threatens to take any action
referred to in Section 4.2, so long as it is permitted by
Applicable Law and not prohibited from doing so by EKN.
SECTION 4.2 INVALIDITY OR IMPAIRMENT OF EKN DOCUMENTS.
Subject to Sections 4.3, 4.4 and 4.5, if:
(a) EKN unequivocally repudiates the EKN Undertaking or any of the EKN
Guarantees or does or causes to be done any act or thing evidencing in
writing that it unequivocally intends to repudiate the EKN Undertaking
or any of the EKN Guarantees; or
(b) at any time any act, condition or thing required to be done, fulfilled
or performed in order:
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(i) to enable EKN lawfully to enter into, exercise its rights under
and perform the obligations expressed to be assumed by it in the
EKN Undertaking or any of the EKN Guarantees; or
(ii) to ensure that the obligations expressed to be assumed by EKN in
the EKN Undertaking or any of the EKN Guarantees are legal, valid
and binding; or
(iii) to make any EKN Document admissible in evidence in any relevant
jurisdiction,
is not done, fulfilled or performed or any authorization required in
connection therewith is withdrawn or revoked; or
(c) the EKN Undertaking or any of the EKN Guarantees is declared void or
voidable or is otherwise no longer binding upon and enforceable
against EKN; or
(d) at any time it is or becomes unlawful for EKN to perform or comply
with any or all of its obligations under the EKN Undertaking or any of
the EKN Guarantees or any of the obligations of EKN under the EKN
Undertaking or any of the EKN Guarantees are not or cease to be legal,
valid and binding; or
(e) EKN ceases to be owned by the Kingdom of Sweden or any material
adverse change occurs in the business, financial condition or assets
of EKN which has or might, in the reasonable opinion of the
Administrative Agent (acting on the instructions of the Required
Lenders) be expected to have the result that EKN may not, or will be
unable to, perform the EKN Undertaking or any of the EKN Guarantees;
or
(f) the relevant authorities in the Kingdom of Sweden take any action
which materially restricts the ability of EKN to meet its payment
obligations under the EKN Undertaking or any of the EKN Guarantees at
the time and in the currency in which they are due; or
(g) EKN ceases to carry on the business it carries on at the date hereof
and, as a result, its ability to perform its material obligations
under the EKN Undertaking or any of the EKN Guarantees or the EKN
Undertaking or any of the EKN Guarantees is reasonably likely to be
materially adversely affected; or
(h) EKN fails to execute and deliver to the Administrative Agent on behalf
of the Lenders an EKN Guarantee in favor of the Lenders for any
Advance made; or
(i) any EKN Guarantee ceases for any reason to secure the obligations of
the Borrower hereunder (including as a result of the expiry of such
EKN Guarantee),
then the Administrative Agent may (and, if so instructed by the Required Lenders
shall) give notice of such event to the Borrower in writing and the Borrower
shall prepay the Advances in full, together with accrued and unpaid interest
thereon and all other amounts then due and payable by the Borrower
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hereunder or under any Loan Document within ninety days (in the case of an EKN
Guarantee) or 180 days (in the case of the EKN Undertaking) of the receipt of
such notice.
SECTION 4.3 PARTIAL UNAVAILABILITY OF EKN GUARANTEE
Subject to Section 4.4 if:
(a) any EKN Guarantee (the "Affected EKN Guarantee") is affected by any of
----------------------
the circumstances referred to in clauses (a) through (i) of Section
4.2; and
(b) the aggregate amount of Indebtedness hereunder which is (or would be
but for any of the circumstances referred to in Section 4.2 or is
intended to be) guaranteed by EKN pursuant to such Affected EKN
Guarantee (individually or in aggregate with all other EKN Guarantees
which have been affected by the circumstances referred to in Section
4.2) is less than $16,000,000,
the Administrative Agent shall only be entitled to make demand pursuant to
Section 4.2 and the Borrower shall only be obliged to prepay an amount equal to
the Advance intended to be guaranteed by EKN pursuant to the Affected EKN
Guarantee.
SECTION 4.4 SUBSTITUTE GUARANTOR.
If any EKN Guarantee is affected by any of the circumstances referred to in
clauses (a) through (i) of Section 4.2, the Borrower may (with the consent of
the Administrative Agent, acting on the instructions of the Required Lenders,
which consent may be withheld in the absolute discretion of the Required
Lenders) procure from a guarantor of equivalent status to EKN (as at the date
hereof) to deliver to the Administrative Agent a guaranty and indemnity in form
and substance satisfactory to the Administrative Agent, which shall only be
accepted by the Lenders on terms and conditions which are satisfactory to the
Required Lenders, which guaranty and indemnity shall be accepted by the
Administrative Agent as a substitute for the relevant Affected EKN Guarantee.
SECTION 4.5 UNAVAILABILITY OF EKN UNDERTAKING.
If the EKN Undertaking is affected by any of the circumstances referred to in
clauses (a), (b), (c), (d), (e), (f) or (g) of Section 4.2, the Administrative
Agent shall only be entitled to make demand pursuant to Section 4.2 if, at the
time of the occurrence of the relevant circumstances the amount of the undrawn
Total Commitments is greater than $16,000,000 and such undrawn Commitments when
drawn will not be guaranteed by EKN as a result of such circumstances.
ARTICLE 5. REPAYMENT AND PREPAYMENT OF THE ADVANCES
SECTION 5.1 REPAYMENT.
(a) Save as otherwise provided herein, the Borrower shall repay the
Advances such that the Advances are on the First Principal Payment
Date and on the last day of each six
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monthly period thereafter reduced by an amount equal to 10% of the
aggregate amount of Advances outstanding immediately after the
Termination Date.
(b) On the Maturity Date, the Borrower shall repay the aggregate then-
outstanding principal amount of the Advances, together with any and
all accrued and unpaid interest thereon and all other amounts due and
owing hereunder and under the other Loan Documents.
SECTION 5.2 MANDATORY PREPAYMENT OF ADVANCES.
(a) No later than three Business Days after its receipt of any Net Cash
Proceeds referred to in clause (i) below, the Borrower shall (if
required by the Administrative Agent (acting on the instructions of
the Required Lenders)) prepay Advances in an aggregate principal
amount equal to:
(i) the Net Cash Proceeds from the direct or indirect sale or
disposition of any Property of the Borrower and/or any of its
Subsidiaries (other than any sale of inventory and other goods in
the ordinary course of business or any disposition by way of an
FCC License Transfer or an FCC License Partition permitted under
Section 9.1(f)(iii)) that is otherwise permitted under this
Agreement during any calendar year, to the extent such aggregate
Net Cash Proceeds received during such calendar year shall exceed
$5,000,000 multiplied by
(ii) a fraction, (A) the numerator of which is the aggregate principal
amount of the Advances outstanding at the time of such sale or
disposition, and (B) the denominator of which is such aggregate
principal amount, plus the aggregate principal amount of all
loans or advances outstanding at the time of such sale or
disposition under the Ericsson Loan Agreement and any other
Permitted Loan Agreements (the loans under which are required to
be prepaid with such Net Cash Proceeds), to the extent the
Intercreditor Agreement permits such prepayment.
(b) If:
(i) at any time after the occurrence of any FCC License Transfer or
FCC License Partition any Indebtedness under any Permitted Loan
Agreement is required to be prepaid, the Borrower wishes to make
any Distribution (other than a Distribution permitted under
Section 9.1(e)(iv)) in respect of its Stock or any Indebtedness
owing to the Parent or any Affiliate thereof (other than the
Borrower and its Subsidiaries), the Borrower will notify the
Administrative Agent of its intention to make such Distribution
at least 10 Business Days prior to the proposed date of such
Distribution;
(ii) the Required Lenders shall so require and if the Borrower shall
make such Distribution by the proposed date of such Distribution,
then the Borrower
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shall prepay the then-outstanding Advances within five Business
Days after receipt of notice of such requirement from the
Administrative Agent in an aggregate principal amount equal to
the same proportion of the Lenders' Portion of Excess Proceeds in
respect of such sale or assignment as such Distribution bore to
the Parent's Portion of Excess Proceeds in respect of such sale
or assignment, until such time as an aggregate amount equal to
the Excess Proceeds in respect of such sale or assignment shall
have been paid to the Lenders, other providers of vendor
financing to the Borrower and its Subsidiaries and the Parent.
(c) Any prepayment pursuant to clauses (a) or (b) shall not reduce the
principal amount of Advances required to be repaid on any date
pursuant to Section 5.1(a), to the extent that such Advances are
outstanding on such date.
(d) No prior prepayment of Advances shall reduce the principal amount of
the Advances required to be prepaid pursuant to clauses (a) or (b).
(e) The Borrower shall prepay all outstanding Advances, and the Lenders'
Commitments hereunder shall terminate, upon the termination of the
Equipment Acquisition Agreement as a result of a default thereunder by
the Borrower or its Subsidiaries.
(f) Unless the Lenders shall consent otherwise, if on any date the
Borrower makes an optional prepayment of any loan outstanding under a
Permitted Loan Agreement (other than the prepayment of Tranche Y of
the Ericsson Loan Agreement in Common Stock of the Grandparent or the
refinance of all or a portion of Tranche X of the Ericsson Loan
Agreement pursuant to a Permitted Loan Agreement) for any reason, the
Borrower shall prepay Advances in an aggregate principal amount equal
to:
(i) such prepayment of the loan, multiplied by
(ii) a fraction, (A) the numerator of which is the aggregate principal
amount of the Advances outstanding at the time of such
prepayment, and (B) the denominator of which is such aggregate
principal amount, plus the aggregate principal amount of all
loans outstanding under the Permitted Loan Agreements immediately
prior to such prepayment.
(g) Any prepayment pursuant to this Section 5.2 shall:
(i) be applied to the prepayment of a ratable aggregate principal
amount of such Advances as the Borrower shall specify, and shall
be inversely applied to the ratable reduction of the amounts by
which the Advances are required to be repaid on any date pursuant
to Section 5.1(a); and
(ii) not reduce the principal amount of the Advances required to be
prepaid pursuant to this Section 5.2.
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SECTION 5.3 OPTIONAL PREPAYMENTS OF ADVANCES.
(a) Subject to the terms of the Intercreditor Agreement, the Borrower may,
except as provided below, upon at least five Business Days' notice to
the Administrative Agent (which notice shall be irrevocable), stating
the proposed prepayment date and the aggregate principal amount of the
Advances to be prepaid, and if such notice is given the Borrower
shall, except as otherwise provided in this Section 5.3, prepay such
outstanding principal amount of the Advances so specified in whole or
ratably in part.
(b) Any prepayment pursuant to clause (a):
(i) of less than the entire aggregate principal amount of the
Advances then outstanding shall be applied to the prepayment of a
ratable aggregate principal amount of Advances; and
(ii) shall be applied in inverse order of maturity to the reduction of
the amounts by which such Advances are required to be repaid
pursuant to Section 5.1(a) and shall be in minimum of $5,000,000
and integral multiples of $1,000,000 in excess thereof (or, if
less, the remaining outstanding balance of all Advances).
SECTION 5.4 REBORROWINGS.
Any amount prepaid or repaid pursuant to this Agreement may not be reborrowed.
ARTICLE 6. ILLEGALITY, INCREASED COSTS AND CAPITAL ADEQUACY
SECTION 6.1 ILLEGALITY.
Notwithstanding any other provisions herein:
(a) if any present or future Applicable Law shall make it unlawful for any
Lender to make or maintain its participation in an Advance, such
Lender shall forthwith give notice of such circumstances to the
Borrower, the Administrative Agent and the other Lenders and thereupon
the Commitment of such Lender to participate in making any further
Advance shall forthwith be suspended until such notifying Lender shall
have notified the Administrative Agent and the Borrower that the
circumstance giving rise to such determination no longer exists (and
if such notifying Lender shall determine that such circumstance no
longer exists it shall so notify the Administrative Agent and the
Borrower promptly after determining the same); and
(b) such Lender will designate a different Lending Office if such
designation will avoid the need for any suspension described in the
preceding sentence and will not, in the opinion of such Lender, be
otherwise disadvantageous to such Lender.
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SECTION 6.2 ADDITIONAL COSTS AND CAPITAL ADEQUACY.
(a) If any Applicable Law shall:
(i) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Agreement) any
special-deposit, reserve (including any reserve percentage under
the regulations issued from time to time by the Board of
Governors of the Federal Reserve System for determining the
maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect
to liabilities or assets consisting of or including Eurocurrency
Liabilities (as defined in such regulations) (or, with respect to
any other category of liabilities that includes deposits by
reference to which the interest rate on the Advances is
determined)), assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or
loans by, or commitments of an office of any Lender; or
(ii) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Agreement, the
other Loan Documents, such Lender's Commitment, or any class of
loans, or commitments of which any of the Advances or such
Lender's Commitment form a part,
and the result of any of the foregoing is to increase the cost to such
Lender or any corporation controlling such Lender of making, funding,
issuing, renewing, extending or maintaining its participation in any
of the Advances or such Lender's Commitment (taking into account such
Lender's or such corporation's then-existing policies with respect to
maintaining capital), then the Borrower shall pay to the
Administrative Agent for the account of such Lender, within 15 days
after demand from time to time as specified by such Lender, additional
amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, for such increased costs.
(b) If any Applicable Law, that becomes effective after the date hereof,
affects the amount of capital required or expected to be maintained by
any Lender or any corporation controlling such Lender and such Lender
or such corporation determines that the amount of capital required to
be maintained by it is increased by or based upon the existence of
such Lender's Commitment with respect to any Advances, the Borrower
will pay to such Lender, within 15 days after demand from time to time
as specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines
such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder.
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(c) Each demand by a Lender pursuant to this Section 6.2 shall be
accompanied by a statement setting forth in reasonable detail the
basis for such demand and the computation of such amount, including
any method by which such cost was allocated to the Borrower. In
determining the amount of any compensation, such Lender may use any
reasonable averaging or attribution methods set forth in such demand,
and any such methods so used shall be binding on the Borrower. The
amount specified in any such demand shall be conclusive evidence of
the amount owing, absent manifest error. Such Lender will designate a
different Lending Office if such designation will avoid the need for
or reduce the amount of any compensation under this Section 6.2 and
will not, in the judgment of such Lender, be otherwise disadvantageous
to such Lender. By making any payment under this Section 6.2, the
Borrower is not waiving its right to contest that the amounts set
forth in the certificates are based on manifest error.
SECTION 6.3 TAXES.
The Borrower shall:
(a) make any and all payments hereunder and under any other Loan Document
(which shall, for the avoidance of doubt, include the payment of fees
referred to in Section 3.1) free and clear of and without deduction or
withholding for any Taxes;
(b) if required by Applicable Law to deduct or withhold any Taxes or Other
Taxes from or in respect of any sum payable hereunder and under any
other Loan Document to any Lender or the Administrative Agent:
(i) increase the sum payable as may be necessary so that after making
all required deductions or withholdings (including deductions or
withholdings applicable to additional sums payable under this
Section 6.3) such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have
received had no such deductions or withholdings been made;
(ii) make such deductions and withholdings; and
(iii) pay the full amount deducted or withheld to the relevant taxation
authority or other authority in accordance with applicable law;
(c) pay any Other Taxes;
(d) indemnify each Lender and the Administrative Agent for the full amount
of Taxes or Other Taxes (including any Taxes or Other Taxes imposed by
any jurisdiction on amounts payable under this Section 6.3) paid by
such Lender or the Administrative Agent (as the case may be), and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, which indemnification shall be
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made within 15 days from the date such Lender or the Administrative
Agent (as the case may be) makes written demand therefor;
(e) within 30 days after the date of any payment of Taxes or Other Taxes
furnish to the Administrative Agent the original or a certified copy
of a receipt evidencing payment thereof; and
(f) in the case of any payment hereunder or under any other Loan Document
by or on behalf of the Borrower through an account or branch outside
the United States or on behalf of the Borrower by a payor that is not
a United States person, if the Borrower determines that no Taxes are
payable in respect thereof, furnish, or cause such payor to furnish,
to the Administrative Agent, at such address, an opinion of counsel
acceptable to the Administrative Agent stating that such payment is
exempt from Taxes. (For purposes of this clause (f) and Section 6.4
below, the terms "United States" and "United States person" shall have
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the meanings specified in Section 7701 of the IRC.)
SECTION 6.4 TAX FORMS.
(a) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each initial Lender and on the date
of the Assignment and Acceptance pursuant to which it becomes a Lender
in the case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower (but only so long as such Lender
remains lawfully able to do so), shall provide the Borrower with
Internal Revenue Service Form 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced
rate of United States withholding tax on payments of interest pursuant
to this Agreement. If the form provided by a Lender at the time such
Lender first becomes a party to this Agreement indicates a United
States interest withholding tax rate in excess of zero, withholding
tax at such rate shall be considered excluded from "Taxes" as defined
hereunder. If any form or document referred to in this subsection (a)
requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the
date hereof by Internal Revenue Service form 1001 or 4224, that the
Lender reasonably considers to be confidential, the Lender shall give
notice thereof to the Borrower and shall not be obligated to include
in such form or document such confidential information.
(b) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form described in Section 6.4(a)
(other than if such failure is due to a change in law occurring
------ ----
subsequent to the date on which a form originally was required to be
provided, or if such form otherwise is not required under the first
sentence of clause (a) above), such Lender shall not be entitled to
indemnification under Section 6.3 with respect to Taxes imposed by the
United States; provided that should a Lender become subject to Taxes
--------
because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall
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reasonably request and at such Lender's expense to assist such Lender
to recover such Taxes.
(c) If the Borrower is required to pay any amounts to or for the account
of any Lender pursuant to Section 6.3, such Lender will designate a
different Lending Office if such designation will avoid the need for
or reduce the amount of any such payment and will not, in the judgment
of such Lender, be otherwise disadvantageous to such Lender.
SECTION 6.5 SURVIVAL.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Article 6 shall survive the payment in full of principal and interest hereunder.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES
SECTION 7.1 REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Lenders, the Administrative Agent
and the Arranger as follows:
(a) CORPORATE/LIMITED LIABILITY COMPANY EXISTENCE: each Loan Party in
existence on the date hereof and each of the Borrower's Subsidiaries
(or on any date on which these representations and warranties are
deemed repeated):
(i) is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of its state
of incorporation;
(ii) has all requisite corporate power or has taken all requisite
member and/or management action to own its Property and conduct
its business as now conducted and as presently contemplated; and
(iii) is in good standing as a foreign corporation or limited liability
company and is duly authorized to do business in each
jurisdiction where such qualification is necessary in order to
conduct its business as now conducted except where a failure to
be so qualified would not have a Material Adverse Effect;
(b) SUBSIDIARIES: in respect of its Subsidiaries:
(i) set forth on Schedule 7.1(b)(i) hereto (as updated pursuant to
Section 8.2(s)) is a complete and accurate list of all
Subsidiaries of the Borrower, showing (as to each such
Subsidiary) the jurisdiction of its incorporation, the number of
shares of each class of Stock authorized, and the number
outstanding, on the date hereof and the percentage of the
outstanding shares of each such class owned (directly or
indirectly) by the Borrower, the number of shares covered
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by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof;
(ii) all of the outstanding Stock of each such Subsidiary has been
validly issued, is fully paid and non-assessable and is owned by
the Borrower or one or more of its Subsidiaries free and clear of
all Liens, except those created or permitted under the Loan
Documents or as disclosed in Schedule 7.1(b)(i) (as so updated);
(c) CORPORATE AUTHORITY: the execution, delivery and performance by each
Loan Party of this Agreement and the other Loan Documents to which it
is or is to become a party, and the consummation of the transactions
contemplated hereby and thereby:
(i) are within the corporate or limited liability company authority
of such Loan Party,
(ii) have been duly authorized by all necessary corporate or limited
liability company proceedings,
(iii) do not conflict with or result in any breach or contravention of
any provision of law, statute, rule or regulation to which such
Loan Party is subject or any judgment, order, writ, injunction,
license or permit applicable to such Loan Party or its Property
and
(iv) do not conflict with any provision of the corporate charter,
limited liability company agreement or bylaws of, or any
agreement or other instrument binding upon such Loan Party or its
Property;
(d) ENFORCEABILITY: this Agreement has been and each other Loan Document
when delivered hereunder will:
(i) have been, duly executed and delivered by each Loan Party
thereto;
(ii) be, the legal, valid and binding obligation of each Loan Party
thereto, enforceable against such Loan Party in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors' rights and
except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of
the court before which any proceeding therefor may be brought;
(e) GOVERNMENTAL APPROVALS: the execution, delivery and performance by
each Loan Party of this Agreement and the other Loan Documents to
which such Loan Party is or is to become a party and the transactions
contemplated hereby and thereby do not require the approval or consent
of, or filing with, any governmental agency or authority other than
those already obtained, the approval or consent of the FCC as
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expressly provided in this Agreement with regard to the transfer of
the ownership of the D-, E-, and F-Block License Subsidiaries, and
for any subsequent informational filing with the Securities and
Exchange Commission;
(f) TITLE TO PROPERTIES: the Borrower and each of its Subsidiaries own
all of the FCC Licenses listed on Schedule 7.1(j) hereto (other than
those listed therein which are owned by the D-, E- and F-Block
Subsidiary) and all assets of such Persons acquired since such date
(except property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no rights of
others, including any mortgages, leases, conditional sales-agreements,
title-retention agreements, liens or other encumbrances except
Permitted Liens;
(g) FINANCIAL STATEMENTS:
(i) each financial statement and any related information delivered in
connection herewith has been prepared after due and careful
consideration and having made all reasonable enquiries; and
(ii) such financial statements were prepared in accordance with GAAP
and give (in conjunction with the notes thereto) a true and fair
view of the financial condition of the Loan Parties in all
material respects to which they relate as at the date of which
they were prepared and the results of such Loan Parties
operations during the accounting reference period then ended;
(h) NO MATERIAL ADVERSE EFFECT, ETC: Since December 31, 1997, there has
occurred no Material Adverse Effect and, except as permitted
hereunder, the Borrower has not made any Distribution (other than
continuing losses of the Borrower (x) as disclosed in the Borrower's
financial statements furnished to the Administrative Agent and the
Lenders and (y) materially in compliance with such losses as projected
to continue in the Approved Full-Term Operating Business Plan);
(i) FRANCHISES, PATENTS, COPYRIGHTS, ETC: except as set forth in Schedule
7.1(i), there are no franchises, licenses, patents, copyrights,
trademarks, trade names, or other intellectual property, individually
or in the aggregate, that are material for the conduct of the business
of the Borrower or any of its Subsidiaries, as now conducted or as
presently contemplated to be conducted;
(j) FCC LICENSES, ETC: in relation to each FCC License:
(i) Part I of Schedule 7.1(j) lists all FCC Licenses held by License
Subsidiaries other than D-, E- and F-Block Subsidiaries. Part II
of Schedule 7.1(j) lists all FCC Licenses held by License
Subsidiaries of the D-, E- and F-Block Subsidiary Parent. The D-,
E- and F-Block Subsidiary Parent has filed or caused to be filed
applications with the FCC for the transfer of all of the capital
stock of the License Subsidiaries holding all of the FCC Licenses
listed in Part II of Schedule 7.1(j) to the Borrower; and
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(ii) neither it nor any material Necessary Authorization needed to
comply with the provisions of Section 7.1(j)(i) is the subject of
any pending or, to the best of the Borrower's knowledge,
threatened revocation or revocation proceeding;
(k) LITIGATION: there are no actions, suits, proceedings or
investigations of any kind pending or, to the best of the Borrower's
knowledge, threatened against any Loan Party before any court,
tribunal or administrative agency or board (including the FCC) that,
if adversely determined, might, either in any case or in the
aggregate, have a Material Adverse Effect or materially impair the
right of such Loan Party, to carry on business substantially as now
conducted, or result in any substantial and material liability not
adequately covered by insurance, or for which adequate reserves are
not maintained on the balance sheet of such Loan Party, or that
questions the validity of this Agreement or any of the Loan Documents,
or any action taken or to be taken pursuant hereto or thereto;
(l) NO MATERIALLY ADVERSE CONTRACTS, ETC: none of the Loan Parties is:
(i) subject to any charter, corporate or other legal restriction, or
any judgment, decree, order, rule or regulation that has or is
expected in the future to have a Material Adverse Effect; or
(ii) a party to any contract or agreement that has or is expected to
have any Material Adverse Effect;
(m) COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC: none of the Loan Parties
is in violation of any provision of its charter or limited liability
company formation documents, bylaws or any agreement or instrument to
which it may be subject or by which it or any of its Properties may be
bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could
result in the imposition of substantial penalties or have a Material
Adverse Effect;
(n) TAX STATUS: in respect of each Loan Party:
(i) it and each of its Subsidiaries and Affiliates:
(A) has made or filed all federal and state income and all other
tax returns, reports and declarations required by any
jurisdiction to which it is subject or filed extensions
therefor;
(B) has paid all taxes and other governmental assessments and
charges shown or determined to be due on such returns,
reports and declarations, except those being contested in
good faith and by appropriate proceedings; and
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(C) has set aside on its books provisions reasonably adequate
for the payment of all taxes for all elapsed periods
subsequent to the periods to which such returns, reports or
declarations apply; and
(ii) there are no unpaid taxes in any material amount claimed to be
due by the taxing authority of any jurisdiction in respect of it
or any of its Subsidiaries or Affiliates, and no officer of the
Borrower knows of any basis for any such claim;
(o) NO DEFAULT: no Potential Event of Default or Event of Default has
occurred and is continuing.
(p) HOLDING COMPANY AND INVESTMENT COMPANY ACTS: neither any Loan Party
nor any of its Subsidiaries is:
(i) a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of 1935; or
(ii) an "investment company", or an "affiliated company" or a
"principal underwriter" of an "investment company"; or
(iii) an entity "controlled" by an "investment company",
as each such terms are defined in the Investment Company Act of 1940,
as amended;
(q) ABSENCE OF FINANCING STATEMENTS, ETC: except with respect to
Permitted Liens, there is no financing statement, security agreement,
chattel mortgage, real estate mortgage or other document filed or
recorded with any filing records, registry or other public office,
that purports to cover, affect or give notice of any present or
possible future lien on, or security interest in, any assets or
Property of the Borrower or any of its Subsidiaries or any rights
relating thereto;
(r) FCC MATTERS:
(i) except for the filing of tariffs with the FCC, each Loan Party
has duly and timely filed all filings which are required to be
filed by it under the Communications Act, the failure to file
which could reasonably be expected to have a Material Adverse
Effect and is in all material respects in compliance with the
Communications Act, including the rules and regulations of the
FCC applicable to it, the failure to be in compliance with which
could reasonably be expected to have a Material Adverse Effect;
(ii) no failure to pay any Indebtedness owing to the FCC in respect of
any FCC License has occurred, except in accordance with the
orders, rules and regulations of the FCC;
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(s) TARIFFS: no action to change, alter, rescind or otherwise terminate
the tariffs containing service regulations or any rates and charges
for commercial mobile radio services which, if adversely determined,
would have a Material Adverse Effect, is pending or known by the
Borrower to be under consideration;
(t) DISCLOSURE: this Agreement and the statements and documents referred
to herein or delivered to the Administrative Agent, the Arranger
and/or the Lenders by or on behalf of the Borrower pursuant hereto,
taken together, contain no untrue statement of a material fact or fail
to state a material fact which would be necessary to make the
statements (taken as a whole) herein and therein not misleading at
such time;
(u) BURDENSOME OBLIGATIONS:
(i) no Loan Party is a party to or bound by any franchise, agreement,
deed, lease or other instrument, or subject to any legal
restriction which, in the opinion of the management of the
Borrower, is so unusual or burdensome, in the context of its
business, as in the foreseeable future might materially and
adversely affect or impair the revenue or operating cash flow of
such Loan Party, or the ability of such Loan Party to perform the
obligations to be performed by it under the Loan Documents to
which such Loan Party is a party; and
(ii) the Borrower does not presently anticipate that future
expenditures by the Borrower or any of its Subsidiaries needed to
meet the provisions of federal or state statutes, orders, rules
or regulations will be so burdensome as to affect or impair, in a
materially adverse manner, the business or condition, financial
or otherwise, of the Borrower or any of its Subsidiaries;
(v) SOLVENCY: each Loan Party:
(i) is (individually and together with its Subsidiaries); and
(ii) after giving effect to the incurrence of all Indebtedness as and
when contemplated by the Loan Documents will be, Solvent;
(w) SECURITY INTERESTS: the security interests granted under the
Collateral Documents constitute valid, binding and continuing duly
perfected first-priority Liens in and to the Collateral (except for
Permitted Liens that have priority under applicable law or as provided
herein or in the Intercreditor Agreement) in favor of the Collateral
Agent, for the benefit of the Secured Parties;
(x) CERTAIN TRANSACTIONS: in respect of the Borrower:
(i) none of its officers, directors or employees are presently a
party to any transaction with it (other than for services as
employees, officers and
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directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by,
providing for rental of real or personal property to or from, or
otherwise requiring payments to or from any officer, director or
such employee or, to its knowledge, any corporation, partnership,
trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director,
trustee or partner; and
(ii) it:
(A) has delivered a complete and correct copy of the Expense
Allocation Agreement and the Cash Management Agreement to
the Administrative Agent; and
(B) is not a party to any management, operating, license or
other agreement providing for the payment of any amount to
any of its Affiliates, except for the Expense Allocation
Agreement or as permitted under Section 9.1(m);
(y) BUSINESS PLANS: the Approved Full-Term Operating Business Plan and
Approved Annual Operating Business Plan, if any, have been prepared in
all material respects in accordance with GAAP (except for the
treatment of Indebtedness owing to the FCC, which has been reflected
in such plans at historical cost);
(z) EMPLOYEE BENEFIT PLANS:
(i) each Employee Benefit Plan and each Plan has been maintained and
operated in compliance in all material respects with the
provisions of ERISA and, to the extent applicable, the IRC,
including the provisions thereunder respecting prohibited
transactions. The Borrower and each of its Subsidiaries has made
all required contributions to each Employee Benefit Plan and each
Multiemployer Plan. To the extent applicable, the Borrower has
heretofore delivered to the Administrative Agent the most
recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted
under Section 103(d) of ERISA, with respect to each Guaranteed
Pension Plan;
(ii) under each Employee Benefit Plan that is an employee welfare
benefit plan within the meaning of Section 3(1) or Section
3(2)(B) of ERISA, no benefits are due unless the event giving
rise to the benefit entitlement occurs prior to plan termination
(except as required by Title I, Subtitle B, Part 6 of ERISA);
(iii) the Borrower, each of its Subsidiaries and each ERISA Affiliate
may terminate each such Plan at any time (or at any time
subsequent to the expiration of any applicable bargaining
agreement) in the discretion of such Loan Party or such ERISA
Affiliate without liability to any Person;
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(iv) each contribution required to be made to a Guaranteed Pension
Plan, whether required to be made to avoid the incurrence of an
accumulated funding deficiency, the notice or lien provisions of
Section 302(f) of ERISA, or otherwise, has been timely made;
(v) no waiver of minimum funding standards or extension of
amortization periods has been requested or received with respect
to any Guaranteed Pension Plan;
(vi) no liability to the PBGC (other than required insurance premiums,
all of which have been paid) has been incurred by the Borrower,
any of its Subsidiaries or any ERISA Affiliate with respect to
any Guaranteed Pension Plan and there has not been any ERISA
Event, or any other event or condition that presents a material
risk of termination of any Guaranteed Pension Plan by the PBGC.
None of the Borrower, any of its Subsidiaries or any ERISA
Affiliate has instituted or intends to institute proceedings to
terminate a Guaranteed Pension Plan;
(vii) no event requiring notice to the PBGC under Section 302(f)(4)(A)
of ERISA has occurred with respect to any Guaranteed Pension Plan
and no amendment with respect to which security is required under
Section 307 of ERISA has been made or is reasonably expected to
be made to any Guaranteed Pension Plan;
(viii) based on the latest valuation of each Guaranteed Pension Plan
(which in each case occurred within 12 months prior to the date
of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit
liabilities of all such Guaranteed Pension Plans within the
meaning of Section 4001 of ERISA did not exceed the aggregate
value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets
of any Guaranteed Pension Plan with assets in excess of benefit
liabilities;
(ix) none of the Borrower, any of its Subsidiaries or any ERISA
Affiliate has incurred or expects to incur any material liability
(including secondary liability) to any Multiemployer Plan as a
result of a complete or partial withdrawal from such
Multiemployer Plan under Section 4201 of ERISA or as a result of
a sale of assets described in Section 4204 of ERISA. Neither any
Loan Party nor any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or insolvent under and
within the meaning of Section 4241 or Section 4245 of ERISA or
that any Multiemployer Plan intends to terminate or has been
terminated under Section 4041A of ERISA;
(aa) REGULATIONS U AND X: no portion of any Advance shall be used or
obtained for the purpose of purchasing or carrying any "margin
security" or "margin stock" as such terms are used in Regulations U
and X of the Board of Governors of the Federal Reserve System, 12
C.F.R. Parts 221 and 224;
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(bb) ENVIRONMENTAL COMPLIANCE: the Borrower has taken all necessary steps
to investigate the past and present condition and usage of its Real
Estate and the operations conducted thereon and, based upon such
diligent investigation, makes the following representations:
(i) the Borrower and each of its Subsidiaries is in compliance with
all applicable Environmental Laws relating to the operation of
its business and the use and occupancy of any Real Estate;
(ii) there is no pending or to the best of their knowledge threatened
civil or criminal litigation, written notice of violation, formal
administrative proceeding, or investigation, inquiry or
information request by any governmental entity relating to any
Environmental Law involving the Borrower or any of its
Subsidiaries;
(iii) except as set forth on Schedule 7.1(bb)(i), there have been no
releases of any Materials of Environmental Concern into the
environment at any parcel of Real Estate or any facility formerly
or currently owned, operated or controlled by the Borrower or any
of its Subsidiaries;
(iv) with respect to any such releases of any Materials of
Environmental Concern, the Borrower has given all required
notices to government entities;
(v) the Borrower is not aware of any releases of Materials of
Environmental Concern at parcels of Real Estate or facilities
other than those owned, operated or controlled by the Borrower or
any of its Subsidiaries that could reasonably be expected to have
an impact on the Real Estate or facilities owned, operated or
controlled by the Borrower or any of its Subsidiaries.
(vi) set forth in Schedule 7.1(bb)(i) is a list of all environmental
reports, investigations and audits relating to premises currently
or previously owned or operated by the Borrower and its
Subsidiaries (whether conducted by or on behalf of the Borrower,
any of its Subsidiaries or a third party, and whether done at the
initiative of the Borrower or any of its Subsidiaries or directed
by a governmental entity or other third party) which the Borrower
or any of its Subsidiaries has in its possession or to which it
has access, and complete and accurate copies of each such report,
or the results of each such investigation or audit, have been
provided to the Administrative Agent;
(vii) the Borrower and each of its Subsidiaries has filed all reports
and returns required to be filed by such Person under any
Environmental Laws;
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(viii) the Borrower and each of its Subsidiaries has obtained and is in
compliance with all licenses, permits, registrations,
certificates, consents, approvals or authorizations
(collectively, "Environmental Permits") required by all
---------------------
applicable Environmental Laws;
(ix) no event has occurred and is continuing that requires, or after
notice or lapse of time or both would require, any modification
or termination of any Environmental Permit;
(x) neither the Borrower nor any of its Subsidiaries (A) has received
any notice asserting the absence of any Environmental Permit or
(B) has knowledge of any environmental law proposed or under
consideration, which, if effective, could have a Material Adverse
Effect;
(xi) neither the Borrower nor any of its Subsidiaries, nor any of the
Real Estate, is subject to any applicable Environmental Laws
requiring the performance of site assessments for Materials of
Environmental Concern, or the removal or remediation of Materials
of Environmental Concern, or the giving of notice to any
governmental agency or the recording or delivery to other Persons
of an environmental disclosure document or statement by virtue of
the transactions set forth herein and contemplated hereby, or as
a condition to the effectiveness of any transactions contemplated
hereby;
(cc) JOINT VENTURES, ETC: except as set forth in Schedule 7.1(cc), the
Borrower is not engaged in any joint venture or partnership with any
other Person, and each joint venture or partnership listed in such
Schedule is a Qualified Joint Venture;
(dd) MATERIAL CONTRACTS: as of the date of this Agreement, neither the
Borrower nor any of its Subsidiaries is a party to any Material
Contract or any agreement with any director, officer or employee,
except as set forth in Schedule 7.1(dd);
(ee) OWNERSHIP: as at the date of this Agreement, the chart set forth in
Schedule 7.1(ee)(i) represents as of the date hereof a true and
accurate representation of the ownership of the Grandparent and each
of its Subsidiaries;
(ff) COMMISSIONING DATE: the First Commissioning Date was December 7,
1997, and
(gg) REPRESENTATIONS IN OTHER LOAN DOCUMENTS: each of the representations
by any Loan Party in any of the other Loan Documents is true.
SECTION 7.2 REPETITION.
The representations and warranties in Section 7.1 shall survive the execution
hereof and the making of each Advance under this Agreement and shall be deemed
to be repeated as of the date on which
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each Advance is made and on the first day of each Interest Period, by reference
to the facts and circumstances then existing and:
(a) except in the case of any representation and warranty expressed to be
made on the date of the Agreement, after taking into account
transactions permitted by this Agreement; and
(b) in each case, to the extent to which any such representation and
warranty relates expressly to an earlier date.
ARTICLE 8. AFFIRMATIVE COVENANTS OF THE BORROWER
SECTION 8.1 GENERAL.
The Borrower covenants and agrees that, so long as any Advance or any interest,
fees or expenses are outstanding or any Lender has any Commitment hereunder it:
(a) MAINTENANCE OFFICE: shall maintain, and shall cause each of its
Subsidiaries to maintain, its chief executive office at 3 Metro
Center, Bethesda, MD 20814 (except in the case of an Operating
Subsidiary, at 16 Wing Drive, Cedar Knolls, NJ 07927), except that
the Borrower or any such Subsidiary may change its chief executive
office on not less than 30 days' advance written notice to the
Administrative Agent and after taking all such action as may be
necessary or appropriate or requested by the Collateral Agent or the
Administrative Agent to continue the perfection of the Collateral
Agent's security interest in the Collateral;
(b) RECORDS AND ACCOUNTS: shall cause each of its Subsidiaries to:
(i) keep true and accurate records and books of account in which
full, true and correct entries shall be made in accordance with
GAAP, and
(ii) maintain adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and
amortization of its Properties, contingencies and other reserves;
(c) CORPORATE EXISTENCE; MAINTENANCE OF LICENSES: shall:
(i) do or cause to be done, and shall cause each of its Subsidiaries
to do or cause to be done, all things necessary to:
(A) preserve and keep in full force and effect its corporate or
limited liability company (as applicable) existence;
(B) maintain in full force and effect:
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(a) each FCC License with respect to the BTAs specified in
Parts I and II of Schedule 7.1(j) (other than any such
FCC License that has been previously sold or
transferred in accordance with this Agreement or loss
of a C-Block FCC License on account of a C-Block
General License Revocation Event) and any other FCC
Licenses from time to time held by any License
Subsidiary and cause each License Subsidiary at all
times to own each FCC License listed in Schedule 7.1(j)
(other than any such FCC License that has been
previously sold or transferred in accordance with this
Agreement or loss of a C-Block FCC License on account
of a C-Block General License Revocation Event), free
and clear of any Lien of any kind, other than any Lien
permitted pursuant to paragraph (g) of the definition
of Permitted Liens;
(b) with respect to the construction, installation and
development of facilities for the Permitted BTAs, all
material Necessary Authorizations appropriate to the
level of development theretofore achieved and
sufficient to avoid noncompliance with the then
applicable minimum build-out requirements under the
License for such BTAs; and
(c) with respect to the operation of those portions of
Permitted BTAs the development of which has theretofore
been completed, all material Licenses, copyrights,
patents, franchises, Necessary Authorizations and other
rights as are necessary and sufficient to operate such
completed portions; and
(C) use, and cause the Grandparent to use, its best efforts to
cause the ownership of all Stock of License Subsidiaries
holding the FCC Licenses for the West Palm Beach BTA and
such other BTAs listed in Part II of Schedule 7.1(j) to be
transferred to the Borrower promptly after the date hereof,
it being understood that such transfer requires the FCC's
consent;
(D) at all times perform and observe all covenants and
conditions on its part to be performed and observed under
FCC rules and regulations or otherwise with respect thereto
with respect to the FCC Licenses held by License
Subsidiaries and not cause or, except for a C-Block General
License Revocation Event or a Proposed C-Block General
License Revocation Event, permit to exist any grounds for
the FCC to revoke or suspend or not to renew such License;
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(d) MAINTENANCE OF PROPERTIES: shall do or cause to be done, and shall
cause each of its Subsidiaries to:
(i) do or cause to be done, all things necessary to preserve and keep
in full force and effect its material franchises, employment
contracts and permits;
(ii) cause all of its Properties used or useful in the conduct of its
business to be maintained and kept in good condition, repair and
working order (ordinary wear and tear excepted) and supplied with
all necessary equipment;
(iii) cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of
the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times;
(iv) continue to engage primarily in the businesses now conducted by
it and in related businesses; and
(v) continue in full force and effect all authorizations and
approvals required to conduct the businesses now conducted by it
as appropriate to the then level of construction, development and
operation of PCS Systems covered by FCC Licenses held by License
Subsidiaries;
provided that nothing in this Section 8.1(d) shall prevent the
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Borrower or any of its Subsidiaries from discontinuing the operation
and maintenance of any of its Properties if such discontinuance is, in
the judgment of the Borrower or such Subsidiary, desirable in the
conduct of its business and would not have a Material Adverse Effect;
(e) INSURANCE: shall obtain and maintain, and shall cause each of its
Subsidiaries to obtain and maintain, insurance with respect to its
properties and business with insurers that hold an A.M. Best rating of
"A" or better, which insurance coverage shall:
(i) include, as a minimum, the types of policies and respective
limits as reflected in Section 13 of each Subsidiary Security
Agreement;
(ii) with respect to all liability insurance, name the Administrative
Agent and the Collateral Agent as additional insured;
(iii) with respect to casualty insurance, name the Collateral Agent as
loss payee as its interest may appear; and
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(iv) provide that the insurer will give the Administrative Agent and
the Collateral Agent at least 30-days' prior written notice of
the cancellation or any material change in the coverage,
aggregate limits or any other provision of such insurance; and
(f) TAXES: shall:
(i) subject to clause (f)(ii) duly pay and discharge, and cause each
of its Subsidiaries to duly pay and discharge, before the same
shall become overdue, all taxes, assessments, levies and other
governmental charges imposed upon it and its Real Estate, sales
and activities, or any part thereof, or upon the income or
profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a lien or charge upon
any of its Property;
(ii) not be required to pay the tax, assessment, charge, levy or claim
referred to in clause (f)(i) if the validity or amount thereof
shall currently be contested in good faith by appropriate
proceedings and if the Borrower or any of its Subsidiaries has
set aside on its books adequate reserves with respect thereto;
and pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any
lien that may have attached as security for such unpaid taxes;
(g) INSPECTION OF PROPERTIES AND BOOKS:
(i) shall permit, and shall cause each of its Subsidiaries to permit,
the Administrative Agent, the Lenders and their other designated
representatives to visit and inspect any of the Properties of the
Borrower or such Subsidiary, to examine the books of account of
the Borrower or such Subsidiary (and to make copies thereof and
extracts therefrom), and to discuss the affairs, finances and
accounts of the Borrower or such Subsidiary with, and to be
advised as to the same by, its officers, all at such reasonable
times and intervals as the Administrative Agent or any Lender may
reasonably request; provided that the Administrative Agent and
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each Lender shall use reasonable commercial efforts not to
interfere with the business of the Borrower or any of its
Subsidiaries;
(ii) authorizes the Administrative Agent and each Lender to
communicate directly with the independent certified public
accountants of the Borrower or any of its Subsidiaries and
authorizes such accountants to disclose to the Administrative
Agent and the Lenders any and all financial statements and other
supporting financial documents and schedules including copies of
any management letter with respect to the business, financial
condition and other affairs of the Borrower and its Subsidiaries;
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(iii) shall, at the reasonable request of the Administrative Agent, the
Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this clause
(g)(iii); provided that the Administrative Agent and the Lenders
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shall use commercially reasonable efforts to coordinate the
communications and disclosures to and from the accountants and
Administrative Agent and the Lenders;
(h) COMPLIANCE WITH LAWS, CONTRACTS, FCC LICENSES AND PERMITS: shall:
(i) comply, and shall cause each of its Subsidiaries to comply, in
all material respects with:
(A) the applicable laws, rules, regulations and orders wherever
its business is conducted, including without limitation
compliance with all Environmental Laws, all Environmental
Permits, ERISA, the IRC, the Communications Act and all FCC
rules and regulations (including without limitation
compliance with FCC rules and regulations relating to
maintaining the status of the License Subsidiaries as
designated entities and small businesses);
(B) the provisions of its charter documents and by-laws;
(C) all Material Contracts to which it or any of its
Subsidiaries is a party and by which it or any of its
Subsidiaries or any of its or their Properties may be bound;
(D) all obligations with respect to any Employee Benefit Plan or
Multiemployer Plan;
(E) all applicable decrees, orders, and judgments; and
(ii) if any authorization, consent, approval, permit or license from
any officer, agency or instrumentality of any government which
becomes necessary or required in order that the Borrower or any
of its Subsidiaries may fulfill any of the Borrower's or such
Subsidiary's obligations hereunder or any of the other Loan
Documents to which the Borrower or any of its Subsidiaries is a
party, immediately take, or shall cause such Subsidiary
immediately to take, all reasonable steps within the power of the
Borrower or such Subsidiary to obtain such authorization,
consent, approval, permit or license and furnish the
Administrative Agent evidence thereof;
(i) FURTHER ASSURANCES: shall:
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(i) cooperate, and shall cause each of its Subsidiaries to cooperate,
with the Lenders and the Administrative Agent, and shall execute
and pay, and shall cause each of its Subsidiaries to execute and
pay, as applicable, for the filing of all such further
instruments and documents, including, without limitation, such
Uniform Commercial Code financing statements and other security
documents as the Required Lenders, the Collateral Agent or the
Administrative Agent shall reasonably deem appropriate at any
time in order to effectuate the security interests to the
Collateral Agent and to carry out to their satisfaction the
transactions contemplated by the Loan Documents; and
(ii) notify the Administrative Agent if at any time the granting of a
Lien on the FCC License held by any License Subsidiary, or on any
proceeds of any sale or disposition thereof, shall not violate
then-applicable FCC regulations, so and shall, at its expense,
promptly cause such License Subsidiary to execute and deliver any
and all such instruments, documents and opinions of counsel and
take such other action as either Agent may deem desirable in
order to grant in favor of the Collateral Agent on behalf of the
Secured Parties a Lien on such FCC License and/or the proceeds
thereof;
(j) AUTHORIZATION FROM LANDLORD/MORTGAGEE, ETC: shall request that any
landlord, mortgagee and easement grantor of the Borrower or any of its
Subsidiaries agree to give the Collateral Agent and the Administrative
Agent, on a best-efforts basis, notice of any default by the Borrower
or such Subsidiary under the terms or conditions of any agreement
between the Borrower and/or such Subsidiary and any landlord,
mortgagee of any such landlord or easement grantor, and allow the
Collateral Agent to inspect or remove Collateral after the occurrence
and continuance of an Event of Default;
(k) ATTORNMENT AND RECOGNITION AGREEMENTS: shall:
(i) obtain, and shall cause each of its Subsidiaries to obtain, all
attornment and recognition agreements from any landlord or
landlord's mortgagee of Real Estate leased or owned by the
Borrower or any of its Subsidiaries upon which any equipment with
an aggregate purchase price in excess of $1,000,000 is stored or
located, in form and substance reasonably satisfactory to the
Administrative Agent; and
(ii) shall use its best efforts to obtain all attornment and
recognition agreements from any landlord or landlord's mortgagee
of Real Estate leased or owned by the Borrower or any of its
Subsidiaries upon which all other Collateral not covered by
clause (k)(i) above is stored or located, in form and substance
reasonably satisfactory to Required Lenders;
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(l) EXPENSE ALLOCATION AGREEMENT: shall comply with the terms of the
Expense Allocation Agreement and not consent to any waiver,
modification or amendment thereto;
(m) MAINTENANCE OF SUBSIDIARY: shall cause Operations to remain a
Subsidiary at all times at which this Agreement is in force and
effect;
(n) MORTGAGE LIENS: shall, if the Borrower or any of its Subsidiaries
acquire any Real Estate, the acquisition of which is not financed in
accordance with paragraph (d)(ii)(B) of the definition of "Permitted
Indebtedness" grant, or cause such Subsidiary to grant, to the
Collateral Agent on behalf of the Secured Parties a first-mortgage
Lien on such Real Estate in form and substance satisfactory to the
Required Lenders provided that such Lien on any such Real Estate shall
provide that it shall be released or subordinated (as the case may be)
upon the incurrence of any Indebtedness pursuant to paragraph
(d)(ii)(B) of the definition of "Permitted Indebtedness" that is
secured by a Lien on such Real Estate referred to in paragraph (d)(ii)
of the definition of "Permitted Liens".
(o) NEW SUBSIDIARIES: shall upon the creation of any Subsidiary not in
existence on the date hereof and at its expense:
(i) duly execute and deliver, or cause such Subsidiary to duly
execute and deliver, to the Administrative Agent and the
Collateral Agent a Subsidiary Guaranty in respect of such
Subsidiary (with such changes thereto as either Agent may
reasonably request);
(ii) duly execute and deliver, or cause such Subsidiary to duly
execute and deliver, to the Administrative Agent and the
Collateral Agent, a Subsidiary Security Agreement (with such
changes thereto as the Administrative Agent may reasonably
request) and such other mortgages, pledges, assignments and other
security agreements, in form and substance reasonably
satisfactory to the Administrative Agent, securing payment of all
of the obligations of such Subsidiary under its Guaranty and the
obligations of the Loan Parties under the Loan Documents and
constituting Liens on all Collateral described therein; and
pledge, or cause to be pledged, to the Collateral Agent on behalf
of the Secured Parties, all authorized, issued and outstanding
capital stock of such Subsidiary; and execute and/or deliver to
the Administrative Agent each other document or instrument
required to be delivered in connection with the execution and
delivery of such Subsidiary Security Agreement pursuant to
Section 10.1(q)(1) through (4);
(iii) take whatever action (including without limitation the recording
of mortgages, the filing of Uniform Commercial Code financing
statements, the giving of notices and the endorsement of notices
on title documents) may be necessary
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or advisable in the opinion of either Agent to vest in the
Collateral Agent (or in any representative of the Collateral
Agent designated by it) valid and subsisting Liens on the
properties purported to be subject to the security agreements
delivered pursuant to this Section 8.1(o), enforceable against
all third parties in accordance with their terms;
(iv) deliver to the Administrative Agent a signed copy of favorable
opinions, addressed to the Agents and the Lenders, of counsel for
the Borrower acceptable to the Administrative Agent as to such
matters relating to such Subsidiary as either Agent may
reasonably request; and
(v) at any time and from time to time, promptly execute and deliver
any and all further instruments and documents and take all such
other action as the Administrative Agent may deem desirable in
obtaining the full benefits of, or in preserving the Liens of,
each security agreement delivered pursuant to this Section 8.1(o)
and mortgages and other agreements and instruments entered into
by such Subsidiary.
(p) D-, E- AND F- BLOCK SUBSIDIARIES: while any D-, E- and F-Block
Subsidiary shall be a Guarantor, the Borrower will cause such Persons
to perform and observe each covenant and condition hereunder
applicable to, and as if such Person were, a Subsidiary of the
Borrower.
SECTION 8.2 REPORTING REQUIREMENTS; NOTICES.
The Borrower shall deliver or cause to be delivered to the Administrative Agent
on behalf of the Lenders the following (in a sufficient number of copies to
permit distribution to each Lender):
(a) ANNUAL OPERATING BUSINESS PLAN: no later than 15 days prior to the
end of each fiscal year of the Borrower and until the first fiscal
year ending after the date on which EBITDA is greater than zero for
two successive Fiscal Quarters, a proposed annual operating business
plan containing the statements listed in items (i) through (vi) in
this paragraph and the exhibits contained in the Approved Full-Term
Operating Business Plan delivered pursuant to Section 10.1(p) for the
next-succeeding fiscal year, which annual operating business plan
shall contain:
(i) internally prepared statements of income and expense of the
Borrower and its Subsidiaries in reasonable detail for the
applicable period prepared in all material aspects in accordance
with GAAP (except for the absence of footnotes);
(ii) a schedule of all Capital Expenditures of the Borrower and its
Subsidiaries estimated to be made during the period;
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(iii) a statement of the amounts and times by which the Borrower and
its Subsidiaries need to raise additional capital to meet their
obligations when due during the period;
(iv) projected balance sheets of the Borrower and its Subsidiaries;
(v) projected cash flow statements of the Borrower and its
Subsidiaries; and
(vi) a statement listing all assumptions which formed the basis for
(i) through (v),
each together with supporting schedules in sufficient detail as needed
and in all material aspects in accordance with the Approved Full-Term
Operating Business Plan delivered pursuant to Section 10.1(p) and on a
consistent basis;
(b) VARIANCES REPORT: no later than August 14 of each fiscal year of the
Borrower, beginning with its 1998 fiscal year, a report, certified as
true and correct by the chief or principal financial or accounting
officer of the Borrower, that shows in reasonable detail, variances,
if any, between the actual operating performance of the Borrower and
its Subsidiaries and what was estimated for the first six months of
such fiscal year in the Approved Annual Operating Business Plan for
such fiscal year (or the Approved Full-Term Operating Business Plan if
the Required Lenders have not approved a plan delivered pursuant to
Section 8.2(a) with respect to such fiscal year) and explains in
reasonable detail in form satisfactory to the Required Lenders the
reasons for the discrepancies between them, if any;
(c) UNAUDITED QUARTERLY ACCOUNTS: as soon as practicable, but in any
event not later than 50 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, copies of the
internally prepared unaudited Consolidated balance sheets of the
Borrower and its Subsidiaries as of the end of such quarter and
related Consolidated statements of income and Consolidated statement
of cash flows of the Borrower and its Subsidiaries for the portion of
the Borrower's fiscal year then elapsed all in reasonable detail and
each setting forth in comparative form:
(i) the figures for the prior year's corresponding Fiscal Quarter,
and
(ii) so long as the Borrower is required to deliver an annual
operating business plan pursuant to Section 8.2(a), any variances
from the Approved Annual Operating Business Plan (or the Approved
Full-Term Operating Business Plan, if the Required Lenders have
not approved a plan delivered pursuant to Section 8.2(a) with
respect to such fiscal year), if any, prepared in all material
aspects in accordance with GAAP, together with a certification by
the principal or chief financial or accounting officer of the
Borrower that the information contained in such financial
statements fairly presents the financial
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position of the Borrower and its Subsidiaries on the date thereof
(subject to year-end adjustments);
(d) ANNUAL AUDITED ACCOUNTS: as soon as practicable, but in any event no
later than 90 days after the end of each fiscal year of the Borrower:
(i) the audited Consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such year,
(ii) the related audited Consolidated statements of income and the
audited Consolidated statement of cash flows of the Borrower and
its Subsidiaries for such year prepared in accordance with GAAP,
(iii) so long as the Borrower is required to deliver an annual
operating business plan pursuant to Section 8.2(a), a separate
variance analysis setting forth in comparative form the figures
for the previous fiscal year and any variances from the
applicable period of the Approved Annual Operating Business Plan
(or the Approved Full-Term Operating Business Plan, if the
Required Lenders have not approved a plan delivered pursuant to
Section 8.2(a) with respect to such fiscal year) in reasonable
detail; and
(iv) in respect of such annual accounts, a management letter from the
Borrower's accountants (only to the extent otherwise obtained by
the Borrower);
(e) AUDITOR'S STATEMENT: together with each such balance sheet, statement
of income and statement of cash flows furnished pursuant to clause (d)
above, a certified audit report of a nationally recognized independent
certified public accounting firm satisfactory to the Administrative
Agent, which report shall contain an unqualified opinion of such
accounting firm, and an "agreed-upon procedures" report pursuant to
which the accountants:
(i) review the Borrower's statement that the Borrower is in
compliance with the provisions of the Expense Allocation
Agreement,
(ii) perform the agreed upon review procedures applicable thereto, and
(iii) confirm that in examining the financial statements of the
Borrower and its Subsidiaries they have not become aware of any
Potential Event of Default or Event of Default with respect to
the Expense Allocation Agreement, or, if such accountants shall
have obtained knowledge of any then existing Event of Default or
Potential Event of Default they shall disclose in such report any
such Event of Default or Potential Event of Default;
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provided that such accountants shall not be liable to the Lenders for
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failure to obtain knowledge of any Event of Default or Potential Event
of Default;
(f) STATEMENTS AS TO COMPUTATIONS: simultaneously with the delivery of the
financial statements referred to in subsections (c) and (d) above, a
statement certified by the principal or chief financial or accounting
officer of the Borrower, in form and substance satisfactory to the
Administrative Agent, setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Sections 8.3 and
9.1(e), with respect to the Fiscal Quarter or fiscal year, as the case
may be, relating to the financial statements then being delivered;
(g) OPERATION REPORTS: within 50 days after the end of each Fiscal Quarter
of the Borrower, a report on:
(i) with respect to each Operating Subsidiary:
(A) the number of cell sites constructed and cell sites where
equipment with an aggregate purchase price in excess of
$1,000,000 is located;
(B) the total number of customers; and
(C) the average revenue per subscriber;
(ii) payments by the Borrower or any of its Subsidiaries to the
Grandparent or any of its Affiliates (other than payments by the
Borrower or any of its Subsidiaries to one another), or to any
Subsidiary of the Borrower that is not a Subsidiary, whether as
dividends, payments under any management, service or tax-
allocation agreement or otherwise, and
(iii) equity contributions to the Borrower, the Persons providing the
same and any issuance or sale of shares of Stock or other equity
interests in the Borrower or any of its Subsidiaries,
during such fiscal quarter, together with a report showing variances
from the estimates previously provided to Administrative Agent and
each Lender in the Annual Approved Operating Business Plan (or the
Approved Full-Term Operating Business Plan, if the Required Lenders
have not approved a plan delivered pursuant to Section 8.2(a) with
respect to such fiscal year), along with an explanation of
discrepancies between the actual numbers and the estimated numbers;
(h) SHAREHOLDER AND SEC INFORMATION: within three Business Days after the
filing or mailing thereof, copies of all:
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(i) reports, information or materials filed with the Securities and
Exchange Commission by the Borrower or any of its Subsidiaries or
the Grandparent (including any Forms 10-K and 10-Q);
(ii) information sent to the stockholders of the Borrower or lenders
to the Borrower (exclusive of proprietary information); or
(iii) information and reports directly and materially related to the
Borrower and its Subsidiaries that the Grandparent would be
required to file with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, if the
Grandparent were a public company subject to the reporting
requirements of such Act; provided that, if the information or
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reports covered by this clause (iii) contain proprietary
information, the Borrower shall not be obligated to provide the
proprietary information hereunder unless:
(A) the Person that is the source of the information or reports
is a public company, and
(B) such Person would then be required to file such proprietary
information with the Securities and Exchange Commission;
(i) ACCOUNTS RECEIVABLE: within 50 days after the end of each fiscal
quarter of the Borrower, an accounts-receivable-aging report in
respect of each Operating Subsidiary;
(j) DEFAULTS: within three Business Days after any director or officer of
the Borrower shall have knowledge of the occurrence and continuance
thereof, written notice of the occurrence and continuance of a
Potential Event of Default or Event of Default, together with a
statement of what action the Borrower is taking or proposes to take
with respect thereto. If any Person shall give any notice or take any
other action in respect of a claimed default (whether or not
constituting a Potential Event of Default or Event of Default) under
this Agreement or any other note, evidence of indebtedness, indenture
or other obligation to which or with respect to which the Borrower or
any of its Subsidiaries is a party or obligor, whether as principal,
guarantor, surety or otherwise, which could result in the party to
whom such indebtedness is owed having the right under its governing
documents to accelerate such indebtedness, and such acceleration would
have a Material Adverse Effect, the Borrower shall forthwith give
written notice thereof to the Administrative Agent, describing the
notice or action and the nature of the claimed default;
(k) ENVIRONMENTAL MATTERS; LITIGATION: as soon as possible, and in any
event within 10 Business Days:
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(i) after making any such report, written notice of any violation of
any Environmental Law that the Borrower reports in writing or is
reportable by such Person in writing (or for which any written
report supplemental to any oral report is made) to any federal,
state or local environmental agency; and
(ii) after the Borrower shall become aware thereof, written notice of
any inquiry, proceeding, investigation, or other action,
including a notice from any agency of potential environmental
liability, or any federal, state or local environmental agency or
board, that, has the potential to materially affect the assets,
liabilities, financial conditions or operations of the Borrower
or any of its Subsidiaries or the security interests for the
benefit of the Secured Parties pursuant to any of the Collateral
Documents;
(l) ERISA EVENTS: as soon as possible, and in any event within 10 days
after the Borrower or any ERISA Affiliate knows or has reason to know
or believes that any ERISA Affiliate knows or has reason to know or
believes that any ERISA Event has occurred, a statement of the
principal or chief financial or accounting officer of the Borrower or
such ERISA Affiliate describing such ERISA Event, together with any
correspondence with, or filings made with, the PBGC or Department of
Labor, and the action, if any, which the Borrower or such ERISA
Affiliate proposes to take with respect thereto;
(m) ERISA DOCUMENTS: promptly after:
(i) filing the same with the Department of Labor or Internal Revenue
Service, (A) a copy of its initial actuarial statement required
to be submitted under Section 103(d) of ERISA and Annual Report,
Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan, and (B) a notice of all subsequent
filings (with copies to be provided upon request of the
Administrative Agent),
(ii) receipt or dispatch thereof, a copy of any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan
under Section 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of
ERISA, or in respect of a Multiemployer Plan, under Section
4041A, 4202, 4219, 4242 or 4245 of ERISA, and
(iii) becoming aware of the occurrence thereof, notice of (A) any
transaction that could result in the imposition of a penalty
under Section 502(i) of ERISA or an excise tax under Section 4975
against the Borrower, any of its Subsidiaries or an ERISA
Affiliate; (B) any partial or complete withdrawal from a
Multiemployer Plan by the Borrower, any of its Subsidiaries or an
ERISA Affiliate; (C) a failure by the Borrower, any of its
Subsidiaries or an ERISA Affiliate to make a payment to a Plan
required to avoid imposition of a lien
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under Section 302(f) of ERISA; (D) the adoption of an amendment
to a Guaranteed Pension Plan requiring the provision of security
under Section 307 of ERISA; or (E) any change in the actuarial
assumptions or funding methods used for any Guaranteed Pension
Plan, where the effect of such change is to materially increase
the unfunded benefit liability or materially reduce the
obligation to make periodic contributions;
(n) DEFENSES TO CLAIMS ON THE COLLATERAL: within three Business Days
after becoming aware of any setoff of any claims (including, with
respect to the Real Estate, environmental claims), withholdings or
other defenses to which any of the Collateral, or the Collateral
Agent's, the Administrative Agent's or the Lenders' rights with
respect to the Collateral, are subject, written notice thereof;
(o) LITIGATION: within 10 Business Days after becoming aware of written
notice of:
(i) any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting the Borrower or any
of its Subsidiaries or to which the Borrower or any of its
Subsidiaries is or becomes a party that could reasonably be
expected to have a Material Adverse Effect (which notice shall
include a statement as to the nature and status of the
proceedings), or
(ii) any judgment not covered by insurance, final or otherwise,
against the Borrower or any of its Subsidiaries in an amount in
excess of $1,000,000.
(p) FCC: within three Business Days after its receipt thereof, copies of
all material notices and correspondence received from or sent to the
FCC relating to any FCC License listed on Schedule 7.1(j);
(q) MISCELLANEOUS DETAILS: not later than 30 days prior to the occurrence
thereof, written notice to the Administrative Agent of a change in (i)
the business name or corporate name of any of the Loan Parties, (ii)
the location of any of the Collateral subject to the relevant
Collateral Documents or (iii) the chief executive office or other
locations of each Loan Party or the location where the books and
records of the Borrower or any of its Subsidiaries are kept;
(r) DETAILS OF INDEBTEDNESS: within 50 Business Days after the end of each
fiscal quarter of the Borrower, a report showing the respective
aggregate principal amounts of all Indebtedness outstanding as of the
last day of such fiscal quarter under each Permitted Loan Agreement;
(s) NEW SCHEDULES: as soon as available and in any event within 30 days
after the end of each fiscal year of the Borrower and when necessary
in connection with a repetition of any representation or warranty
referring thereto in connection with any Disbursement Claim, a report
supplementing the Schedules hereto, including without
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limitation (i) new Subsidiaries of the Borrower and ownership of the
Stock thereof, (ii) any change in the designation of any BTA as set
forth in, or any addition, deletion or other change to, Schedule 1.1
and (iii) a description of such other changes in the information
included in such Schedules as may be necessary for such Schedules to
be accurate and complete in all material respects;
(t) LICENSE EVENTS: within 10 Business Days following the occurrence
thereof, written notice of any FCC License Transfer or C-Block General
License Revocation Event, specifying the affected FCC License or
geographic area, as applicable, and setting forth in reasonable detail
the terms of such disposition;
(u) QUARTERLY COMPLIANCE CERTIFICATE: with each set of quarterly unaudited
accounts delivered pursuant to Section 8.2(c), a certificate in the
form of Exhibit B setting forth the calculations for each financial
ratio referred to in Section 8.3 for the Fiscal Quarter to which such
unaudited accounts relate.
(v) INSURANCE:
(i) within 30 days after the Closing Date, deliver to the
Administrative Agent certified copies by the applicable
insurer(s) of all policies evidencing insurance described in the
certificates delivered pursuant to Section 10.1(f) below, which
shall contain provisions naming the Collateral Agent as an
additional insured and loss payee on behalf of the Lenders as its
interests may appear, and providing for 30-days' prior written
notice to Administrative Agent and the Collateral Agent of
cancellation or diminishment.
(ii) deliver to the Administrative Agent and the Collateral Agent, as
required by Section 10.1(f), no later than March 31 in each
calendar year and otherwise promptly on request by the
Administrative Agent or the Collateral Agent, certificate(s) of
insurance reflecting the requirements of Section 8.1(e), each
Security Agreement and each Mortgage, and setting forth any
deductibles applicable to any insurance coverage;
(w) COMMISSIONING: within 15 Business Days of its occurrence, to advise
the Administrative Agent when the Final Commissioning Date has
occurred unless such date occurs after the date which is four Business
Days prior to December 31, 2000;
(x) OTHER INFORMATION: such other information concerning the business
operations or financial condition of any Loan Party or any of its
Subsidiaries as the Administrative Agent or any Lender shall from time
to time reasonably request.
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SECTION 8.3 FINANCIAL COVENANTS OF THE BORROWER.
So long as any Advance or other obligation of the Borrower hereunder is
outstanding or any Lender has any Commitment, the Borrower covenants that:
(a) REVENUE: for each Fiscal Quarter, prior to the first Fiscal Quarter
in which EBITDA shall have exceeded zero for two successive fiscal
quarters, Revenue will be not less than the applicable amount shown on
Schedule 8.3(a) with respect to such Fiscal Quarter;
(b) FIXED CHARGE COVERAGE RATIO: it will maintain, with respect to each
Fiscal Quarter, beginning with the Fiscal Quarter ending on December
31, 2001, the ratio of:
(i) Adjusted EBITDA, to:
(ii) the sum of
(A) the aggregate scheduled amount of principal and interest
payable in cash in respect of Indebtedness of the Borrower
and its Subsidiaries (including, without limitation, in
respect of the Advances, payments under the Permitted Loan
Agreements, Capitalized Leases and Indebtedness owing to the
FCC) to Persons other than the Borrower or any of its
Subsidiaries, plus
(B) dividends paid by the Borrower pursuant to Section 9.1(e),
plus
(C) Capital Expenditures by the Borrower and its Subsidiaries,
plus
(D) cash income taxes paid by the Borrower and its Subsidiaries,
plus
(E) mandatory prepayments of the Advances by the Borrower
pursuant to Section 5.2(a) or, to the extent resulting from
an FCC License Transfer described in Section 9.1(f)(iii)(C)
and mandatory prepayments by the Borrower pursuant to any
similar provision contained in the other Permitted Loan
Agreements, plus
(F) any fees paid pursuant to Section 3.1 (to the extent not
immediately reimbursed by Ericsson), Section 2.03 of the
Ericsson Loan Agreement and any other similar fees paid in
respect of any other Indebtedness by the Borrower or any of
its Subsidiaries,
in each case in respect of such Fiscal Quarter and the three Fiscal
Quarters immediately preceding such Fiscal Quarter, of not less than
1.1:1
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(c) LEVERAGE RATIO (ADJUSTED EBITDA): it will maintain, with respect to
each Fiscal Quarter beginning with the Fiscal Quarter ending on
December 31, 2000, a ratio of Consolidated Indebtedness (other than
Subordinated Indebtedness) of the Borrower and its Subsidiaries as of
the last day of such Fiscal Quarter to Adjusted EBITDA of the Borrower
for such Fiscal Quarter and the three Fiscal Quarters immediately
preceding such Fiscal Quarter of not more than the ratio set forth in
Schedule 8.3(c);
(d) LEVERAGE RATIO (EBITDA): it will maintain, with respect to each Fiscal
Quarter beginning with the Fiscal Quarter ending on December 31, 2002,
a ratio of Consolidated Indebtedness (other than Subordinated
Indebtedness) of the Borrower and its Subsidiaries as of the last day
of such Fiscal Quarter to EBITDA for such Fiscal Quarter and the three
Fiscal Quarters immediately preceding such Fiscal Quarter of not more
than the ratio set forth in Schedule 8.3(d);
(e) DSCR (ADJUSTED EBITDA/DEBT SERVICE): it will maintain, with respect to
each Fiscal Quarter beginning with the Fiscal Quarter ending on
December 31, 2000, a ratio for such Fiscal Quarter and the three
Fiscal Quarters immediately preceding such Fiscal Quarter of Adjusted
EBITDA to Debt Service of not less than 1.2:1.0; and
(f) DSCR (EBITDA/DEBT SERVICE): it will maintain, with respect to each
Fiscal Quarter beginning with the Fiscal Quarter ending on December
31, 2003, a ratio for such Fiscal Quarter and the three Fiscal
Quarters immediately preceding such Fiscal Quarter of EBITDA to Debt
Service of not less than 1.2:1.0.
ARTICLE 9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER
SECTION 9.1 NEGATIVE PLEDGE.
The Borrower covenants and agrees that, so long as any Advance, fees or expenses
are outstanding hereunder or any Lender has any Commitment hereunder it will
not, or permit any of its Subsidiaries to:
(a) RESTRICTIONS ON INDEBTEDNESS:
(i) create, incur, assume, guarantee or suffer to exist, contingently
or otherwise, any Indebtedness other than (without duplication)
Permitted Indebtedness; and
(ii) Notwithstanding paragraphs (a) through (d) of the definition of
"Permitted Indebtedness", the Borrower shall not and shall not
permit any of its Subsidiaries to create, incur, assume,
guarantee or suffer to exist any Indebtedness on any date if the
aggregate principal amount of all Indebtedness of the Borrower
and its Subsidiaries (other than (x) any Indebtedness owing to
the FCC and without duplication of Indebtedness permitted
hereunder and
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Guaranties with respect to such Indebtedness and (y) any
Subordinated Indebtedness owing to the Grandparent or any of its
Subsidiaries) would exceed $35.00, multiplied by the aggregate
POPs of all Permitted BTAs as of such date (excluding any POPs in
geographic areas for which the right to provide PCS services
shall have been sold pursuant to FCC License Partitions on or
before such date), and
for the purposes of determining compliance with this Section 9.1(a),
in the event that an item of Indebtedness meets the criteria of more
than one of the types of Permitted Indebtedness described in the
definition thereof, the Borrower, in its sole discretion, shall
classify such item of Permitted Indebtedness and only be required to
include the amount and type of such Permitted Indebtedness in one of
such types;
(b) RESTRICTIONS ON LIENS:
(i) create or incur or suffer to be created or incurred or to exist
any Lien, encumbrance, mortgage, pledge, charge, restriction or
other security interest of any kind other than Permitted Liens
upon any of its Property or assets of any character whether now
owned or hereafter acquired, or upon the income or profits
therefrom;
(ii) other than Permitted Liens, transfer any of such Property or
assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance
of any other obligation in priority to payment of its general
creditors;
(iii) other than Permitted Liens, acquire, or agree or have an option
to acquire, any property or assets upon conditional sale or other
title-retention or purchase-money security agreement, device or
arrangement;
(iv) other than Permitted Liens, suffer to exist for a period of more
than 30 days after the same shall have been incurred any
Indebtedness or claim or demand against it that if unpaid might
by law or upon bankruptcy or insolvency, or otherwise, be given
any priority whatsoever over its general creditors; or
(v) other than Permitted Liens, sell, assign, pledge or otherwise
transfer any accounts, contract rights, general intangibles,
chattel paper or instruments, with or without recourse;
(c) NO CONTINGENT OBLIGATIONS: create, incur, assume, guarantee or remain
liable in respect of any Contingent Obligations other than:
(i) the Guaranties,
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(ii) guaranties of Indebtedness under other Permitted Loan Agreements,
and
(iii) those permitted pursuant to paragraphs (a)(v), (c)(ii) or (iii)
and (d)(i) of the definition of "Permitted Indebtedness".
(d) RESTRICTIONS ON INVESTMENTS: make or permit to exist or to remain
outstanding any Investment except:
(i) Investments in Rate Hedging Agreements in a notional principal
amount on any date reasonably related to the aggregate principal
amount of Indebtedness of the Borrower accruing interest at a
floating rate, and only so long as the purpose of such
Investments shall be to hedge such floating-rate interest and
shall not be to speculate on interest rates;
(ii) Investments in commercial paper maturing in 90 days or less from
the date of issuance which, at the time of acquisition by the
Borrower or any of its Subsidiaries, is accorded a rating of "A1"
or better by Standard & Poor's Ratings Group or "P1" or better by
Moody's Investors Service, Inc. or an equivalent rating by
another nationally recognized credit-rating agency of similar
standing;
(iii) Investments in:
(A) direct obligations of, or obligations guaranteed by, the
United States of America or the United Kingdom or any agency
that constitutes a full-faith-and-credit obligation of the
United States of America or the United Kingdom, in any case
maturing in 12 months or less from the date of acquisition
thereof; and
(B) repurchase agreements fully secured by underlying securities
of the type described in clause (A) above and issued by a
bank or trust company meeting the requirements of Section
9.1(d)(iv);
(iv) Investments in certificates of deposit maturing within six months
from the date of issuance thereof (x) issued by a bank or trust
company organized under the laws of the United Kingdom or the
United States or any state thereof, having capital, surplus and
undivided profits aggregating at least $500,000,000 and whose
long-term certificates of deposit are, at the time of acquisition
thereof by the Borrower, rated "AA" or better by Standard &
Poor's Ratings Group or "A" or better by Moody's Investors
Service, Inc., or (y) issued by any Lender;
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(v) Investments in money-market funds (other than single-state funds)
that make investments in accordance with the regulations of the
Securities and Exchange Commission under the Investment Company
Act of 1940, as amended;
(vi) loans or advances in the usual and ordinary course of business to
officers, directors and employees for expenses (including moving
expenses related to a transfer) incidental to carrying on the
business of the Borrower or any of its Subsidiaries;
(vii) Investments by the Borrower in its Subsidiaries, by Operating
Subsidiaries in License Subsidiaries and by Subsidiaries in the
Borrower by way of loans;
(viii) Subject to Section 9.1(g) below, investments by the Borrower or
any of its Subsidiaries (except as the Borrower and the Required
Lenders may otherwise agree) in Qualified Joint Ventures;
(ix) loans, advances, installment sales or receivables that would
constitute Investments, in each case in respect of sales of
handsets and accessories thereto to retail end users on payment
terms requiring full payment within 365 days following such
sales;
(x) the loan made by the Borrower to the Grandparent evidenced by the
Tranche Y Mirror Note (as defined in the Ericsson Loan
Agreement);
(xi) Investments existing on the date hereof and listed on Schedule
9.1(d)(xi);
(xii) Investments by the Borrower and its Subsidiaries consisting of
seller-take-back financing permitted under Section
9.1(f)(iii)(B)(1); or
(xiii) Investments by the Borrower or any of its Subsidiaries pursuant
to the terms of the Cash Management Agreement, including
investments by the agent thereunder in OII, which will in turn
make Investments of the type described in clauses (i) through
(vii) above.
(e) DISTRIBUTIONS: make any Distributions (other than a dividend or other
distribution of any shares of common Stock of the Borrower subject to
the Parent's pledge under the Parent Pledge Agreement) in respect of
the Borrower's Stock or any Subordinated Indebtedness of the Borrower,
except that the Borrower may:
(i) pay interest in respect of Subordinated Indebtedness owing to the
Grandparent, or any of its Subsidiaries, but only if:
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(A) at the time of and after giving effect to such payment, no
Event of Default or Potential Event of Default shall have
occurred and be continuing; and
(B) interest on such Subordinated Indebtedness shall accrue at a
rate per annum not exceeding a fixed rate of 12% per annum
(or, subject to the prior written approval of the Required
Lenders, such higher rate as is consistent with then-
available market rates);
(ii) repay or prepay principal owing in respect of Subordinated
Indebtedness owing to the Grandparent, or any of its
Subsidiaries, but only if:
(A) at the time of and after giving effect to such repayment or
prepayment, no Event of Default or Potential Event of
Default shall have occurred and be continuing,
(B) the aggregate principal amount of all such Subordinated
Indebtedness that is being repaid or prepaid at such time
shall not exceed the sum of:
(a) the difference, if any, between:
(1) the maximum aggregate principal amount of the
Advances that could then be outstanding at such
time under Section 2.1, and
(2) the sum of:
(I) the aggregate principal amount of the Advances
that are actually outstanding at such time,
and
(II) the aggregate principal amount of such
Subordinated Indebtedness that shall have
been repaid or prepaid after the date of
this Agreement and is allocable to amounts
that may be distributed pursuant to this
clause (a),
(b) the difference, if any, between:
(1) the maximum aggregate principal amount of the
Indebtedness that could then be outstanding at
such time under other Permitted Loan Agreements,
and
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(2) the sum of:
(I) the aggregate principal amount of the
Indebtedness that is actually outstanding
thereunder at such time, and
(II) the aggregate principal amount of such
Subordinated Indebtedness that shall have
been repaid or prepaid after the date of this
Agreement and is allocable to amounts that
may be distributed pursuant to this clause
(b), and
(c) the amount equal to:
(1) the aggregate principal amount of such Subordinated
Indebtedness that shall have been loaned to the
Borrower within the 180 days preceding the date
of such repayment or prepayment, minus
(2) the aggregate principal amount of such Subordinated
Indebtedness that shall have been repaid within the
180 days preceding the date of such repayment or
prepayment and is allocable to amounts that may be
distributed pursuant to this clause (c);
provided that:
--------
(x) any such repayment or prepayment on any date shall
be allocated to clause (a), (b) or (c) above for
purposes of determining whether any distribution
may be made pursuant to this clause (ii) in the
following order of priority: first, any such
-----
repayment or prepayment shall be allocated to
clause (c) above until any further allocation to
such clause on such date would cause the amount
calculated pursuant to such clause to be less than
zero; second any such repayment or prepayment shall
------
be allocated to clause (b) above until any further
allocation to such clause on such date would cause
the amount calculated pursuant to such clause to be
less than zero; and third any such repayment or
-----
prepayment shall be allocated to clause (a) above,
and
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(y) any such repayment or prepayment that is made with
proceeds of a borrowing under this Agreement or any
Permitted Loan Agreement shall not be taken into
account for the computation provided for in clause
(a)(2)(II) or (b)(2)(II) above; and
(C) at any preceding date, no Event of Default or Potential
Event of Default would have occurred if such Subordinated
Indebtedness had not been outstanding; and
(iii) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing at the time of and after
giving effect to such Distribution, make a Distribution of an
amount equal to the Net Cash Proceeds of any Sale with respect to
any FCC License, the Stock of any License Subsidiary, to the
extent such Net Cash Proceeds are not required to be applied to
the prepayment of Advances pursuant to Section 5.2 or of any
other Indebtedness of the Borrower or any of its Subsidiaries;
and
(iv) make other Distributions (other than Distributions in respect of
Subordinated Indebtedness owing to Persons other than the
Borrower or the Parent), but only if at the time of and after
giving effect to such Distribution:
(A) no Event of Default or Potential Event of Default shall have
occurred and be continuing;
(B) the Borrower and its Subsidiaries shall have had
Consolidated EBITDA in excess of zero for each of its four
consecutive Fiscal Quarters ending with its Fiscal Quarter
most recently ended prior to the date of such Distribution
(the "Preceding Fiscal Quarter"); and
------------------------
(C) the aggregate amount for all Distributions by the Borrower
during the fiscal year of the Borrower in which the date of
such Distribution occurs shall not exceed:
(1) Working Capital as of the last day of the Preceding Fiscal
Quarter, minus
(2) the aggregate amount of Debt Service payable by the Borrower
and its Subsidiaries during the 12 calendar months next-
following the Preceding Fiscal Quarter, minus
(3) the aggregate amount of any prepayment of Indebtedness of the
Borrower from Excess Cash Flow pursuant to Section 3.02(c) of
the Ericsson Loan Agreement and other similar prepayment
provisions of other Permitted Loan Agreements
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during the Borrower's then-current fiscal year and that has
not theretofore been made;
(f) MERGER, CONSOLIDATION, DISPOSITION OF ASSETS, ETC: become a party to
or agree to or effect any disposition of assets (including without
limitation any disposition of any right to use any portion of any
wavelength covered by any FCC License or any right to provide PCS
services to any POPs in any geographic area within any Permitted BTA),
other than:
(i) the disposition of assets in the ordinary course of business;
(ii) the disposition of obsolete assets or equipment no longer
necessary to the operation of the Borrower's or any Subsidiary's
business, consistent with sound and prudent practices;
(iii) so long as no Event of Default or Potential Event of Default
shall have occurred and be continuing at the time thereof any:
(A) Permitted C-Block FCC License Transfers;
(B) any other FCC License Transfer, FCC License Partition and
any disposition of equipment or other assets used primarily
for the operation of a BTA with respect to which such FCC
License Transfer or FCC License Partition shall have
occurred, but, in each case, only if:
(1) one of the following shall be true:
(I) after giving effect to such disposition and all
other FCC License Transfers (other than Permitted C-
Block License Transfers and dispositions as a result
of the occurrence of a C-Block General License
Revocation Event) and FCC License Partitions, the
number of POPs included in BTAs as to which such FCC
License Transfers shall have occurred and geographic
areas for which the right to provide PCS services
shall have been disposed of pursuant to FCC License
Partitions (other than dispositions as to which a
condition specified in clause (II), (III), (IV) or
(V) below shall have been satisfied) shall not
exceed 5% of the total POPs of all BTAs that are
Permitted BTAs as of the Closing Date;
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(II) such disposition is an FCC License Transfer and all
of the following are true: (a) the sole
consideration paid in connection with the
disposition is the FCC License in respect of which
the FCC License Transfer shall have occurred; (b) in
consideration for such disposition an FCC License is
acquired for the same BTA as that for the FCC
License being disposed of, and such acquired FCC
License covers at least the same amount of spectrum
as the FCC License being disposed of; (c) no asset
other than such FCC License is disposed of in
connection with such disposition; (d) no License
Subsidiary or other Loan Party shall be liable for
the payment of any Indebtedness owing to the FCC in
connection with the payment of the deferred-purchase
price for the FCC License being disposed of; and (e)
no Indebtedness is incurred by the Borrower and its
Subsidiaries in connection with such disposition
except Indebtedness owing to the FCC in an aggregate
principal amount not exceeding the aggregate
principal amount of Indebtedness owing to the FCC in
respect of the FCC License being disposed of;
(III) such disposition is an FCC License Transfer relating
to a C-Block FCC License and all of the following
are true: (a) a License Subsidiary shall hold either
(x) one or more FCC Licenses or (y) the right to
provide, on terms and conditions satisfactory to the
Required Lenders, PCS services under FCC Licenses
held by third parties covering at least 10 MHZ of
spectrum; (b) no asset other than such FCC License
is disposed of in connection with such disposition;
(c) such disposition is by way of either (x) a sale
that complies with the requirements of clause (V)
below or (y) a Permitted C-Block FCC License
Transfer; and (iv) no License Subsidiary or other
Loan Party shall be liable for the payment of the
Indebtedness owing to the FCC in connection with the
payment of the deferred purchase price of the FCC
License being disposed of;
(IV) the Required Lenders shall have accepted as a
Permitted BTA a BTA in substitution for the BTA as
to which such FCC License Transfer shall have
occurred; or
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(V) of the aggregate value of the consideration received
by the Borrower and its Subsidiaries therefor (as
determined in good faith by the Board of Directors
of the Grandparent), no less than 75% shall be
cash payable at the time of such sale and no more
than 25% shall be in the form of deferred cash
payments, and no consideration shall be in any other
form, and such consideration shall be at least equal
to the fair-market value (as determined in good
faith by the Board of Directors of the Grandparent)
of the assets sold provided that in the case of C-
Block FCC Licenses and F-Block FCC Licenses, such
sales may be in consideration (which shall be
counted as cash consideration) for forgiveness or
assumption of Indebtedness owing to the FCC;
(2) no equipment or other assets that are disposed of shall
be assets that are necessary for the normal commercial
operation of any Permitted BTA; and
(3) such disposition, if other than an FCC License
Partition, shall not relate to a Core BTA;
(C) dispositions of the right to use no more than 10 MHZ of
spectrum in the aggregate in respect of any C-Block FCC
License, so long as the consideration received therefor
shall be at least equal to the fair-market value (as
determined in good faith by the Board of Directors of the
Grandparent) thereof and such disposition shall be made only
to (1) a Person that then owns spectrum that may be used for
providing cellular or PCS wireless telecommunications
services for profit or (2) a Person that cannot provide
cellular or PCS wireless telecommunications services for
profit; and
(D) capital contributions to Qualified Joint Ventures by way of
FCC License Transfers and FCC License Partitions, and
contributions of any equipment and other assets used
primarily for the operation of the related Permitted BTA or
applicable geographic area thereof, so long as:
(1) such disposition shall be in compliance with Section
9.1(d)(viii);
(2) such disposition, if an FCC License Transfer, shall not
relate to an FCC License for a Core BTA; and
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(3) the aggregate value of the consideration received by the
Borrower and its Subsidiaries for such contribution
shall at least be equal to the fair-market value (as
determined in good faith by the Board of Directors of
the Grandparent) of the assets so contributed;
(iv) other dispositions of assets for their fair-market value, as
determined in good faith by the Borrower, solely for cash
consideration in an amount not to exceed $10,000,000 in the
aggregate during the term of this Agreement; and
(v) transfers of assets from the Borrower to any Subsidiary or from a
Subsidiary to the Borrower or another Subsidiary, in each case to
the extent that, after giving effect to such transfer, the
transferee would be in compliance with its obligations under
Section 9.1(l);
(g) QUALIFIED JOINT VENTURE:
(i) if the Borrower or any of its Subsidiaries shall make any
disposition of any assets pursuant to clause (f)(iii)(D) above to
a Qualified Joint Venture, thereafter permit such Qualified Joint
Venture to fail to continue to qualify as a Qualified Joint
Venture, except in a transaction involving a disposition of the
assets of such Qualified Joint Venture that is otherwise
permitted under Section 9.1(f); and
(ii) contribute any assets of a Subsidiary to a Qualified Joint
Venture except to the extent reasonably necessary for the
contemplated operations of such Qualified Joint Venture;
(h) SALE OF STOCK IN SUBSIDIARY: except with the agreement of the Required
Lenders, permit any Subsidiary to issue or sell any Stock or other
equity interest in itself, other than to the Borrower or another
Subsidiary of the Borrower and only if such Stock is pledged as
security under the Collateral Documents;
(i) SALE AND LEASEBACK: enter into, any arrangement, directly or
indirectly, whereby the Borrower or any of its Subsidiaries shall sell
or transfer any Property owned by it in order then or thereafter to
lease such Property or lease other property that the Borrower or such
Subsidiary intends to use for substantially the same purpose as the
Property being sold or transferred;
(j) COMPLIANCE WITH ENVIRONMENTAL LAWS: except as set forth in the reports
and other materials listed on Schedule 7.1(bb)(i):
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(i) use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of Materials of
Environmental Concern, except in compliance with Environmental
Laws;
(ii) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for
Materials of Environmental Concern, except in compliance with
Environmental Laws;
(iii) generate any Materials of Environmental Concern on any of the
Real Estate, except in compliance with Environmental Laws;
(iv) conduct any activity at any Real Estate or use any Real Estate in
any manner so as to cause a release (i.e., releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping) or
threatened release of Materials of Environmental Concern on, upon
or into the Real Estate except in compliance with Environmental
Laws; or
(v) otherwise conduct any activity at any Real Estate, except in
compliance with Environmental Laws, or use any Real Estate in any
manner that would violate any Environmental Law or bring such
Real Estate in violation of any Environmental Law;
(k) EMPLOYEE BENEFIT PLANS: nor shall the Borrower permit any ERISA
Affiliate to:
(i) engage in any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the IRC which could
result in a material liability for the Borrower;
(ii) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in Section 302 of
ERISA, whether or not such deficiency is or may be waived;
(iii) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on
the assets of the Borrower pursuant to Section 302(f) or Section
4068 of ERISA;
(iv) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA)
of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in
excess of benefit liabilities;
(v) fail to make when due any required contributions to a
Multiemployer Plan;
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(vi) withdraw (completely or partially) from any Multiemployer Plan
where such withdrawal is likely to result in a material liability
of the Borrower or an ERISA Affiliate;
(vii) terminate or institute proceedings to terminate, any Guaranteed
Pension Plan, where such termination is likely to result in a
material liability of the Borrower or an ERISA Affiliate;
(viii) make any amendment to any Guaranteed Pension Plan with respect to
which security is required under Section 307 of ERISA; or
(ix) fail to give any and all notices and make all disclosures and
governmental filings required under ERISA or the IRC where such
failure is likely to result in material liability to the Borrower
or an ERISA Affiliate;
(l) NEW SUBSIDIARIES: create or acquire any Person other than Operating
Subsidiaries, Licenses Subsidiaries or any Person the sole asset of
which consists of its partnership interest in a general or limited
partnership or equity interest in a corporation or limited liability
company;
(m) TRANSACTIONS WITH AFFILIATES: enter into:
(i) any agreement or arrangement providing for the payment of any
amounts to any of its Affiliates, except that:
(A) the Borrower may enter into the Expense Allocation Agreement
and any Operating Subsidiary may enter into (A) the Cash
Management Agreement, (B) the Services Agreement and (C) one
or more operating and licencing agreements substantially in
the form of Exhibit D-2 hereto, between such Operating
-----------
Subsidiary and a License Subsidiary;
(B) the Borrower and its Subsidiaries may enter into a tax-
sharing agreement or arrangement pursuant to which the
Borrower and its Subsidiaries shall not make any payments or
agree to make any payments in lieu of income taxes unless
the cumulative sum of such payments does not exceed the
cumulative sum of income taxes that the Borrower and its
Subsidiaries would have paid if the Borrower and its
Subsidiaries had always filed income-tax returns as separate
entities; and
(C) the Borrower and its Subsidiaries may enter into a
management, consulting or other agreement, but only if such
agreement either
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(a) relates to providing management, consulting or other
services to an Affiliate operating BTA markets and
(1) is on terms that are fair and reasonable and no
less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate; and
(2) does not provide for the performance of services or
purchase or delivery of property by the Borrower or
such Subsidiary in a manner that, individually or
together with all other such agreements with
Affiliates operating BTA markets, would have a
material adverse effect on the ability of the
Borrower or such Subsidiary to build-out or operate
any BTA or MTA for which it owns the applicable FCC
License; or
(b) is approved in writing by the Required Lenders; or
(ii) any other agreement, arrangement or transaction with any of its
Affiliates (whether or not providing for the payment of any
amounts to any of its Affiliates), except in the ordinary course
of business and on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would obtain
in a comparable arm's-length transaction with a Person not an
Affiliate;
(n) PERMITTED BUSINESS:
(i) in the case of the Borrower, engage in any business other than
the holding of Stock of Operating Subsidiaries and License
Subsidiaries and the purchasing and reselling to Subsidiaries of
equipment used in connection with the build-out and operation of
PCS Systems for which FCC Licenses for BTAs other than Excluded
BTAs are held by License Subsidiaries or hold any assets other
than such Stock and the Tranche Y Mirror Note (as defined in the
Ericsson Loan Agreement);
(ii) in the case of any License Subsidiary, to engage in any business
other than the holding of FCC Licenses and the licensing thereof
to other Persons to the extent permitted hereunder or hold any
assets other than FCC Licenses; and
(iii) in the case of any Operating Subsidiary, to engage in any
business other than the development, construction and operation
of PCS Systems and related businesses;
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(o) CHARTER AMENDMENTS: amend its certificate of incorporation or limited
liability company formation documents (as applicable) or bylaws;
(p) ACCOUNTING CHANGES: make or permit any change in accounting policies
or reporting practices, except as required by GAAP, or change its
fiscal year;
(q) PREPAYMENTS, ETC., OF INDEBTEDNESS:
(i) prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner, or make any payment
in violation of any subordination terms of, any Indebtedness
owing by the Borrower or any of its Subsidiaries, other than the
prepayment of:
(A) the Advances in accordance with the terms of this Agreement
or as the Required Lenders may otherwise agree, except for
prepayments, redemptions, purchases or other satisfactions
by the Borrower of, or as to, which lenders under the
Intercreditor Agreement are not required to pay any amount
to other lenders party thereto;
(B) Indebtedness owing to the FCC;
(C) Tranche Y of the Ericsson Loan Agreement, provided such
prepayment is made in Common Stock of the Grandparent;
(D) Tranche X of the Ericsson Loan Agreement pursuant to a
refinance, refunding or replacement thereof incurred as
Permitted Indebtedness pursuant to Section 9.1(a) and
paragraph (a)(ii) of the definition of "Permitted
Indebtedness"; or
(E) Subordinated Indebtedness to the extent permitted under the
applicable Subordination Agreement and Section 9.1(e) above;
or
(ii) amend, modify or change in any manner any term or condition of
any Subordinated Indebtedness or any other Indebtedness secured
by Liens in favor of the Collateral Agent, except for amendments,
modifications and changes that the lenders party to the
Intercreditor Agreement are permitted to enter into thereunder;
(iii) (If on any date any amount shall be due and owing hereunder and
under any other Indebtedness of the Borrower or any of its
Subsidiaries and the Borrower or such Subsidiary does not pay in
full all such amounts as are then due and owing) pay any such
amounts except ratably, in accordance with the respective amounts
then due and owing thereunder, and If the Borrower shall
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take any action in violation of this Section 9.1(q), it
irrevocably authorizes each lender to it that is a party to the
Intercreditor Agreement on its behalf to make any payment
required under the Intercreditor Agreement and acknowledges that
any amount so paid by any such lender shall be deemed not to have
been paid by the Borrower or such Subsidiary to such lender;
(r) AMENDMENT, ETC., OF MATERIAL CONTRACTS: cancel or terminate any
Material Contract or consent to or accept any cancellation or
termination thereof, amend or otherwise modify any Material Contract
or give any consent, waiver or approval thereunder, waive any default
under or breach of any Material Contract, agree in any manner to any
other amendment, modification or change of any term or condition of
any Material Contract, or take any other action in connection with any
Material Contract, and shall not permit any of its Subsidiaries to do
any of the foregoing, that, in any such case, could, at the time
thereof, reasonably be expected to have a material adverse effect on
the ability of the Borrower or any of its Subsidiaries to perform its
obligations under this Agreement or any other Loan Document;
(s) RESTRICTIONS ON SUBSIDIARIES:
(i) enter into or suffer to exist, any agreement prohibiting or
conditioning the creation or assumption of any Lien in favor of
the Collateral Agent upon any of its property or assets or
limiting the ability of any Subsidiary to declare and pay
dividends and distributions or make Investments in the Borrower;
and
(ii) so long as any Advances are outstanding or any other amount is
owing under the Loan Documents, permit any Distribution to be
made by any Qualified Joint Venture except in cash or to any
Person other than the Borrower and its Subsidiaries if such
Person would receive more than 10% of the total amount of such
Distribution or if the total amount of all such Distributions
during any calendar year would exceed the Excess Cash Flow of
such Qualified Joint Venture for the immediately preceding
calendar year;
(t) PARTNERSHIPS: become a general partner in any general or limited
partnership other than any Subsidiary the sole asset of which consists
of its interest in such partnership;
(u) UNDER THE EQUIPMENT ACQUISITION AGREEMENT: default in the performance
or observance of any covenants or conditions on its part to be
performed or observed under the Equipment Acquisition Agreement;
(v) COLLECTIONS OF RECEIVABLES: collect any receivables arising from
providing PCS or other services or sales of handsets or other assets,
except through the Operating Subsidiary or Omnipoint Services pursuant
to the Services Agreement;
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(w) CASH INVESTMENTS IN QUALIFIED JOINT VENTURES: permit the aggregate
amount of any outstanding investment (including any Non-Cash
Consideration) in a Qualified Joint Venture to exceed at any one time
$20,000,000 in respect of any Qualified Joint Venture; and
(x) PERMITTED LOAN AGREEMENTS: amend any other Permitted Loan Agreement,
unless such amendment will not have a Material Adverse Effect.
ARTICLE 10. CONDITIONS PRECEDENT
SECTION 10.1 INITIAL ADVANCE: The obligations of the Lenders to make the
initial Advance shall be subject to the satisfaction of the following conditions
precedent on or prior to the date (the "Closing Date") of delivery of the
------------
Disbursement Claim for the initial Advance:
(a) TERMS AND CONDITIONS OF TRANSACTION: each Lender shall:
(i) have received copies of each of the other Loan Documents, which
shall have been duly executed and delivered by the respective
parties thereto, shall be in full force and effect and shall be
in form and substance satisfactory to the Administrative Agent
and the Arranger's counsel;
(ii) be satisfied with the final terms and conditions of the
transactions contemplated hereby and by the other Loan Documents,
including, without limitation, all legal and tax aspects thereof;
and
(iii) be satisfied with the corporate and legal structure and
capitalization of the Borrower and its Subsidiaries, including,
without limitation, their respective charters and bylaws and each
agreement or instrument relating thereto;
(b) DUE DILIGENCE: the Lenders shall have completed a due-diligence
investigation of the Borrower and its Subsidiaries in scope, and with
results, satisfactory to the Lenders and shall have been given such
access to the management, records, books of account, contracts and
properties of the Borrower and its Subsidiaries and shall have
received such financial, business, legal, tax, labor, environmental
and other information regarding the Borrower and its Subsidiaries as
they shall have requested;
(c) VALIDITY OF LIENS: the Borrower Security Agreement, the Parent Pledge
Agreement and each other Collateral Document required to be entered
into, as amended and restated, on the date hereof shall be effective
to create in favor of the Collateral Agent a legal, valid and
enforceable first-priority security interest (except for Permitted
Liens that have priority under applicable law) in and Lien upon the
Collateral;
(d) FILINGS: all filings, recordings, deliveries of instruments and other
actions necessary or desirable in the opinion of the Administrative
Agent and/or Collateral Agent to
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protect and preserve such security interests shall have been duly
effected, all such documents shall have been duly executed by the
applicable Loan Party and all filing and recording fees and taxes
relating to any of the foregoing shall have been duly paid, and the
Administrative Agent shall have received evidence thereof in form and
substance satisfactory to the Administrative Agent;
(e) SEARCH REPORTS AND RELATED DOCUMENTS: the Administrative Agent shall
have received:
(i) such Uniform Commercial Code, tax, patent, trademark and judgment
lien search reports with respect to such applicable public
offices where Liens are filed, as shall be acceptable to the
Administrative Agent, disclosing that there are no Liens of
record (other than Permitted Liens) in such official's office
covering any Collateral or showing any Loan Party as a debtor
thereunder;
(ii) a certificate of each Loan Party signed by an authorized officer
of such Loan Party, dated the Closing Date, certifying that, as
of the Closing Date, there will exist no Liens on the Collateral
other than Permitted Liens; and
(iii) acknowledgment copies or duly executed file-stamped copies of
UCC-1 and UCC-3 financing statements with respect to the
Collateral (other than the Pledged Collateral), filed in each
office in each jurisdiction that the Administrative Agent may
deem necessary or appropriate to perfect and protect a first-
priority Lien on the Collateral;
(f) CERTIFICATES OF INSURANCE: the Administrative Agent shall have
received a certificate of insurance from an independent insurance
broker, dated as of the Closing Date, identifying insurers, types of
insurance, insurance limits, and policy terms, and otherwise
describing the insurance obtained in accordance with the provisions of
the Collateral Documents and Section 8.1(e) of this Agreement;
(g) SOLVENCY CERTIFICATE: the Administrative Agent shall have received an
officer's certificate of the Borrower in form and substance
satisfactory to the Administrative Agent and dated as of the Closing
Date as to the Borrower being Solvent following consummation of the
transactions contemplated herein;
(h) OPINIONS OF COUNSEL TO THE BORROWER AND ITS SUBSIDIARIES: the
Administrative Agent shall have received favorable legal opinions
addressed to the Lenders and the Administrative Agent, each dated as
of the Closing Date, in form and substance satisfactory to the
Administrative Agent, from (i) Piper & Marbury, L.L.P., counsel to the
Borrower, (ii) Piper & Marbury, L.L.P., counsel to the Borrower's
Subsidiaries, and (iii) local counsel to the Borrower's Subsidiaries
in such jurisdictions as the Administrative Agent may reasonably
request;
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(i) OPINION OF COUNSEL TO THE PARENT: the Administrative Agent shall have
received a favorable legal opinion addressed to the Lenders and the
Administrative Agent, from Piper & Marbury, L.L.P., counsel to the
Parent, dated on or before the Closing Date, in form and substance
satisfactory to the Administrative Agent;
(j) OPINION OF FCC COUNSEL: the Administrative Agent shall have received a
favorable legal opinion addressed to the Lenders and Administrative
Agent from Piper & Marbury, L.L.P., FCC counsel to the Borrower and
the Parent, dated on or before the Closing Date, in form and substance
satisfactory to the Administrative Agent;
(k) OPINION OF EKN COUNSEL TO THE ADMINISTRATIVE AGENT AND THE ARRANGER:
the Administrative Agent shall have received a favorable legal opinion
in respect of the EKN Documents addressed to the Borrower, the Lenders
and the Administrative Agent from Vinge, Swedish counsel to the
Administrative Agent and the Arranger, dated on or before the Closing
Date, in form and substance satisfactory to the Administrative Agent;
(l) OPINION OF SWEDISH COUNSEL TO THE ADMINISTRATIVE AGENT AND THE
ARRANGER: the Administrative Agent shall have received a favorable
legal opinion from Vinge, Swedish counsel to the Administrative Agent
and the Arranger regarding Ericsson Radio Systems addressed to the
Administrative Agent and the Lenders, dated on or before the Closing
Date, in form and substance satisfactory to the Administrative Agent;
(m) PAYMENT OF FEES AND FEE LETTER: the Borrower shall have:
(i) paid all accrued fees and expenses of the Arranger, the
Administrative Agent, the Collateral Agent and the Lenders, to
the extent payable by the Borrower hereunder and under the other
Loan Documents; and
(ii) executed and delivered to the Administrative Agent the fee letter
referred to in Section 3.1(d);
(n) APPROVALS, PERMITS; FCC LICENSES: the Administrative Agent shall have
received evidence satisfactory to the Administrative Agent that:
(i) the Borrower and each of the License Subsidiaries and Operating
Subsidiaries shall have obtained all federal, state and local
governmental and regulatory consents, approvals, FCC Licenses and
permits, including any third-party consents, as required or
necessary for the Borrower to accept Advances and for the
Borrower and each of the License Subsidiaries and Operating
Subsidiaries to operate their businesses pursuant to the Approved
Full-Term Operating Business Plan and shall maintain in effect
each of the foregoing;
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(ii) all applicable waiting periods shall have expired without any
action being taken by any competent authority;
(iii) no law or regulation shall be applicable in the opinion of the
Administrative Agent that restrains, prevents or imposes
materially adverse conditions upon the Advances or the operation
of the businesses of the Borrower and each of the License
Subsidiaries and Operating Subsidiaries as currently operated,
and the Administrative Agent shall have received a certificate of
an authorized officer of the Borrower to that effect dated the
Closing Date;
(iv) the FCC Licenses for the BTA's within the Miami and Boston MTA's
shall have been granted for a total consideration payable to the
United States of America of no more than $52,500,000;
(v) the acquisition of the FCC Licenses for the Permitted BTA's
within the Miami and Boston MTA's shall have been financed by no
more than $52,500,000 plus accrued interest thereon by way of
deferred purchase price payable to the United States of America;
(vi) each FCC License for a Permitted BTA is held in a single purpose
License Subsidiary by virtue of an approval and final order of
the FCC and each such FCC License, approval and final order
remains in full force and effect;
(o) GRANT OF FCC LICENSES: that each FCC License listed in Parts I and II
of Schedule 7.1(j) has been won by the Grandparent and its
Subsidiaries in FCC PCS auctions, has been transferred to a License
Subsidiary, that each such FCC License is held by a Subsidiary of the
Grandparent and that no such FCC License is subject or likely to be
subject to any revocation action commenced or threatened by the FCC or
to being purchased by any Person other than a License Subsidiary;
(p) DELIVERY OF FULL-TERM OPERATING BUSINESS PLAN: the Borrower shall have
delivered to the Administrative Agent and each Lender a copy of the
Approved Full-Term Operating Business Plan, which shall be in form and
substance satisfactory to the Administrative Agent and each Lender,
together with (i) a certificate of the chief or principal financial or
accounting officer dated the Closing Date certifying as to the
reasonableness of the assumptions and expectations contained therein
and that there are presently no facts known to such Person that would
make either such plan misleading in any material respect and (ii) such
pro-forma financial statements and projections for the Borrower and
its Subsidiaries, in form and substance satisfactory to the Lenders,
as shall be reasonably requested by the Lenders;
(q) SECURITY AGREEMENTS: the Borrower shall have delivered to the
Administrative Agent copies of each of the following:
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(i) an amended and restated security agreement (as amended from time
to time, the "Borrower Security Agreement"), in substantially the
---------------------------
form of Exhibit E-1, duly executed by the Borrower, that, among
-----------
other things, grants to the Collateral Agent for the benefit of
the Secured Parties a Lien on such assets of the Borrower
(including without limitation all issued and outstanding Stock of
each License Subsidiary and each Operating Subsidiary owned by
the Borrower) as the Lenders may request;
(ii) an amended and restated pledge agreement (as amended from time to
time, the "Parent Pledge Agreement"), in substantially the form
-----------------------
of Exhibit E-2, duly executed by the Parent, that, among other
-----------
things, pledges to the Collateral Agent for the benefit of the
Secured Parties all issued and outstanding Stock of the Borrower
owned by the Parent;
(iii) an amended and restated pledge agreement (as amended from time to
time, a "D-, E- and F-Block Subsidiary Pledge Agreement"), in
----------------------------------------------
substantially the form of Exhibit E-3, duly executed by the D-,
-----------
E- and F-Block Subsidiary Parent, that, among other things,
pledges to the Collateral Agent for the benefit of the Secured
Parties all issued and outstanding Stock of each D-, E- and F-
Block Subsidiary; and
(iv) amended and restated security agreements (together with each
other security agreement delivered pursuant to Section
8.1(o)(ii), in each case as amended from time to time, a
"Subsidiary Security Agreement"), substantially in the form of
------------------------------
Exhibit E-4 hereto, duly executed by the Guarantors (other than
-----------
EKN, the Parent and the D-, E- and F-Block Subsidiary Parent),
each of which, among other things, grants to the Collateral Agent
for the benefit of the Secured Parties a Lien on such assets of
such Guarantor (including, in the case of any Operating
Subsidiary, all issued and outstanding Stock of each of its
Subsidiaries that is a License Subsidiary or an Operating
Subsidiary, but in the case of any License Subsidiary, excluding
any assets for which the grant of such a Lien would violate
applicable FCC regulations) as the Administrative Agent may
request; and
together with copies of each of the following items previously executed and
delivered in favor of the Collateral Agent, or as the Administrative Agent
may reasonably require in connection with this Agreement:
(1) if applicable, certificates representing the shares of Stock
pledged under such Security Agreements, accompanied by
undated stock powers executed in blank;
(2) duly executed financing statements previously filed or to be
filed, in proper form for filing under the Uniform Commercial
Code of all other jurisdictions that the Administrative Agent
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may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests
created under such Security Agreements covering the
Collateral described in such Security Agreements;
(3) evidence of any insurance required by the terms of such
Security Agreements; and
(4) evidence that all other action that the Administrative Agent
may deem necessary or desirable in order to perfect and
protect the first priority liens and security interests
created under such Security Agreements has been taken.
(r) GUARANTIES AND INDEMNITY: the Borrower shall have delivered to the
Administrative Agent copies of each of the following:
(i) from the Parent, a limited-recourse guaranty in substantially the
form of Exhibit H-1 hereto (as amended, supplemented or otherwise
-----------
modified from time to time in accordance with its terms, the
"Limited Recourse Parent Guaranty"), duly executed by the Parent;
---------------------------------
(ii) from the D-, E- and F-Block Subsidiary Parent, a limited-recourse
guaranty in substantially the form of Exhibit H-2 hereto (as
-----------
amended, supplemented or otherwise modified from time to time in
accordance with its terms, the "D-, E- and F-Block Subsidiary
-----------------------------
Parent Limited Recourse Guaranty"), duly executed by the D-, E-
--------------------------------
and F-Block Subsidiary Parent;
(iii) from each Operating Subsidiary and each License Subsidiary, a
guaranty in substantially the form of Exhibit H-3 hereto
-----------
(together with each other such guaranty delivered pursuant to
Section 8.1(o)(i), in each case as amended, supplemented or
otherwise modified from time to time in accordance with its
terms, a "Subsidiary Guaranty"), duly executed by each Operating
-------------------
Subsidiary and each License Subsidiary; and
(iv) from Ericsson Radio Systems, a guaranty in substantially the form
of Exhibit H-4 hereto, (the "Ericsson Guaranty") and an indemnity
-----------------
substantially in the form of Exhibit H-5 hereto (the "Ericsson
--------
Indemnity"), each duly executed by Ericsson Radio Systems.
---------
(s) MORTGAGES, ETC: the Borrower shall have delivered to the
Administrative Agent amended and restated copies of deeds of trust,
trust deeds, mortgages, leasehold mortgages and leasehold deeds of
trust in form and substance satisfactory to the Administrative Agent
covering the properties listed on Schedule 10.1(s) hereto (together
with each other mortgage delivered pursuant to Section 8.1(n), in each
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case as amended, supplemented or otherwise modified from time to time
in accordance with their terms, the "Mortgages"), duly executed by
---------
each party thereto, in each case together with copies of each of the
following items previously furnished to the Collateral Agent, or as
the Administrative Agent may reasonably require in connection with
this Agreement:
(i) evidence that counterparts of the Mortgages have been duly
recorded on or before the day of the initial Advance (or, with
respect to any such Mortgage entered into after the date of the
initial Advance in accordance with this Agreement, on or before
the date of execution and delivery of such Mortgage) in all
filing or recording offices that the Administrative Agent may
deem necessary or desirable in order to create a valid first and
subsisting Lien (other than Permitted Liens) on the property
described therein in favor of the Secured Parties and that all
filing and recording taxes and fees have been paid;
(ii) evidence of the insurance required by the terms of such Mortgage;
(iii) evidence that all other action that the Administrative Agent or
Collateral Agent may deem necessary or desirable in order to
create valid first and subsisting Liens on the property described
in such Mortgage has been taken; and
(iv) an environmental and hazardous substance analyses report in a
form acceptable to each Lender from an environmental consultant
acceptable to each Lender;
(t) ATTORNMENT AND RECOGNITION AGREEMENTS: the Borrower shall have
delivered to the Administrative Agent copies of each attornment and
recognition agreement required by Section 8.1(k).
(u) MATERIAL AGREEMENTS: subject to confidentiality restrictions, the
Administrative Agent shall have received a complete and correct copy,
in form and substance satisfactory to the Administrative Agent, of:
(i) the Expense Allocation Agreement and the services agreement and
form of operating and licensing agreement referred to in Section
9.1(m)(i)(A), in each case (if applicable) as then in effect and
duly executed by the parties thereto; and
(ii) each other contract set forth on Schedule 7.1(dd), as such other
contract is then in effect and as to which the Administrative
Agent shall have requested a copy on or before the Closing Date.
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(v) LITIGATION: there shall exist no action, suit, investigation,
litigation or proceeding pending or threatened in any court or before
any arbitrator or governmental instrumentality affecting any of the
Parent, the Borrower or any of their respective Subsidiaries that:
(i) could have a Material Adverse Effect; or
(ii) purports to affect the legality, validity or enforceability of
this Agreement, any other Loan Document or the consummation of
the transactions contemplated hereby or thereby or challenges any
of the Lenders' rights under this Agreement or any other Loan
Agreement.
(w) NO DEFAULT: no default shall have occurred and be continuing under the
Equipment Acquisition Agreement.
(x) NO MATERIAL ADVERSE CHANGE: there shall have occurred no material
adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower or
any of its Subsidiaries since the date of the most recent audited
financial statements provided to the Lenders, and all information
provided by or on behalf of the Borrower to the Lenders prior to the
date of the initial Advance shall be true and correct in all material
aspects.
(y) CORPORATE AND LIMITED LIABILITY COMPANY DOCUMENTS: the Administrative
Agent shall have received the following, each dated not more than 5
Business Days before the date hereof (unless otherwise specified), in
form and substance satisfactory to the Administrative Agent (unless
otherwise specified):
(i) certified copies of the resolutions of the Board of Directors of
the Borrower and each other Loan Party approving this Agreement
and each other Loan Document to which it is or is to be a party,
and of all documents evidencing other necessary corporate and
limited liability company action and governmental and other third
party approvals and consents, if any, with respect to this
Agreement and each other Loan Document;
(ii) a copy of the charter or limited liability company agreement (as
appropriate) of the Borrower, the Grandparent, the Parent and
each other Loan Party and each amendment thereto, certified (as
of a date reasonably near the date of the initial Advance) by the
Secretary of State of the jurisdiction of its incorporation or
formation as being a true and correct copy thereof;
(iii) a copy of a certificate of the Secretary of State of the
jurisdiction of incorporation or formation of the Borrower, the
Grandparent, the Parent and each other Loan Party, dated
reasonably near the date of the initial Advance,
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listing the charter or limited liability company agreement of
such Person and each amendment thereto on file in his office and
certifying that:
(A) such amendments are the only amendments to such Person's
charter on file in his office;
(B) such Person has paid all franchise taxes to the date of such
certificate; and
(C) such Person is duly incorporated or formed and in good
standing under the laws of the state of incorporation or
formation of such Person.
(iv) a copy of a certificate of the Secretary of State or other
appropriate representative of each state in which each of the
Borrower and each other Loan Party is engaged in any business,
dated reasonably near the date of the initial Advance, stating
that each of the Borrower and each other Loan Party is duly
qualified and in good standing as a foreign corporation in such
state and has filed all annual reports required to be filed to
the date of such certificate;
(v) a certificate of the Borrower, the Parent and each other Loan
Party, signed on behalf of the Borrower, the Parent and such
other Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary, dated the Closing Date (the
statements made in which certificate shall be true on and as of
the Closing Date), certifying as to:
(A) the absence of any amendments to the charter of the
Borrower, or such other Loan Party since the date of the
Secretary of State's certificate referred to in Section
10.1(y)(iii);
(B) a true and correct copy of the bylaws of the Borrower and
such other Loan Party as in effect on the Closing Date;
(C) the due incorporation or formation and good standing of the
Borrower and such other Loan Party as a corporation
organized under the laws of the jurisdiction in which such
Loan Party is incorporated or formed, and the absence of any
proceeding for the dissolution or liquidation of the
Borrower, the Parent or such other Loan Party;
(D) the truth of the representations and warranties of such
Person contained in the Loan Documents as though made on and
as of the Closing Date; and
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(E) the absence of any event occurring and continuing, that
constitutes a Potential Event of Default or Event of
Default;
(vi) a certificate of the Secretary or an Assistant Secretary of the
Borrower, the Parent and each other Loan Party certifying as to
the names and true signatures of the Authorized Officers of the
Borrower, the Parent and such other Loan Party authorized to sign
this Agreement and each other Loan Document to which they are or
are to be parties and the other documents to be delivered
hereunder and thereunder;
(vii) all other documents, instruments, financial information and
opinions from the Borrower, the Grandparent, the Parent, any of
the Borrower's Subsidiaries or EKN (including opinions of counsel
for the Borrower, the Grandparent, the Parent or any such
Subsidiary) as the Administrative Agent and each Lender may
reasonably request, in form and substance satisfactory to the
Administrative Agent and each Lender and their counsel, and which
shall be in full force and effect on the date of the initial
Advance;
(z) INTERCREDITOR AGREEMENT: the Borrower shall have delivered to the
Administrative Agent an amended and restated intercreditor agreement
substantially in the form of Exhibit I, duly executed by Ericsson (as
---------
administrative agent and lender under the Ericsson Loan Agreement) and
the Collateral Agent (as the same may be amended from time to time,
the "Intercreditor Agreement").
-----------------------
(aa) SUPPORT AGREEMENT: the Borrower shall have delivered to the
Administrative Agent a Support Agreement substantially in the form of
Exhibit J, duly executed by the Grandparent and the Borrower (as the
---------
same may be amended from time to time, the "Support Agreement").
-----------------
(bb) FINANCIAL STATEMENTS: the Administrative Agent shall have received
(in a form satisfactory to it) audited consolidated financial
statements of the Grandparent for its most recently completed
financial year end (and for each fiscal quarter thereafter up to and
including March 31, 1998, unaudited financial statements) the most
recent Forms 10-K and 10-Q filed by the Grandparent with the
Securities and Exchange Commission;
(cc) ACKNOWLEDGMENT OF ASSIGNMENT: the Administrative Agent shall have
received from Omnipoint Services a written statement addressed to it
in which Omnipoint Services (i) consents to the assignment by the
Operating Subsidiary party to the Services Agreement of all of its
right, title and interest in and to the Services Agreement (including,
without limitation, the right to receive any monies due thereunder) to
the Collateral Agent pursuant to the Collateral Documents, (ii) agrees
not to cancel or terminate the Services Agreement except upon at least
90 days written notice to the Administrative Agent and (iii) agrees
that the Administrative
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Agent or the Collateral Agent shall be entitled to make any payment or
otherwise perform any obligation or cure any default of the Borrower
or any of its Subsidiaries under the Services Agreement;
(dd) OTHER INFORMATION: the Lenders and the Administrative Agent shall have
received such other information respecting the business, condition
(financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Lender
(through the Administrative Agent) may from time to time reasonably
request;
(ee) EKN CONDITIONS: the Administrative Agent shall:
(i) have received evidence satisfactory to it that Ericsson shall
have received payment equal to not less than 15% of the
purchase price for the Eligible Swedish Goods and Services;
(ii) be satisfied that the Loan Parties shall have complied with such
other conditions precedent as EKN may require;
(ff) EXISTING FINANCE DOCUMENTS: the Administrative Agent shall have
received:
(i) certified copies of:
(A) the Ericsson Loan Agreement; and
(B) all other documents evidencing any indebtedness for borrowed
monies or preferred equity of the Borrower and its
Subsidiaries;
(ii) evidence that all conditions precedent to the Ericsson Amendment
have been waived or met; and
(iii) evidence of the Collateral Agent's succession as Collateral
Agent,
each in form and substance satisfactory to the Administrative Agent;
and
(gg) ENVIRONMENTAL: the Administrative Agent shall have received certified
copies of the current phase 1 audits and other environmental reports
and documents listed in Schedule 7.1(bb)(i) hereto.
SECTION 10.2 FINANCIAL CLOSE.
All of the instruments referred to in Section 10.1, unless otherwise specified,
shall be delivered to the Administrative Agent at Mayer, Brown & Platt, 1675
Broadway, New York, New York 10019-5820,
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in sufficient counterparts, for each Lender and, unless otherwise specified,
shall be in form and substance satisfactory to the Lenders.
ARTICLE 11. ADDITIONAL CONDITIONS TO ADVANCES
SECTION 11.1 CONDITIONS TO ALL ADVANCES.
The obligation of each Lender to participate in any Advance, including the
initial Advance, shall also be subject to the satisfaction of the conditions
precedent that on the date of such Advance:
(a) the Administrative Agent shall have received a properly completed
Disbursement Claim signed by an Authorized Officer of each of the
Borrower and Ericsson and confirming the accuracy of the statements
applicable to the Borrower in clause (b);
(b) each of the representations and warranties of the Borrower and each
other Loan Party contained in this Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in
connection with this Agreement or any other Loan Document is true and
correct in all material respects immediately prior to, and after
giving effect to, the making of such Advance and the application of
the proceeds therefrom, as though made on and as of such date (except
to the extent of changes resulting from transactions contemplated or
permitted by this Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date);
(c) no event has occurred and is continuing, or would result from making
such Advance or from the application of the proceeds therefrom, that
constitutes an Event of Default, Potential Event of Default or default
under any other Loan Document;
(d) no change shall have occurred in any law or regulations thereunder or
interpretations thereof that in the reasonable opinion of any Lender
would make it illegal for such Lender to make such Advance and no
order of any court or Governmental Body has been entered prohibiting
the consummation of the transactions contemplated by the Loan
Documents;
(e) each Lender shall have received such statements in form and substance
reasonably satisfactory to such Lender as such Lender shall require
for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal
Reserve System;
(f) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent
may reasonably request;
(g) the Administrative Agent shall:
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(i) have received evidence reasonably satisfactory to the
Administrative Agent showing the aggregate amount of Eligible
Swedish Goods and Services that have been incurred by the
Borrower and its Subsidiaries through the date of such Advance;
(ii) have received the EKN Guarantee for each previous Advance made at
least one month before the date of the requested Advance, each
duly executed by EKN and in form and substance satisfactory to
each Lender; and
(iii) have received evidence satisfactory to it that all premia and
fees, if any, outstanding to EKN in respect of the EKN Guarantees
for each previous Advance shall have been unconditionally and
irrevocably paid in full; and
(h) no events or circumstances described in the first paragraphs before
the provisos to Section 12.1(f)(i), (f)(ii) of (f)(iii) in relation to
any Grandparent Debt Default shall have occurred and be subsisting.
ARTICLE 12. EVENTS OF DEFAULT; ACCELERATION; ETC
SECTION 12.1 EVENTS OF DEFAULT AND ACCELERATION.
Upon the occurrence and during the continuance of any of the following events:
(a) Payment Default: the Borrower shall fail to pay any principal of the
---------------
Advances, any fee, any interest on the Advances or any other sum
hereunder or under any of the other Loan Documents to which it is a
party, in any such case within three days after the date on which the
same shall become due and payable; or
(b) Specified Non-Monetary Default: the Borrower shall fail to perform or
------------------------------
observe any term, covenant or agreement contained in Article 9 or
Section 8.3 provided that the Borrower shall have the right to comply
with Section 8.3 by procuring contributions to the Borrower, prior to
the delivery of the financial statement or other report to the
Administrative Agent disclosing the existence of such default, the net
proceeds of additional cash equity contributions to the Borrower to
the extent that if such equity were included in Revenue, EBITDA or
Adjusted EBITDA, the Borrower would be in compliance with Sections
8.3(a) to (f), as the case may be; or
(c) Other Non-Monetary Defaults: any Loan Party shall fail to perform any
---------------------------
term, covenant or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere in this Section
12.1) and such failure shall continue for a period of 30 days; or
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(d) Representations: any representation or warranty made by any Loan Party
---------------
or any of its Subsidiaries (or any of its officers) under this
Agreement or any of the other Loan Documents or in any certificate,
statement, document or instrument delivered pursuant to or in
connection with this Agreement or any Loan Document shall not be
correct in any material respect upon the date when made or confirmed
or deemed to have been made, confirmed or repeated; or
(e) Insolvency Event: an Insolvency Event shall occur in respect of any
----------------
Loan Party or any shareholder of the Borrower; or
(f) Cross Default/Acceleration: in respect of any Indebtedness of
--------------------------
Grandparent, Parent, the Borrower or any of its Subsidiaries which is
in an aggregate principal amount of at least $25,000,000 (but
excluding Indebtedness outstanding hereunder or owing by any License
Subsidiary to the FCC):
(i) the Grandparent, Parent, the Borrower or any of its Subsidiaries
(as the case may be) shall fail to pay any principal of, premium
or interest on or any other amount payable in respect of any such
Indebtedness, when such principal, premium, interest or other
amount becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); provided
--------
that an Event of Default shall be deemed not to have occurred in
respect of any Grandparent Debt Default referred to in this sub-
clause (i) if:
(A) (i) the amount available to be contributed pursuant to
Section 1 of the Support Agreement (the "Remaining
---------
Amount") is zero; or
------
(ii) if the Remaining Amount is greater than zero, the
Grandparent, an Affiliate of the Grandparent (other than
the Borrower or any of its Subsidiaries) or a third
party contributes under the Support Agreement the
Remaining Amount within 15 days of the occurrence of the
Grandparent Debt Default; or
(iii) the Borrower provides a replacement for the Grandparent
(other than the Borrower or any of its Subsidiaries) of
investment grade credit quality which commits to provide
the Remaining Amount or otherwise provides a letter of
credit or standby commitment to provide such Remaining
Amount acceptable to the Administrative Agent and the
Required Lenders; or
(iv) the ratio of (x) Consolidated Indebtedness of the
Borrower and its Subsidiaries as of the end of the most
recent Fiscal Quarter ended to (y) EBITDA of the
Borrower for such Fiscal
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Quarter multiplied by four, is no greater than 8 to 1,
and the Borrower continues to meet such ratio at the end
of each succeeding Fiscal Quarter; or
(B) The Lenders shall have, following a prior written request by
the Borrower, agreed that, after taking into consideration:
(i) the financial status and condition of the Borrower and
its business plan;
(ii) any contractual rights and obligations of the Borrower
(including any management or operating agreements
between the Borrower and its affiliates);
(iii) the Grandparent has paid in accordance with the
Support Agreement the maximum amount payable by it at
any time under the Support Agreement;
(iv) the Grandparent having been released from its
obligations under the Support Agreement; and
(v) there being no Potential Events of Default or Events of
Default subsisting,
(in each case, at the date of the request); or
(ii) any other event shall occur or condition shall exist under any
agreement or instrument relating to any such Indebtedness, if the
effect of such event or condition is to accelerate, or to permit
the acceleration of, the maturity of such Indebtedness or
otherwise to cause, or to permit the holder thereof to cause,
such Indebtedness to mature; provided that an Event of Default
--------
shall be deemed not to have occurred in respect of any
Grandparent Debt Default referred to in this sub-clause (ii) if:
(A) (i) on the day which such Grandparent Default occurs, the
Remaining Amount is zero; or
(ii) if the Remaining Amount is greater than zero, the
Grandparent, an Affiliate of the Grandparent (other
than the Borrower or any of its Subsidiaries) or a
third party contributes under the Support Agreement the
Remaining Amount within 180 days (excluding any grace
periods) of the occurrence of such Grandparent Debt
Default; or
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(iii) within 180 days of the occurrence of such Grandparent
Debt Default, the Borrower provides a replacement for
the Grandparent (other than the Borrower or any of its
Subsidiaries) of investment grade credit quality which
commits to provide the Remaining Amount or otherwise
provides a letter of credit or standby commitment to
provide such Remaining Amount acceptable to the
Administrative Agent and the Required Lenders; or
(iv) the Borrower demonstrates to the Lenders within 180
days of the occurrence of such Grandparent Debt Default
that, on the last day of the most recently ended Fiscal
Quarter or a Fiscal Quarter ending within 180 days of
the occurrence of such Grandparent Debt Default, the
ratio of (x) Consolidated Indebtedness of the Borrower
and its Subsidiaries as of the end of such Fiscal
Quarter to (y) EBITDA of the Borrower for such Fiscal
Quarter multiplied by four, is no greater than 8 to 1,
and the Borrower continues to meet such ratio at the
end of each succeeding Fiscal Quarter; or
(v) subject to Section 12.1(f)(iii), such Grandparent Debt
Default is cured or the relevant holder of the
Indebtedness of the Grandparent shall have, within
180 days (excluding any grace periods) of the
occurrence of the relevant event or circumstance
referred to in the first paragraph of Section
12.1(f)(ii) waived any breach of the agreement or
instrument giving rise to the acceleration or right of
such holder to accelerate the maturity of such
Indebtedness and the Borrower shall have delivered to
the Lender a written representation within 5 Business
Days of such waiver being granted stating the terms of
such waiver and providing sufficient detail to
establish that any conditions attaching to such waiver
will not have a material adverse effect on the
Grandparent's ability to meet its obligations under the
Support Agreement; or
(B) the Lenders shall have, following a prior written request by
the Borrower, agreed that, after taking into consideration:
(i) the financial status and condition of the Borrower and
its business plan;
(ii) any contractual rights and obligations of the Borrower
(including any management or operating agreements
between the Borrower and its affiliates);
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(iii) the Grandparent has paid in accordance with the
Support Agreement the maximum amount payable by it at
any time under the Support Agreement;
(iv) the Grandparent having been released from its
obligations under the Support Agreement; and
(v) there being no Potential Events of Default or Events of
Default subsisting,
(in each case, at the date of the request); or
(iii) any such Indebtedness shall be declared to be due and payable or
required to be prepaid or redeemed, purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Indebtedness
shall be required to be made (other than by a regularly
scheduled required prepayment or redemption, or a Permitted
Redemption), in each prior to the stated maturity thereof
provided that an Event of Default shall be deemed not to have
occurred in respect of any Grandparent Debt Default referred to
in this sub-clause (iii) if;
(i) the Remaining Amount is zero; or
(ii) if the Remaining Amount is greater than zero, the
Grandparent, an Affiliate of the Grandparent (other
than the Borrower or any of its Subsidiaries) or a
third party contributes under the Support Agreement the
Remaining Amount within 15 days of the occurrence of
the Grandparent Debt Default; or
(iii) the Borrower provides a replacement for the Grandparent
(other than the Borrower or any of its Subsidiaries) of
investment grade credit quality which commits to
provide the Remaining Amount or otherwise provides a
letter of credit or standby commitment to provide such
Remaining Amount acceptable to the Administrative Agent
and the Required Lenders; or
(iv) the ratio of (x) Consolidated Indebtedness of the
Borrower and its Subsidiaries as of the end of the most
recent Fiscal Quarter ended to (y) EBITDA of the
Borrower for such Fiscal Quarter multiplied by four, is
no greater than 8 to 1, and the Borrower continues to
meet the ratio at the end of each succeeding Fiscal
Quarter; or
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(A) The Lenders shall have, following a prior written request by
the Borrower, agreed that, after taking into consideration:
(i) the financial status and condition of the Borrower and
its business plan;
(ii) any contractual rights and obligations of the Borrower
(including any management or operating agreements
between the Borrower and its affiliates);
(iii) the Grandparent has paid in accordance with the Support
Agreement the maximum amount payable by it at any time
under the Support Agreement;
(iv) the Grandparent having been released from its
obligations under the Support Agreement; and
(v) there being no Potential Events of Default or Events of
Default subsisting,
(in each case, at the date of the request); or
(g) Judgment: any judgment or order of a court of competent jurisdiction
--------
for the payment of money in excess of $1,000,000 (excluding any
portion thereof that an insurance company of recognized standing and
creditworthiness has agreed to pay), or any material non-monetary
judgment or order of a court of competent jurisdiction, shall be
rendered against the Borrower and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order; or
(ii) there shall be any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) Invalidity of Loan Documents: any of the Loan Documents shall be
----------------------------
canceled, terminated, revoked or rescinded otherwise than in
accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Lenders, or any action at law,
suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf
of any Loan Party or any of its or their stockholders, or any court or
any other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment,
order, decree or ruling to the effect that, any one or more of the
Loan Documents, is illegal, invalid or unenforceable in accordance
with the terms thereof; or
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(i) ERISA: with respect to any Guaranteed Pension Plan:
-----
(i) an ERISA Event shall have occurred and the Required Lenders shall
have determined in their reasonable discretion that such event
reasonably could be expected to result in liability of the
Borrower to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $250,000 and such event in the
circumstances occurring reasonably could constitute grounds for
the termination of such Guaranteed Pension Plan by the PBGC or
for the appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed Pension Plan; or
(ii) a trustee shall have been appointed by the United States
District Court to administer such Plan; or
(iii) the PBGC shall have instituted proceedings to terminate such
Guaranteed Pension Plan; or appointed a trustee to administer or
liquidate any plan; or
(j) Attachment: the Borrower or any of its Subsidiaries shall be the
----------
subject of writs of attachment or garnishment and the like that might
have a Material Adverse Effect and that are unstayed for a period of
30 consecutive days or any such attachment shall not have been
bonded over within 30 days of the entry thereof; or
(k) Licenses: the FCC or any other Governmental Body shall cancel, revoke,
--------
suspend or fail to renew any FCC License held by any License
Subsidiary relating to:
(i) any right held by any Subsidiary to provide PCS services to any
POPs included in any Permitted BTA, in either case for which the
cancellation, revocation, suspension or failure to renew the FCC
License relating to which could reasonably be expected to have a
Material Adverse Effect; or
(ii) any Permitted BTA for which Eligible Swedish Goods & Services in
excess of $1,000,000 have been incurred, in either case except
for any C-Block General License Revocation Event or Proposed C-
Block General License Revocation Event; or
(l) Licenses: the FCC or any other Governmental Body shall commence any
--------
proceeding to cancel, revoke or suspend any FCC License held by any
License Subsidiary relating to BTAs described in clause (k) above,
which proceeding:
(i) could reasonably be expected to have a Material Adverse Effect;
and
(ii) has not been stayed or enjoined within five Business Days after
the commencement of any such proceeding, in either case except
for any C-Block
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General License Revocation Event or Proposed C-Block General
License Revocation Event; or
(m) FCC Indebtedness: the Grandparent or any of its Affiliates shall fail
----------------
to pay any amount when due of Indebtedness owed to the FCC with
respect to any FCC License or shall otherwise default on such
Indebtedness, if such failure to pay or default constitutes or would
with the passage of time constitute a default under any Indebtedness
owing to the FCC in respect of any other FCC Licenses in respect of a
Permitted BTA; or
(n) Other Indebtedness to FCC: any License Subsidiary shall fail to pay
-------------------------
when due amounts owing to the FCC relating to BTAs described in clause
(k) above unless:
(i) such failure to pay can reasonably be expected, in the reasonable
judgment of the Required Lenders, not to result in any
cancellation, revocation or suspension of such FCC License; or
(ii) the Borrower has obtained a stay or injunction against any action
by the FCC to cancel, revoke or suspend such FCC License
notwithstanding such failure to pay and such injunction or stay
shall then be in effect; or
(o) Perfection of Security: the Collateral Agent shall cease to have a
----------------------
valid and perfected first-priority Lien on any Collateral securing any
Loan Party's obligations under any Loan Document, or any Loan Party
shall so assert (subject, however, to Permitted Liens entitled to
priority in accordance with the terms of the Loan Documents); or
(p) Change of Control: at any time any of the following shall occur:
-----------------
(i) the Ownership Fraction shall be less than 51%; or
(ii) all of each series and class of issued and outstanding shares of
Stock of the Borrower and each of its Subsidiaries shall cease to
be pledged as security for the obligations of the Borrower, the
other Loan Parties and their respective Subsidiaries hereunder
and under the other Loan Documents; or
(q) Material Adverse Change: there shall occur in the opinion of the
-----------------------
Required Lenders any change in the business, condition (financial or
otherwise), operations, performance, properties or prospects of any
Loan Party that could reasonably be expected to have a material
adverse effect on the ability of such Loan Party to perform its
obligations under the Loan Documents to which it is a party; or
(r) Equipment Acquisition Agreement: OCI, the Borrower or any of its
-------------------------------
Subsidiaries shall default, after any applicable grace period, under
any equipment-acquisition agreement (including the Equipment
Acquisition Agreement) providing for the purchase of more than
$10,000,000 in aggregate purchase price of equipment or other goods,
from any Person, or such Person shall so allege in writing; or
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(s) EKN: the Borrower fails to pay any premium or other sum due to EKN
---
with respect to an EKN Guarantee within five Business Days of written
demand by the Administrative Agent,
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders
shall, by notice to the Borrower,
(i) declare the obligations of the Lenders to make Advances to be
terminated, whereupon the same shall forthwith terminate; and/or
(ii) declare the Advances, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon the Advances, all such
interest and all such other amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by
the Borrower;
provided that upon the occurrence of an Insolvency Event described in
--------
subsection (e) above, (A) the obligations of the Lenders to make Advances
shall automatically be terminated and (B) the Advances then outstanding,
all such interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
ARTICLE 13. THE ADMINISTRATIVE AGENT
SECTION 13.1 AUTHORIZATION AND ACTION.
Each Lender appoints the Administrative Agent to act as its agent in connection
herewith and the other Loan Documents and authorizes the Administrative Agent to
exercise such rights, powers and discretions under this Agreement and the other
Loan Documents as are specifically delegated to the Administrative Agent by the
terms hereof and thereof, together with such rights, powers and discretion as
are reasonably incidental thereto. As to any matters not expressly provided for
by the Loan Documents, the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders; provided that the Administrative
--------
Agent shall not be required to take any action:
(a) that exposes the Administrative Agent to personal liability or that is
contrary to this Agreement or applicable law; or
(b) until the Administrative Agent is fully indemnified by the Lenders for
such action, in form and substance satisfactory to the Administrative
Agent; or
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(c) until the Administrative Agent first receives instructions to take
such action from the Required Lenders.
SECTION 13.2 ADMINISTRATIVE AGENT'S RELIANCE, ETC.
Neither the Administrative Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or omitted to be taken by it or
them under or in connection with the Loan Documents, except for its or their own
gross negligence or willful misconduct. Without limitation of the generality of
the foregoing, the Administrative Agent:
(a) may treat any Lender that has participated in the making of any
Advance as the holder of the portion of Indebtedness resulting
therefrom until the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by such Lender, as assignor,
and an assignee, as provided in Section 14.9;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel,
accountants or experts;
(c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection
with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions
of any Loan Document on the part of any Loan Party or to inspect the
property (including the books and records) of any Loan Party;
(e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest
created or purported to be created under or in connection with, any
Loan Document or any other instrument or document furnished pursuant
thereto;
(f) shall incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate (including any
Disbursement Claim) or other instrument or writing (which may be by
telegram, telecopy, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties;
(g) shall incur no liability as a result of any determination whether the
transactions contemplated by the Loan Documents constitute a "highly
leveraged transaction" within the meaning of the interpretations
issued by the Comptroller of the Currency,
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the Federal Deposit Insurance Corporation and the Board of Governors
of the Federal Reserve System;
(h) may:
(x) assume that:
(i) any representation and/or warranty made by any Loan Party in
connection with this Agreement or any other Loan Document is
true;
(ii) no event which is an Event of Default or Potential Event of
Default has occurred unless it has received a written notice from
a Lender or the Borrower clearly stating that such event exists;
and
(iii) no Loan Party is in breach of or in default under its obligations
under this Agreement or any other Loan Document, unless it has
actual knowledge or actual notice to the contrary;
(iv) assume that the Lending Office of each Lender is that identified
with its signature below (or, in the case of a Lender which
becomes a Lender after the date hereof, at the end of the
Assignment and Acceptance under which it first became a Lender)
until it has received from such Lender a notice designating some
other office of such Lender to replace its Lending Office and act
upon any such notice until the same is superseded by a further
such notice; and
(y) rely upon
(i) as to any matters of fact which might reasonably be expected
to be within the knowledge of any Loan Party, as the case may
be, a certificate signed by an Authorized Officer for the
time being on behalf of such Loan Party;
(ii) any communication or document believed by it to be genuine
and correct.
SECTION 13.3 OBLIGATIONS OF ADMINISTRATIVE AGENT.
The Administrative Agent shall:
(a) promptly inform each Lender of the contents of any notice or document
received by it in its capacity as Administrative Agent from any Loan
Party;
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(b) promptly notify each Lender of the occurrence of any Event of Default
or any Potential Event of Default by the Loan Party under this
Agreement or any other Loan Document which the Administrative Agent
has actual knowledge or actual notice;
(c) save as otherwise provided herein, act as agent hereunder in
accordance with any instructions given to it in writing by the
Required Lenders, which instructions shall be binding on all of the
Lenders;
(d) promptly communicate any claim, notice or demand from a Lender to any
Loan Party which is contemplated by this Agreement or, any other Loan
Document; and
(e) if so instructed by the Required Lenders in writing, refrain from
exercising any right, power or discretion vested in it as agent
hereunder.
SECTION 13.4 DUTY OF INQUIRY.
Notwithstanding anything to the contrary expressed or implied herein, the
Administrative Agent shall not be bound to:
(a) ascertain or inquire as to:
(i) whether or not any representation and/or warranty made by any
Loan Party or Ericsson in connection with this Agreement or any
other Loan Document or the transactions contemplated thereby
(including in a Disbursement Claim) is true or any information
(including any financial statements) delivered pursuant to
Section 8.2 is accurate, complete or in compliance with this
Agreement;
(ii) the occurrence or otherwise of any event which is an Event of
Default or Potential Event of Default;
(iii) the performance by any Loan Party of its obligations under this
Agreement or any other Loan Document; or
(iv) any breach of or default by any Loan Party of or under its
obligations under this Agreement or any other Loan Document;
(b) without prejudice to the provisions of Section 13.7, account to any
Lender for any sum or the profit element of any sum received by it for
its own account; or
(c) disclose to any other person any information relating to any Loan
Party if such disclosure would or might in its opinion constitute a
breach of any law or regulation or be otherwise actionable at the suit
of any person.
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SECTION 13.5 EXCLUSION OF DUTIES AND LIABILITY.
Notwithstanding anything to the contrary express or implied herein, the
Administrative Agent shall not have or be deemed to have:
(a) any obligation other than those for which express provision is made
herein; or
(b) any fiduciary relationship with any party to this Agreement; or
(c) any liability for any loss suffered by any party to this Agreement for
any action or omission taken in respect of this Agreement, whether
before or after the execution of this Agreement, save and except for
where such loss is caused by the gross negligence or wilful misconduct
of the Administrative Agent.
SECTION 13.6 AFFILIATES OF ADMINISTRATIVE AGENT.
The Administrative Agent:
(a) shall, with respect to its Commitments (if any) and, the Advances in
which it has participated (if any) and, in its individual capacity,
have the same rights and powers under the Loan Documents as any other
Lender and may exercise the same as though it were not the
Administrative Agent, and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include the Administrative Agent in its
individual capacity as a Lender (if applicable); and
(b) may, in its individual capacity as a Lender (if applicable), and its
affiliates may, generally engage in any kind of business with, the
Borrower and any of its Affiliates and any Person who may do business
with or own securities of the Borrower or any of its Affiliates, all
as if the Administrative Agent in its individual capacity as a Lender
were not the Administrative Agent and without any duty to account
therefor to the Lenders.
SECTION 13.7 LENDER CREDIT DECISION.
Each Lender:
(a) acknowledges that it has itself been, and will continue to be, solely
responsible for making its own independent appraisal of the
investigations into the financial condition, creditworthiness,
condition, affairs, status and nature of each Loan Party and EKN, and
without reliance upon the Administrative Agent, the Arranger or any
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into
this Agreement;
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(b) acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Arranger or any 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 this Agreement;
(c) warrants to each of the Administrative Agent and the Arranger that it
has not relied and will not hereafter rely on the Administrative Agent
or the Arranger:
(i) to check or inquire on its behalf into the adequacy, accuracy or
completeness of any information provided by any Loan Party or EKN
in connection with any of the Loan Documents or the transactions
therein contemplated (whether or not such information has been or
is hereafter circulated to such Lender, the Arranger of the
Administrative Agent); or
(ii) to assess or keep under review on its behalf the financial
condition, creditworthiness, condition, affairs, status or nature
of any Loan Party or EKN.
SECTION 13.8 INDEMNIFICATION.
(a) Each Lender:
(i) subject to clause (iii) severally will indemnify the
Administrative Agent (to the extent not promptly reimbursed by
the Borrower) from and against such Lender's Commitment
Percentage of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
claims of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Administrative Agent in any
way relating to or arising out of the Loan Documents or any
action taken or omitted by the Administrative Agent under the
Loan Documents;
(ii) shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or claims resulting from the
Administrative Agent's gross negligence or willful misconduct;
and
(iii) without limitation of the foregoing, will reimburse the
Administrative Agent promptly upon demand for its ratable share
of any costs and expenses payable by the Borrower under Section
14.4, to the extent that the Administrative Agent is not promptly
reimbursed for such costs and expenses by the Borrower.
(b) For purposes of this Section 13.8, the Lenders' respective ratable
shares of any amount shall be determined, at any time, according to
the sum of:
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(i) the aggregate principal amount of the Advances outstanding at
such time and owing to the respective Lenders; and
(ii) the aggregate unused portions of their respective Commitments.
(c) The failure of any Lender to reimburse the Administrative Agent
promptly upon demand for its ratable share of any amount required to
be paid by the Lenders to the Administrative Agent as provided herein
shall not relieve any other Lender of its obligation hereunder to
reimburse the Administrative Agent for its ratable share of such
amount, but no Lender shall be responsible for the failure of any
other Lender to reimburse the Administrative Agent for such other
Lender's ratable share of such amount.
(d) Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreements and obligations of each Lender contained in
this Section 13.8 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the other
Loan Documents.
(e) Each of the Lenders agrees that it will not assert or seek to assert
against any director, officer or employee of the Administrative Agent
any claim it might have against any of them in respect of the matters
referred to in this Agreement.
SECTION 13.9 REMOVAL; RESIGNATION OF ADMINISTRATIVE AGENT.
The Administrative Agent may resign at any time without assigning any reason
therefor by giving 30 days written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by the Required
Lenders.
SECTION 13.10 REPLACEMENT OF ADMINISTRATIVE AGENT.
(a) Upon any resignation or removal of the Administrative Agent pursuant
to Section 13.9:
(i) the Required Lenders shall have the right to appoint a successor
Administrative Agent;
(ii) if no successor Administrative Agent shall have been so appointed
by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a reputable and
experienced bank or other financial institution organized under
the laws of the United
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Kingdom, any other member of the European Union or, the United
States or of any State thereof.
(b) Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent and upon the execution
and filing or recording of such financing statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may reasonably request, in order
to continue the perfection of the Liens granted or purported to be
granted by the Collateral Documents, such successor Administrative
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from
its duties and obligations under the Loan Documents.
(c) After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Article 13
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement. A
successor Administrative Agent will notify the Borrower of its
appointment promptly after its appointment.
SECTION 13.11 TRANSFERS.
The Administrative Agent shall be entitled to accept:
(a) any Assignment and Acceptance purporting to be duly signed by any
person on behalf of either of the parties thereto; and
(b) any notice purporting to be duly signed by the persons giving such
notice as having been duly signed by such persons,
and the Administrative Agent shall not be bound in any such case to ask for
further evidence of authority or otherwise or be responsible for any loss that
may be occasioned by its failing to do so.
SECTION 13.12 DELEGATION.
The Administrative Agent may, in the execution and exercise of all or any of the
powers, authorities and discretions vested in it by this Agreement or any Loan
Document act by responsible officers or a responsible officer for the time being
of the Administrative Agent and the Administrative Agent may also, whenever it
thinks fit, whether by power of attorney or otherwise, delegate to any person or
persons all or any of the powers, authorities and discretions vested in it by
this Agreement or any such delegation may be made upon such terms and conditions
and subject to such regulations (including power to sub-delegate with the
consent of the Administrative Agent) as the Administrative Agent may think fit
in the interests of the Lenders and provided that the Administrative Agent shall
have exercised reasonable care in the selection of such delegate, it shall not
in any way or to any extent be responsible for any loss incurred by any
misconduct or default on the part of such delegate or sub-
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delegate. The Administrative Agent shall give prompt notice to the Borrower and
the Lenders of the appointment of any delegate as aforesaid and shall procure
that any delegate shall also give prompt notice to the Borrower and the Lenders
of any sub-delegate.
SECTION 13.13 REPRESENTATION BY LENDER.
Each Lender represents and warrants in favor of the Administrative Agent that
either:
(a) it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to receive its portion of any Advance and the
interest thereon; or
(b) it is a bank as defined for the purposes of Section 840A of the Income
and Corporation Taxes Act 1988 and is beneficially entitled to receive
its portion of any Advance and the interest thereon,
and each Lender agrees in favor of the Administrative Agent to notify the Agent
if there is any change in its position from that set out above.
SECTION 13.14 FAILURE BY LENDER TO MAKE ADVANCE.
(a) Unless the Administrative Agent shall have received notice from a
Lender prior to 9.00am on the Business Day prior to any Disbursement
Date that such Lender will not make available to the Administrative
Agent such Lender's Commitment Percentage of the Advance to be made on
such Disbursement Date, the Administrative Agent may assume that such
Lender has made such Commitment Percentage of the Advance available to
the Administrative Agent on the date of such Advance in accordance
with Section 2.5 and the Administrative Agent may, in reliance upon
such assumption, make available to the Borrower on such date a
corresponding amount.
(b) If and to the extent that such Lender shall not have so made such
Commitment Percentage of the Advance available to the Administrative
Agent, such Lender and the Borrower severally agree to repay or pay to
the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid
to the Administrative Agent, at an interest rate equal to the
Administrative Agent's cost of funds for providing such amount to the
Borrower from the date of making of the relevant Advance until receipt
of such funds by the Administrative Agent.
(c) If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such
Lender's Commitment Percentage of such Advance for the purposes of
this Agreement.
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SECTION 13.15 FAILURE OF BORROWER TO MAKE PAYMENT.
Unless the Administrative Agent shall have received notice from the Borrower
prior to the date on which any payment is due and owing to the Lenders hereunder
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Lender on such due date an amount
equal to the amount then due such Lender. If and to the extent the Borrower
shall not have so made such payment in full to the Administrative Agent, each
Lender shall repay to the Administrative Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Administrative Agent, at the Federal Funds Rate.
ARTICLE 14. MISCELLANEOUS
SECTION 14.1 AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement or any other Loan
Document, nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Required Lenders and approved by EKN, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that:
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(a) no amendment, waiver or consent shall, unless in writing and signed by
all the Lenders and approved by EKN, become effective to do any of the
following at any time:
(i) waive any of the conditions specified in Article 11 or, in the
case of the initial Advance, Article 10;
(ii) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Advances, or the number of
Lenders, that shall be required for the Lenders or any of them to
take any action hereunder;
(iii) release any Collateral, other than as contemplated by the Loan
Documents;
(iv) permit the creation, incurrence, assumption or existence of any
Lien on any item of Collateral to secure any obligations other
than obligations owing to the Lenders, the Collateral Agent and
the Administrative Agent under the Loan Documents and other than
Indebtedness owing to any other Person;
(v) amend this Section 14.1 or 14.7;
(vi) amend the Commitments of the Lenders or subject the Lenders to
any additional obligations;
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(vii) reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder; or
(viii) postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable
hereunder;
(b) no amendment, waiver or consent shall, unless in writing and signed by
the Administrative Agent, the Lenders required above to take such
action and EKN, affect the rights or duties of the Administrative
Agent under this Agreement or any other Loan Document; and
(c) no amendment, waiver or consent shall, unless in writing and signed by
the Collateral Agent in addition to the Lenders required to take such
action and EKN above, adversely affect the rights or duties of the
Collateral Agent under any Loan Document.
SECTION 14.2 NOTICES, ETC.
(a) All notices and other communications provided for hereunder shall be
in writing (including telegraphic, telecopy, telex or cable
communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered,
(i) if to the Borrower, at:
Omnipoint MB Holdings, LLC
16 Wing Drive
Cedar Knolls, New Jersey 07927
Attn: Mr. Harry Plonskier
(fax no. 973-290-2539)
with copies to:
Omnipoint Corporation
3 Metro Center
Bethesda, MD 20814
Attn: Bradley E. Sparks
Piper & Marbury, L.L.P.
1200 19th Street, N.W.
Washington, DC 20036
Attn: Edwin Martin, Esq.
(fax no. (202) 861-6317)
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(ii) if to any Lender, at its Lending Office provided in writing by
the Lender; and
(iii) if to the Administrative Agent; at:
Bank of America International Limited
1 Alie Street
London E1 8DE
United Kingdom
Attn: Loans Agency
Facsimile: 44 181 313 2149
Telephone: 44 181 313 2141
or, as to each party, at such other address as shall be designated by
such party in a written notice to the other parties.
(b) All such notices and communications shall, when mailed, telegraphed,
telecopied, telexed or cabled, be effective when deposited in the
mails, delivered to the telegraph company, transmitted by telecopier,
confirmed by telex answerback or delivered to the cable company,
respectively, except that notices and communications to the
Administrative Agent pursuant to Article 2, 3 or 13 shall not be
effective until received by the Administrative Agent.
(c) Any agreement of the Administrative Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative
Agent and the Lenders shall be entitled to rely on the authority of
any Person purporting to be a Person authorized by the Borrower to
give such notice and the Administrative Agent and the Lenders shall
not have any liability to the Borrower or other Person on account of
any action taken or not taken by the Administrative Agent or the
Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Advances shall not be affected
in any way or to any extent by any failure by the Administrative Agent
and the Lenders to receive written confirmation of any telephonic or
facsimile notice or the receipt by the Administrative Agent and the
Lenders of a confirmation which is at variance with the terms
understood by the Administrative Agent and the Lenders to be contained
in the telephonic or facsimile notice.
SECTION 14.3 NO WAIVER; REMEDIES.
No failure on the part of any Lender or the Administrative Agent to exercise,
and no delay in exercising, any right hereunder or any other Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
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SECTION 14.4 COSTS; EXPENSES.
(a) The Borrower will pay on demand:
(i) all fees and reasonable expenses that are incurred in connection
with any necessary or desirable filings or recordations by the
Arranger, the Administrative Agent or the Collateral Agent in
connection with this Agreement, the other Loan Documents and the
transactions contemplated hereby and thereby, whether or not any
such transactions are consummated;
(ii) all ongoing costs, including, without limitation, all reasonable
legal fees and charges, recording costs and related taxes or
charges, filing fees, costs and expenses of the Arranger,
Administrative Agent and the Lenders related to: (A) the
enforcement of the Loan Documents, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally or otherwise;
(B) the perfection, protection or preservation of any of their
respective rights or interests under the Loan Documents or to or
in the Collateral; (C) the administration of this Agreement or
any other Loan Document; (D) any amendments, waivers or
supplements related to this Agreement and the other Loan
Documents; and (E) of the Administrative Agent in complying with
Section 4.1.
(iii) to the extent not paid pursuant to clause (i) above, all out-of-
pocket costs and expenses of the Collateral Agent (including
allocated costs and reasonable expenses of in-house counsel and
legal staff) in connection with the preparation, execution,
delivery, performance, administration, enforcement, modification
and amendment of this Agreement, the Intercreditor Agreement, the
Collateral Documents, the Guaranties and/or any other Loan
Document at any time, including without limitation the reasonable
fees and expenses of counsel (including reasonable allocated
costs and expenses of in-house counsel and legal staff) and the
costs and expenses incurred by the Collateral Agent in the course
of performing its duties and obligations as Collateral Agent,
whether or not the transactions contemplated hereby are
contemplated;
(iv) all reasonable legal fees and expenses relating to the matters
described in clause (ii) above incurred by the Administrative
Agent or a Lender if a Potential Event of Default shall have
occurred and be continuing under this Agreement; and
(v) all reasonable legal fees and expenses relating to the matters
described in clause (ii) above incurred by any Lender or an
Affiliate thereof or for which such Lender would have an
indemnification obligation (whether or not contingent on non-
payment thereof by the Borrower) under this Agreement.
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(b) In making any demand pursuant to sub-clause (ii)(E) above, the
Administrative Agent shall set out in reasonable detail (to the extent
it is provided with such detail by EKN) its computations for the
amount demanded.
(c) If the Borrower fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including fees and
expenses of counsel and indemnities, such amount may be paid on behalf
of the Borrower by the Administrative Agent or any Lender, in its sole
discretion.
SECTION 14.5 INDEMNITIES.
(a) The Borrower will indemnify each of the Arranger, each Lender, the
Collateral Agent, the Administrative Agent and their respective
affiliates and their officers, directors, employees, agents and
advisors (each, an "Indemnified Party") and hold each Indemnified
-----------------
Party harmless from and against any and all claims, damages, losses,
liabilities and expenses (including reasonable fees and expenses of
counsel and, with respect to the Collateral Agent, reasonable
allocated costs and expenses of in-house counsel and legal staff) that
may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with:
(A) this Agreement and any other Loan Documents, any of the
transactions contemplated herein or therein or the actual or
proposed use of the proceeds of the Advances; or
(B) the actual or alleged presence of Materials of Environmental
Concern on any property of the Borrower or any environmental
proceeding relating in any way to the Borrower,
except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct.
(b) In the case of any investigation, litigation or other proceeding to
which the indemnity in this Section 14.5(a) applies, the indemnity
shall be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any
Indemnified Party is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated.
(c) The Borrower also shall not to assert any claim against the
Administrative Agent, the Collateral Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or
otherwise
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relating to this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(d) If any payment of principal of any Advance is made by the Borrower to
or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of any repayment or,
prepayment or acceleration of the maturity of the Advances pursuant to
Section 12.1 or for any other reason, the Borrower shall pay to the
Administrative Agent for the account of such Lender any loss, cost or
expense (including loss of anticipated profit) that any Lender may
sustain or incur as a consequence of the making of any payment of an
Advance on a day that is not the last day of the applicable Interest
Period with respect thereto.
(e) The Borrower shall indemnify each Lender against any loss, cost or
expense incurred by any Lender as a result of any failure to fulfill
on or before the date specified in any Disbursement Claim for a
requested Advance the applicable conditions set forth in Articles 10.1
and 11.1, including any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund its
participation in such requested Advance.
(f) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 14.5 shall survive the payment in full of
principal and interest hereunder.
SECTION 14.6 RIGHT OF SET-OFF.
Upon (a) the occurrence and during the continuance of any Event of Default and
(b) the making of the request specified by Section 12.1 to authorize the
Administrative Agent to declare, or the Administrative Agent's declaration of,
the Advances to be due and payable pursuant to the provisions of Section 12.1,
each Lender and each of its Affiliates is authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and otherwise apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this
Agreement, irrespective of whether such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Administrative Agent and the Borrower after any
such set-off and application; provided that the failure to give such notice
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shall not affect the validity of such set-off and application. The rights of
each Lender and its Affiliates under this Section 14.6 are in addition to other
rights and remedies (including other rights of set-off) that such Lender and its
Affiliates may have.
SECTION 14.7 SHARING OF PAYMENTS, ETC.
(a) Subject to clause (b), if:
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(i) any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Advances owing to it (other than
pursuant to Section 6.2, 6.3 or 14.7(b)) in excess of its ratable
share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Advances owing to them as
shall be necessary to cause such purchasing Lender to share the
excess payment ratably with each of them;
(ii) all or any portion of an excess payment referred to in clause (b)
is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender
shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (A) the
amount of such Lender's required repayment to (B) the total
amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered.
(b) The Borrower agrees that any Lender purchasing a participation
pursuant to paragraph (a) from another Lender pursuant to this Section
14.7 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to
such participation as fully as if such Lender were the direct creditor
of the Borrower in the amount of such participation.
SECTION 14.8 BINDING EFFECT.
This Agreement shall become effective when it shall have been executed by the
Borrower and the Administrative Agent and when the Administrative Agent shall
have been notified by each Lender that such Lender has executed it and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent, each Lender, the Collateral Agent, EKN and each of their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of the Lenders. Section 14.4(d), insofar as it relates to the
Collateral Agent, and Section 9.1(q) also shall inure to the benefit of each
lender that at any time is a party to the Intercreditor Agreement.
SECTION 14.9 ASSIGNMENTS AND PARTICIPATIONS.
(a) Subject to the EKN General Conditions, the prior approval of EKN and
the prior written consent of the Administrative Agent (which, in the
case of the Administrative Agent, shall not be unreasonably withheld),
each Lender may assign to one or more banks or other entities
(including any trust or other Person in connection with a
securitization or monetization of the Advances or other indirect
raising of capital) all or a portion of its rights and obligations
under this Agreement (including all or a
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portion of its Commitment or Commitments and/or portions of Advances
owing to it); provided that:
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(i) each such assignment of any Commitments shall be of a uniform,
and not a varying, percentage of all rights and obligations under
and in respect of all Commitments;
(ii) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of
a Lender's rights and obligations under this Agreement, the
amount of the Commitment and/or portions of Advances of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than
$5,000,000 and shall be an integral multiple of $1,000,000;
(iii) the parties to each such assignment shall:
(A) execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with a processing and recordation fee
of $2,500; and
(B) deliver a copy of such Assignment and Acceptance to the
Borrower at the time it delivers a copy to the
Administrative Agent; and
(iv) unless the Borrower shall have consented thereto, no such
assignment of undrawn Commitments shall be made:
(A) except to a Person that shall have represented that it has a
combined capital and surplus in excess of $50,000,000; and
(B) except to a Person, other than a commercial bank or other
financial institution, that shall have represented that such
Person is not engaged in, and does not have an Affiliate
that is engaged in, the business of providing PCS
telecommunications services to the public.
(b) Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in such Assignment and Acceptance:
(i) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder and under the
Intercreditor Agreement have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a
Lender hereunder and thereunder; and
(ii) the Lender assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this
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Agreement and the Intercreditor 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 Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument
or document furnished pursuant hereto;
(ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower
of any of its obligations under this Agreement or any other
instrument or document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, the Intercreditor Agreement and each other Loan
Document, together with copies of the financial statements
referred to in Section 10.1(bb) and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and
Acceptance;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent or the Arranger, such assigning Lender 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 this
Agreement;
(v) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement as are delegated to
the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto;
(vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this
Agreement and the Intercreditor Agreement are required to be
performed by it as a Lender;
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(vii) such assignee makes the representations set forth in subsection
(a)(iv) above and in Section 13.13; and
(viii) such assignee confirms that it is bound by the confidentiality
provisions set forth in Section 14.14.
(d) The Administrative Agent shall maintain at its address referred to in
Section 14.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and portions of the
principal amount of the Advances owing to, each Lender from time to
time (the "Register"). The entries in the Register shall be
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conclusive and binding for all purposes, absent manifest error, and
the Borrower, the Administrative Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. 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, the Administrative Agent shall, if
such Assignment and Acceptance has been completed and is substantially
in the form of Exhibit C,
---------
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register; and
(iii) give prompt notice thereof to the Borrower.
(f) Any Lender may, in connection with any assignment or proposed
assignment pursuant to this Section 14.9, disclose to the assignee or
participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the
--------
assignee or participant or proposed assignee or participant shall
agree to preserve the confidentiality of any Confidential Information
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including its Commitment
Percentage in the Advances) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
(h) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time assign all or a portion of its rights and
obligations hereunder to EKN in accordance with the EKN Documents.
128
<PAGE>
SECTION 14.10 INDEPENDENCE OF THE AGREEMENT.
The Borrower expressly acknowledges that this Agreement constitutes an
obligation on the Borrower's part that is independent and completely separate
from the Equipment Acquisition Agreement and any other supply agreement. The
liability of the Borrower to effect payment of the principal amount and interest
on any Advance and of any other amount to be paid under this Agreement on the
due dates therefor, shall not be conditional upon performance by Ericsson or any
cooperation party of the terms of the Equipment Acquisition Agreement or any
other supply agreement or any related contract and shall not be affected in any
way by any claim which the Borrower may have or might consider that it has
against Ericsson or any cooperating party as aforesaid or by any other reason
whatsoever.
SECTION 14.11 OBLIGATIONS SEVERAL.
The obligations of the Lenders hereunder are several and not joint, and the
failure of any Lender to participate in the making of any Advance shall not
relieve any other Lender of its obligation, if any, hereunder to participate in
the making of such Advance, but no Lender shall be responsible for the failure
of any other Lender to participate in the making of any Advance to be made by
such other Lender on the date of any Advance.
SECTION 14.12 GOVERNING LAW.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of New York.
SECTION 14.13 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery by a Lender, the Arranger or the
Administrative Agent of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement by a Lender, the Arranger or the Administrative
Agent.
SECTION 14.14 CONFIDENTIALITY.
Neither the Administrative Agent, the Arranger nor any Lender shall:
(a) disclose any Confidential Information to any Person without the
consent of the Borrower, other than:
(i) to the Administrative Agent's or such Lender's Affiliates and
their officers, directors, employees, agents, auditors and
advisors and to actual or prospective assignees and participants,
and then only on a confidential basis
129
<PAGE>
and if such prospective assignees and participants undertake to
comply with this Section 14.14 as if it were a Lender;
(ii) as required by any law, rule or regulation or judicial process;
(iii) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking (whether or not
having force of law);
(iv) to EKN, Ericsson or Ericsson Radio Systems; or
(v) to the extent reasonably required in connection with the exercise
of any power or remedy under a Loan Document (except, prior to a
notice of acceleration being served on the Borrower pursuant to
Section 12.1, in connection with a sale of any Loan Document to a
competitor of the Grandparent or any of its Subsidiaries);
(b) and the Borrower shall not, and shall cause its Subsidiaries and
Affiliates not to, disclose the terms of this Agreement, the other
Loan Documents or the transactions contemplated hereby to any Person
without the consent of the other parties hereto, except:
(i) to any other lender that is a party to a Permitted Loan Agreement
(as defined in the Intercreditor Agreement) and that shall have
agreed to be bound by the provisions of this paragraph;
(ii) to the extent that such terms or transactions become generally
available to the public;
(iii) to their respective Affiliates and their officers, directors,
employees, agents, advisors and (in the case of the Lenders) to
actual or prospective assignees and participants, in each case to
the extent that the Administrative Agent, any Lender or the
Borrower deems necessary or appropriate;
(iv) as required by any law, rule or regulation or judicial process;
and
(v) as requested by any state, federal or foreign regulatory
authority.
A reasonable period of time prior to making any disclosure with respect to such
terms and transactions that is permitted under clause (iv) or (v) of the
preceding sentence, the party proposing, or whose Affiliate is proposing, to
make such disclosure will consult with the other party concerning the need for
and scope of any such disclosure.
(c) The Administrative Agent, the Arranger and each Lender:
130
<PAGE>
(a) is entitled to give any information required by EKN and to allow
inspection of the files of the Administrative Agent, the Arranger
or such Lender which relate to this Agreement and the other Loan
Documents and to make copies thereof; and
(b) is entitled to give information to EKN in connection with the
implementation of this Agreement.
(d) EKN and the Collateral Agent may disclose any Confidential Information
as follows:
(i) to any Lender or to the Administrative Agent's or such Lender's
or EKN's Affiliates and their officers, directors, employees,
agents, auditors and advisors and to actual or prospective
assignees and participants, but only on a confidential basis and
if such prospective assignees and participants undertake to
comply with this Section 14.14 as if it were a Lender;
(ii) as required by any law, rule or regulation or judicial process;
(iii) as requested or required by any state, federal or foreign
authority or examiner regulating export credit agencies, banks or
banking (whether or not having force of law);
(iv) to Ericsson or Ericsson Radio Systems; or
(v) to the extent reasonably required in connection with the exercise
of any power or remedy under a Loan Document (except, prior to a
notice of acceleration being served on the Borrower pursuant to
Section 12.1, in connection with a sale of any Loan Document to a
competitor of the Grandparent or any of its Subsidiaries).
SECTION 14.15 CONSENT TO JURISDICTION.
The Borrower irrevocably:
(a) submits to the jurisdiction of any New York state or federal court
sitting in New York City and any appellate court from any thereof in
any action or proceeding arising out of or relating to any Loan
Document;
(b) agrees that all claims in respect of such action or proceeding may be
heard and determined in such New York state or in such federal court;
(c) waives, to the fullest extent that it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding;
131
<PAGE>
(d) consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to such Borrower
at its address specified in Section 14.2; and
(e) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
Nothing in this Section 14.15 shall affect the right of the Administrative Agent
or any Lender to serve legal process in any other manner permitted by law or
affect the right of the Administrative Agent or any Lender to bring any action
or proceeding against any Borrower or its property in the courts of other
jurisdictions.
SECTION 14.16 MATTERS RELATING TO THE COLLATERAL AGENT.
The Borrower will pay the Collateral Agent a fee in an amount, computed as
provided and payable at the times separately agreed to by the Collateral Agent
and the Borrower. In addition, the Borrower will pay on demand all costs and
expenses of the Collateral Agent (including allocated costs and reasonable
expenses of in-house counsel and legal staff) in connection with the
preparation, execution, delivery, performance, administration, enforcement,
modification and amendment of the Intercreditor Agreement, the Borrower Security
Agreement, the Parent Pledge Agreement, the Mortgages and/or any other Loan
Document at any time, including without limitation the reasonable fees and
expenses of counsel (including reasonable allocated costs and expenses of in-
house counsel and legal staff) and the costs and expenses incurred by the
Collateral Agent in the course of performing its duties and obligations as
Collateral Agent.
SECTION 14.17 AMENDMENTS, ETC., TO INTERCREDITOR AGREEMENT.
Neither the Administrative Agent nor the Lenders shall consent to any amendment
or modification of, supplement to, replacement of or substitution for the
Intercreditor Agreement unless either:
(a) the Borrower shall have consented thereto in writing, or
(b) at the time at which such amendment, modification or waiver is entered
into a Potential Event of Default or Event of Default, or any event
that, with the passage of time or giving of notice or both, would
constitute an event of default under any other Permitted Loan
Agreement, shall have occurred and be continuing.
SECTION 14.18 WAIVER OF JURY TRIAL.
Each of the Borrower, the Administrative Agent and the Lenders irrevocably
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to any
of the Loan Documents, the Advances or the actions of the
132
<PAGE>
Administrative Agent or any Lender in the negotiation, administration,
performance or enforcement thereof.
[BALANCE OF PAGE LEFT INTENTIONALLY BLANK]
133
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
OMNIPOINT MB HOLDINGS, LLC
By /s/ Harry Plonskier
------------------------------------------
Title: Vice President
BANK OF AMERICA
INTERNATIONAL LIMITED,
as Administrative Agent
By /s/ [ILLEGIBLE]
------------------------------------------
Title:
BANK OF AMERICA
INTERNATIONAL LIMITED,
as Arranger
By /s/ [ILLEGIBLE]
------------------------------------------
Title:
Commitment Percentage: BANK OF AMERICA
10% NATIONAL TRUST AND SAVINGS
ASSOCIATION,
as a Lender
Lending Office: By /s/ [ILLEGIBLE]
- --------------- ------------------------------------------
Title:
Bank of America National Trust
and Savings Association, London Branch
1 Alie Street
London E1 8DE
UNITED KINGDOM
Attn: Loans Agency
Facsimile: 44 171 634 4641
Telephone: 44 171 634 4700
134
<PAGE>
Commitment Percentage: LLOYDS BANK PLC,
25% as a Lender
Lending Office: By /s/ Mela Dorgan
- --------------- ------------------------------------------
Lloyds Bank Plc Title: Mela Dorgan
Bank House Assistant Vice President
Wine Street Structured Finance
Bristol BS1 2AN DO94
UNITED KINGDOM
Tel: 44 117 923 3310
Fax: 44 117 923 3367 By /s/ Louise Miller
------------------------------------------
Title: Louise Miller
Assistant Vice President
Structured Finance
M256
135
<PAGE>
Commitment Percentage: CIBC WOOD GUNDY PLC,
32.5% as a Lender
Lending Office: By /s/ Cynthia McCahill
- --------------- ------------------------------------------
Title: Cynthia McCahill
CIBC Wood Gundy plc Executive Director
Cottons Centre CIBC Oppenheimer Corp., AS AGENT
Cottons Lane
London SE1 2QL
UNITED KINGDOM
Tel: 44 171 234 6639
Fax: 44 171 234 6865
136
<PAGE>
Commitment Percentage: MERITA BANK PLC,
32.5% as a Lender
Lending Office: By /s/ [ILLEGIBLE]
- --------------- ------------------------------------------
Title: Vice President
Merita Bank Plc - New York Branch
437 Madison Avenue
21st Floor
New York, New York 10022
UNITED STATES OF AMERICA
Tel: 1 212 318 9563
Fax: 1 212 421 4420
137
<PAGE>
SCHEDULE 8.3(A)
REVENUE
-------
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING REVENUE
- ------------------------------- ----------
<S> <C>
June 30, 1998 100,000
September 30, 1998 800,000
December 31, 1998 1,600,000
March 31, 1999 3,400,000
June 30, 1999 5,100,000
September 30, 1999 6,800,000
December 31, 1999 8,600,000
March 31, 2000 11,800,000
June 30, 2000 15,000,000
September 30, 2000 18,200,000
December 31, 2000 21,400,000
March 31, 2001 25,500,000
June 30, 2001 and thereafter 29,600,000
</TABLE>
138
<PAGE>
SCHEDULE 8.3(C)
LEVERAGE RATIO (ADJUSTED EBITDA)
--------------------------------
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING LEVERAGE RATIO
- ----------------------- --------------
<S> <C>
December 31, 2000 12.0
March 31, 2001 12.0
June 30, 2001 10.0
September 30, 2001 8.0
December 31, 2001 6.0
March 31, 2002 6.0
June 30, 2002 6.0
September 30, 2002 4.0
December 31, 2002 4.0
</TABLE>
139
<PAGE>
SCHEDULE 8.3(D)
LEVERAGE RATIO (EBITDA)
-----------------------
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING RATIO
- ---------------------------------- -----
<S> <C>
December 31, 2002 *****
March 31, 2003 *****
June 30, 2003 *****
September 30, 2003 *****
December 31, 2003 *****
March 31, 2004 *****
June 30, 2004 *****
September 30, 2004 *****
December 31, 2004 and thereafter *****
</TABLE>
- --------------------------------------------------------------------------------
***** Certain information on this page has been omitted and filed
separately with the Securities and Exchange Commission. Confidential treatment
has been requested with respect to the omitted portions.
140
<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT
dated as of June 25, 1998
among
OMNIPOINT MB HOLDINGS, LLC,
Borrower,
--------
ERICSSON INC.,
as Administrative Agent,
-----------------------
and
THE LENDERS NAMED HEREIN
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I.
DEFINITIONS AND RULES OF INTERPRETATION
1.01. Definitions 1
1.02. Rules of Interpretation 37
1.03. Accounting Terms 38
ARTICLE II.
THE LOANS
2.01. The Advances 38
2.02. Making the Advances 39
2.03. Fees 42
2.04. Interest 42
2.05. Interest Rate Determination 43
2.06. Conversion of Advances 45
2.07. Payments and Computations 45
2.08. Sharing of Payments, Etc. 50
2.09. Use of Proceeds 50
2.10. The Notes 51
2.11. First LIBOR Method and Second LIBOR Method 51
2.12. Increases, Reduction or Termination of the Commitments 51
ARTICLE III.
REPAYMENT AND PREPAYMENT OF THE LOANS
3.01. Repayment 52
3.02. Mandatory Prepayments of Loans 53
3.03. Optional Prepayments of Loans 59
3.04. Certain Matters Relating to Repayments and Prepayments 59
ARTICLE IV
ILLEGALITY, INCREASED COSTS, CAPITAL ADEQUACY AND
INDEMNITIES
4.01. Illegality 60
4.02. Additional Costs and Capital Adequacy 60
4.03. Taxes 61
4.04. Survival 63
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.01. Corporate and Limited Liability Company Authority 64
5.02. Governmental Approvals 65
5.03. Title to Properties 65
5.04. Financial Statements 66
5.05. No Material Adverse Effect, Etc. 66
5.06. Franchises, Patents, Copyrights, Etc. 66
5.07. FCC Licenses, Etc. 66
5.08. Litigation 66
5.09. No Materially Adverse Contracts, Etc. 67
5.10. Compliance with Other Instruments, Laws, Etc. 67
5.11. Tax Status 67
5.12. No Default 67
5.13. Holding Company and Investment Company Acts 67
5.14. Absence of Financing Statements, Etc. 67
5.15. FCC Matters 68
5.16. Tariffs 68
5.17. Disclosure 68
5.18. Burdensome Obligations 68
5.19. Solvency 68
5.20. Security Interests 68
5.21. Certain Transactions 69
5.22. Business Plans 69
5.23. Employee Benefit Plans 69
5.24. Regulations U and X 70
5.25. Environmental Compliance 70
5.26. Joint Ventures, Etc. 71
5.27. Material Contracts 72
5.28. Representations in Other Loan Documents. 72
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
6.01. Maintenance of Office 72
6.02. Records and Accounts 72
6.03. Corporate Existence; Maintenance of Licenses 72
6.04. Maintenance of Properties 73
6.05. Insurance 74
6.06. Taxes 75
6.07. Inspection of Properties and Books 75
6.08. Compliance with Laws, Contracts, FCC Licenses and Permits 75
6.09. Further Assurances 76
6.10. Authorization from Landlord/Mortgagee, Etc. 76
6.11. Attornment and Recognition Agreements 77
6.12. Expense Allocation Agreement 77
6.13. Maintenance of Subsidiary 77
6.14. Reporting Requirements; Notices 77
6.15. Financial Covenants of the Borrower 84
6.16. Certified Copies of Insurance Policies 86
6.17. Mortgage Liens 86
6.18. New Subsidiaries 86
6.19. [Intentionally omitted.] 87
6.20. D-, E- and F-Block Subsidiaries 87
ARTICLE VII
CERTAIN NEGATIVE COVENANTS OF THE BORROWER
7.01. Restrictions on Indebtedness 87
7.02. Restrictions on Liens 90
7.03. No Contingent Obligations 92
7.04. Restrictions on Investments 93
7.05. Distributions 95
7.06. Merger, Consolidation, Disposition of Assets, Etc. 98
7.07. Sale and Leaseback 101
7.08. Compliance with Environmental Laws 101
7.09. Employee Benefit Plans 102
7.10. New Subsidiaries 103
7.11. Transactions with Affiliates 103
7.12. Permitted Business 104
7.13. Charter Amendments 104
7.14. Accounting Changes 104
7.15. Prepayments, Etc., of Indebtedness 104
7.16. Amendment, Etc., of Material Contracts 105
7.17. Restrictions on Subsidiaries 105
7.18. Partnerships 106
7.19. Default Under the Equipment Acquisition Agreement 106
7.20. Collections of Receivables 106
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE VIII
CONDITIONS TO THE INITIAL ADVANCE
8.01. Terms and Conditions of Transaction 106
8.02. Due Diligence 106
8.03. Validity of Liens 107
8.04. Search Reports and Related Documents 107
8.05. Certificates of Insurance 107
8.06. Solvency Certificate 108
8.07. Opinions of Counsel to the Borrower 108
8.08. Opinion of Counsel to the Parent 108
8.09. Opinion of FCC Counsel 108
8.10. Opinion of Counsel to the Administrative Agent 108
8.11. Payment of Fees 108
8.12. Approvals, Permits; FCC Licenses 108
8.13. Delivery of Full-Term Operating Business Plan 109
8.14. Security Agreements 109
8.15. Guaranties 110
8.16. Mortgages, Etc. 111
8.17. Attornment and Recognition Agreements 111
8.18. Material Agreements 111
8.19. Litigation 112
8.20. Insurance Certificates 112
8.21. No Default 112
8.22. No Material Adverse Change 112
8.23. Corporate and Limited Liability Company Documents 112
8.24. Intercreditor Agreement 114
8.25. Support Agreement 114
8.26. [Intentionally omitted.] 114
8.27. Acknowledgement of Assignment 114
8.28. Other Information 114
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IX
ADDITIONAL CONDITIONS TO ADVANCES
9.01. Conditions Precedent to an Initial Advance Based on Ericsson Related Expenses
with Respect to Any Operating Subsidiary or License Subsidiary 115
9.02. Conditions to All Advances 115
ARTICLE X
EVENTS OF DEFAULT; ACCELERATION; ETC.
10.01. Events of Default and Acceleration 117
ARTICLE XI
THE ADMINISTRATIVE AGENT
11.01. Authorization and Action 121
11.02. Administrative Agent's Reliance, Etc. 122
11.03. Ericsson and Affiliates 123
11.04. Lender Credit Decision 123
11.05. Indemnification 123
11.06. Successor Administrative Agents 124
ARTICLE XII
MISCELLANEOUS
12.01. Amendments, Etc. 124
12.02. Notices, Etc. 125
12.03. No Waiver; Remedies 126
12.04. Costs, Expenses 127
12.05. Right of Set-off 129
12.06. Binding Effect 129
12.07. Assignments and Participations 129
12.08. Governing Law 133
12.09. Execution in Counterparts 133
12.10. Confidentiality 134
12.11. Consent to Jurisdiction 135
12.12. Matters Relating to the Collateral Agent 135
12.13. Amendments, Etc., to Intercreditor Agreement 135
12.14. Other Agreements. 136
12.15. Waiver of Jury Trial 136
</TABLE>
v
<PAGE>
<TABLE>
<CAPTION>
Exhibits
- ------------------
<S> <C>
Exhibit A - Form of Note
Exhibit B - Form of Draw Request
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Services Agreement
Exhibit D-2 - Form of Operating Agreement
Exhibit E-1 - Form of Borrower Security Agreement
Exhibit E-2 - Form of Parent Pledge Agreement
Exhibit E-3 - [Intentionally omitted.]
Exhibit E-4 - Form of D-, E- and F-Block Subsidiary Parent Pledge Agreement
Exhibit E-5 - Form of Subsidiary Security Agreement
Exhibit E-5(a)- Form of Subsidiary D-Block and F-Block Subsidiary Security Agreement
Exhibit F - Form of Real Estate Mortgage Option
Exhibit G - Form of Subordination Agreement
Exhibit H-1 - Form of Limited Recourse Parent Guaranty
Exhibit H-2 - [Intentionally omitted]
Exhibit H-3 - Form of D-, E- and F-Block Subsidiary Parent Limited Recourse Guaranty
Exhibit H-4 - Form of Subsidiary Guaranty
Exhibit I - Form of Intercreditor Agreement
Exhibit J - Form of Support Agreement
Schedules
- ------------------
Schedule 1.01 - Permitted BTAs
Schedule 1.01A - Certain Geographic Areas of Permitted BTAs
Schedule 5.01(b) - Subsidiaries
Schedule 5.06 - Intellectual Property
Schedule 5.07 - FCC Licenses
Schedule 5.25 - Environmental Matters
Schedule 5.27 - Material Contracts
Schedule 6.15(a) - Revenue
Schedule 6.15(c) - Leverage Ratio
Schedule 7.04 - Investments
Schedule 8.16 - Mortgaged Property
</TABLE>
vi
<PAGE>
Exhibit 10.64
AMENDED AND RESTATED LOAN AGREEMENT
-----------------------------------
This Amended and Restated Agreement is made as of June 25, 1998, by and
among (a) OMNIPOINT MB HOLDINGS, LLC, a Delaware limited liability company (the
"Borrower"), (b) the lenders listed on the signature pages hereof and (c)
--------
ERICSSON INC., a Delaware corporation ("Ericsson"), as administrative agent for
--------
the Lenders (together with any successor thereto appointed pursuant to (S)11.06,
the "Administrative Agent").
--------------------
ARTICLE I.
DEFINITIONS AND RULES OF INTERPRETATION
---------------------------------------
Section 1.01. Definitions.
-----------
Adjusted EBITDA. For any period, the sum of EBTDA for such period plus
---------------
Marketing Expenses (including, without limitation, compensation and commissions
incurred in connection with the foregoing activities) for such period to the
extent deducted from EBTDA.
Administrative Agent. See the preamble hereto.
--------------------
Administrative Agent's Account. The account of the Administrative Agent
------------------------------
maintained by the Administrative Agent with Mellon Bank N.A. at its office at
Mellon Bank Center, Pittsburgh, PA 15258, for the account of Ericsson Radio
System Financing Account, Account No. 030-8540 (or such other account as the
Administrative Agent from time to time may specify).
Administrative Agent's Office. The Administrative Agent's office set forth
-----------------------------
in (S)12.02 and, upon the appointment of a successor Administrative Agent
pursuant to (S)11.06, such address as shall be provided by such successor
Administrative Agent, or in either case such office as the Administrative Agent
from time to time may designate.
Advances. An advance by a Lender to the Borrower pursuant to Article II
--------
and refers to a Base Rate Advance or a Eurodollar Rate Advance and a Tranche X
Advance or a Tranche Y Advance.
Affiliate. As to any Person, any other Person 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 shall include
the power, direct or indirect, (a) to vote 50% or more of the securities or
other interests having ordinary voting power for the election of directors or
other managing Persons of such Person or (b) to direct or cause direction of the
management and policies of such Person whether by contract or otherwise.
<PAGE>
Agents. Collectively, the Administrative Agent and the Collateral Agent.
------
Applicable Ericsson Expenses. At any date:
----------------------------
(a) the aggregate amount of Net Ericsson Related Expenses as of such
date, minus
(b) amounts included therein as of such date by reason of clause (b)
of the definition of Ericsson Related Expenses.
Applicable Lender. With respect to Tranche X Loans, Tranche X Lenders, and
-----------------
with respect to Tranche Y Loans, Tranche Y Lenders.
Applicable Lending Office. With respect to any Lender, for Base Rate
-------------------------
Loans, the office of such Lender specified as its domestic lending office and,
for LIBOR Loans, the office of such Lender specified as its LIBOR lending
office, in either case on the signature pages hereof or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other offices of such
Lender as such Lender may from time to time specify to the Administrative Agent.
Applicable Margin. With respect to:
-----------------
(a) any Tranche X Advance that is:
(i) a Base Rate Advance, 1.00% per annum until August 4, 2001
and 2.50% per annum thereafter, and
(ii) a LIBOR Advance, 3.75% per annum until August 4, 2001 and
5.25% per annum thereafter.
Approved Annual Operating Business Plan. With respect to each fiscal year
---------------------------------------
of the Borrower, beginning with its fiscal year ending December 31, 1998, any
annual business operating plan delivered by the Borrower pursuant to (S)6.14(a)
with respect to such fiscal year that shall have been approved by the Required
Lenders.
Approved Full Term Operating Business Plan. Unless and until the Borrower
------------------------------------------
in its discretion shall have delivered to the Lenders a revised full-term
operating plan that the Required Lenders shall have approved, the full-term
operating plan delivered by the Borrower pursuant to (S)8.13(b), and thereafter
the most recent full-term operating plan delivered by the Borrower that the
Required Lenders shall have approved.
2
<PAGE>
Assignment and Acceptance. An Assignment and Acceptance substantially in
-------------------------
the form of Exhibit C.
---------
Attributed Expenses. At any date and with respect to any Permitted BTA or
-------------------
the right to provide PCS services to POPs within a Permitted BTA, the aggregate
amount of all Ericsson Related Expenses and Other Costs incurred primarily with
respect to providing PCS services to, or used primarily for the normal
commercial operation of PCS services for, such Permitted BTA or such POPs, other
than, in the case of any Permitted BTA the FCC License for which has been the
subject of a C-Block General License Revocation Event, any such Ericsson Related
Expenses in respect of equipment that shall have been installed and shall be
used for a normal commercial operation of another Permitted BTA on or before the
date on which such Permitted BTA shall become an Excluded BTA.
Bank of America Loan Agreement. For the purposes of interpreting this
------------------------------
Agreement, the loan agreement dated as of June 25, 1998, among the Borrower,
Bank of America International Limited as administrative agent and the lenders
party thereto, without regard to any amendment, modification or supplement
thereto unless the Administrative Agent (acting on the instruction of the
Required Lenders) has given its prior written consent to such amendment,
modification or supplement; provided, that this clause shall not constitute or
--------
be construed as a prohibition, restriction or limitation on the Borrower
entering into any such amendment, modification or supplement.
Base Rate. A fluctuating interest rate per annum in effect from time to
---------
time, which rate per annum shall at any date of determination be equal to the
higher of:
(a) the rate of interest per annum announced publicly by Morgan
Guaranty Trust Company of New York as its prime or base rate on such date,
and
(b) 1/2 of 1% per annum above the Federal Funds Rate on such date.
Base Rate Advance. A Tranche X Advance bearing interest calculated by
-----------------
reference to the Base Rate.
Base Rate Loans. Tranche X Loans bearing interest calculated by reference
---------------
to the Base Rate.
Borrower. See the preamble hereto.
--------
Borrower Security Agreement. See (S)8.14(a).
---------------------------
Boston BTA. BTA No. 51.
----------
3
<PAGE>
BTA. Any "basic trading area" as set forth on the Rand McNally 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, and utilized by the FCC in
dividing the 50 states, the District of Columbia and the United States
territories into 493 BTAs for the purpose of licensing PCS Systems.
Business Day. Any day other than a Saturday, a Sunday or a day on which
------------
commercial banks located in New York City are authorized or required by law or
other governmental action to close and, if the applicable Business Day relates
to any LIBOR Advance, a day on which dealings are not carried on in the London
interbank market.
Capital Expenditures. Amounts paid or Indebtedness incurred by the
--------------------
Borrower in connection with the purchase or lease by the Borrower of assets that
would be required to be capitalized and shown on the balance sheet of such
Person in accordance with GAAP.
Capitalized Leases. Leases under which the Borrower is the lessee or
------------------
obligor, the discounted future rental-payment obligations under which are
required to be capitalized on the balance sheet of the lessee or obligor in
accordance with GAAP.
Cash Equivalents. Any Investments of the Borrower or any of its
----------------
Subsidiaries of the types permitted under clauses (b), (c), (d) and (e) of
(S)7.04 having a maturity of not greater than 270 days from the date of
acquisition thereof.
Cash Management Agreement. The Amended and Restated Cash Management Agency
-------------------------
Agreement dated as of June 25, 1998 between Operations and the Grandparent.
C-Block General License Revocation Event. Any action by the FCC the effect
----------------------------------------
of which is to revoke, annul, rescind, cancel, suspend or terminate all FCC
Licenses issued in connection with the FCC's C-block auction (including those
held by License Subsidiaries), regardless of whether the Persons owning such FCC
Licenses were in default thereunder.
C-Block FCC License. Any FCC License sold in the FCC's C-block auction.
-------------------
CERCLA. The Comprehensive Environmental Response, Compensation and
------
Liability Act, as amended, 42 USCA (S)9601 et seq.
Closing Date. The meaning specified in the introductory clause of Article
------------
VIII.
Collateral. All "Collateral" and "Pledged Collateral" referred to in the
----------
Collateral Documents and all other property that is or is intended to be subject
to any Lien in favor of the Collateral Agent for the benefit of Secured Parties.
4
<PAGE>
Collateral Agent. Chase Manhattan Trust Company, National Association
----------------
(successor in interest to Mellon Bank, N.A.) or any successor thereto appointed
pursuant to (S)6.1 of the Intercreditor Agreement.
Collateral Documents. The Security Agreements, the Mortgages and any other
--------------------
agreement that purports to create a Lien in favor of the Collateral Agent for
the benefit of the Secured Parties.
Commitment. With respect to any Tranche X Lender, its Tranche X Commitment
----------
and with respect to any Tranche Y Lender, its Tranche Y Commitment.
Communications Act. The Communications Act of 1934, as amended, and the
------------------
rules and regulations issued thereunder, as from time to time in effect.
Confidential Information. Information that the Borrower or any of its
------------------------
Affiliates furnishes to the Administrative Agent or any Lender in a writing
designated as confidential, but Confidential Information does not include any
such information that is or becomes generally available to the public or that is
or becomes available to the Administrative Agent or such Lender from a source
other than the Borrower or any of its Affiliates.
Consolidated. The consolidation of accounts in accordance with GAAP of the
------------
Borrower and its Subsidiaries.
Contingent Obligation. As to any Person, any obligation of such Person
---------------------
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation ("primary obligations") of any other Person (the "primary
------------------- -------
obligor") in any manner, whether directly or indirectly, including without
- -------
limitation any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor;
(b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation,
or
(ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain net worth, solvency or other
financial statement condition of the primary obligor;
(c) to purchase Property, securities or services primarily for the
purpose of assuring the beneficiary or holder of any such primary
obligation of the ability of the
5
<PAGE>
primary obligor to make payment of such primary obligation; or
(d) otherwise to assure, protect from loss, or hold harmless the
beneficiary or holder of such primary obligation against loss in respect
thereof;
provided that the term "Contingent Obligation" shall not include the indorsement
- --------
of instruments for deposit or collection in the ordinary course of business.
The term "Contingent Obligation" shall also include the liability of a general
partner in respect of the recourse liabilities of the partnership in which it is
a general partner. The amount of any Contingent Obligation of a Person shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
Convert, Conversion and Converted. A conversion of Advances of one Type
------- ---------- ---------
into Advances of the other Type pursuant to (S)2.05 or 2.06.
Core BTA. At any date, any BTA that is a Permitted BTA as of such date and
--------
that has a population of at least 1,000,000 POPs.
D-, E- and F-Block Subsidiary. The Subsidiary of the D-,E- and F-Block
-----------------------------
Subsidiary Parent that, at the date hereof, holds an FCC License for the West
Palm Beach BTA.
D-, E- and F-Block Subsidiary Parent. Omnipoint PCS Entrepreneurs Two,
------------------------------------
LLC, a Delaware limited liability company, together with its successors and
assigns.
D-, E- and F-Block Subsidiary Parent Limited Recourse Guaranty. See
--------------------------------------------------------------
(S)8.15(c).
D-, E- and F-Block Subsidiary Pledge Agreement. See (S)8.14(d).
----------------------------------------------
Debt Service. For any period, the aggregate scheduled amount of interest
------------
required to be paid and principal required to be repaid by the Borrower and its
Subsidiaries (in each case, without duplication) during such period on all
Indebtedness of the Borrower and its Subsidiaries outstanding during all or any
part of such period (excluding (a) the amount of any prepayment pursuant to
(S)3.02(a), (b) or (c) of this Agreement, (S)5.2(a) or (b) of the Bank of
America Loan Agreement or any similar prepayment under a Permitted Loan
Agreement and (b) interest capitalized under loans where such loans provide for
the funding of interest costs) and owing to Persons other than the Borrower and
its Subsidiaries, whether such interest and principal were or are required to be
reflected as an item of expense or capitalized, including payments in respect of
Capitalized Leases and including scheduled payments of commitment fees, agency
fees, facility fees, origination fees, balance-deficiency fees and similar fees
or expenses in connection with Indebtedness.
6
<PAGE>
Default. Any Event of Default and any event or condition that, with the
-------
giving of notice, the lapse of time, or both, would become an Event of Default.
Distribution. Any of the following with respect to any Person:
------------
(a) the declaration or payment of any cash dividend, dividend in kind
or cash equity distributions on or in respect of any shares of any class of
Stock of such Person, other than dividends payable solely in shares of
common stock (or equivalent interests) of the such Person;
(b) the purchase, redemption, or other retirement of any shares of any
class of Stock of such Person;
(c) the return of capital by any Person to its shareholders or members
(as applicable) (or holders of interests equivalent to shares or membership
interests) as such;
(d) any other distribution on or in respect of any shares or
equivalent interests of any class or series of Stock of such Person; or
(e) if such Person is the Borrower, any payment of principal, premium
or interest, or any other amount, in respect of Subordinated Debt of the
Borrower.
Dollars or $. Dollars in lawful currency of the United States of America.
------------
Draw Request. See (S)2.02.
------------
EBTDA. For any period, the sum, determined on a Consolidated basis, of
-----
(a) Net Income of the Borrower and its Subsidiaries for such period,
plus
(b) to the extent deducted in determining Net Income, the sum of each
of the following for such period:
(i) depreciation, amortization and other non-cash charges;
(ii) income-tax expense; and
(iii) interest not being paid as an express feature of the
related debt instrument.
7
<PAGE>
EKN. EXPORTKREDITNAMNDEN (the Swedish Export Guarantee Board).
---
EKN Documents. As defined in the Bank of America Loan Agreement.
-------------
EKN Guarantee. As defined in the Bank of America Loan Agreement.
-------------
Employee Benefit Plan. Any employee benefit plan within the meaning of
---------------------
(S)3(3) of ERISA maintained or contributed to by any Loan Party or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. Any federal, state or local law, statute, rule or
------------------
regulation or common law relating to the environment or occupational health and
safety, including any statute, regulation or order pertaining to
(a) treatment, storage, disposal, generation and transportation of
industrial, toxic or hazardous substances or solid or hazardous waste;
(b) air, water or noise pollution;
(c) groundwater and soil contamination;
(d) the release or threatened release into the environment of
industrial, toxic or hazardous substances, or solid or hazardous waste,
including without limitation emissions, discharges, injections, spills,
escapes or dumping of pollutants, contaminants or chemicals;
(e) the protection of wildlife, marine sanctuaries and wetlands,
including without limitation all endangered and threatened species;
(f) underground and other storage tanks or vessels, abandoned,
disposed or discarded barrels, containers and other closed receptacles;
(g) health and safety of employees and other persons; and
(h) manufacture, processing, use, distribution, treatment, storage,
disposal, transportation or handling of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or oil or petroleum products,
by-products or breakdown products or solid or hazardous waste,
8
<PAGE>
including (i) CERCLA; (ii) RCRA; (iii) the Toxic Substance Control Act, as
amended, 15 USCA (S)2601 et seq.; (iv) the Water Pollution Control Act, as
amended, 33 USCA (S)1251 et seq.; (v) the Clean Air Act, as amended, 42 USCA
(S)7401 et seq.; (vi) the Hazardous Material Transportation Act, as amended, 49
USCA (S)1801 et seq.; (vii) the Superfund Amendments and Reauthorization Act of
1986; and (viii) all rules, regulations, judgments, decrees, injunctions and
restrictions thereunder and any analogous state law. As used above, the terms
"release", "threatened release", "hazardous substance" and "environment" shall
have the meaning set forth in CERCLA, and the terms "solid waste" and "dispose"
(or "disposal") shall have the meaning set forth in the RCRA.
Environmental Permits. See (S)5.25(d).
---------------------
Equipment Acquisition Agreement. The Acquisition Agreement for Ericsson
-------------------------------
CMS 40 Personal Communications Systems (PCS) Infrastructure Equipment, dated as
of April 16, 1996, as amended as of July 25, 1997 among Ericsson, OCI, Omnipoint
Communications Enterprises, Inc. and the Borrower, as further amended,
supplemented or otherwise modified from time to time.
Ericsson. See the preamble hereto.
--------
Ericsson Related Expenses. With respect to any Permitted BTA (or any other
-------------------------
BTA as provided below) and any date:
(a) (i) the aggregate purchase price paid (excluding (x) all amounts
paid or incurred on a date before the date that such Permitted BTA
shall have become a Permitted BTA, other than those paid or incurred
by or on behalf of the Grandparent or any of its Affiliates and (y) if
such Permitted BTA is a BTA for which a C-Block FCC License is held by
a License Subsidiary, all amounts paid or incurred with respect to
such Permitted BTA on or after any date on which a Proposed C-Block
General License Revocation Event shall have occurred), or being paid
with the proceeds of an Advance hereunder simultaneously with the
making of such Advance, by the Borrower and its Subsidiaries for:
(A) CMS 40/PCS 1900 or IS-661 equipment and software
purchased from Ericsson pursuant to the Equipment Acquisition
Agreement for use primarily in such Permitted BTA or such
Permitted BTA and one or more other Permitted BTAs (in any case
other than any portions thereof theretofore disposed of pursuant
to an FCC License Partition) and integral to the PCS Systems to
be built out in such Permitted BTAs (other than any such
portions) or any intelligent networks used in connection with any
BTAs, including without limitation
9
<PAGE>
base stations, switching and other network infrastructure,
software, materials and the installation of the same, in each
case whether manufactured or provided by Ericsson or purchased by
Ericsson from other sources and resold to the Borrower or any of
its Subsidiaries under the Equipment Acquisition Agreement, and
(B) services provided by Ericsson relating to the design,
engineering and other related services integral to such PCS
Systems incurred on or before such date, minus
(ii) the aggregate amount of all later refunds or reductions of
or other adjustments to the original purchase price for any of such
equipment, software or services, plus
(b) the lesser of:
(i) (A) $42,500,000 minus
(B) the aggregate principal amount of Handset Advances then
outstanding under the OPCS Loan Agreement, and
(ii) the aggregate amount of Handset Costs incurred on or before
such date.
ERISA. The Employee Retirement Income Security Act of 1974, as amended,
-----
and the rules and regulations issued thereunder as from time to time in effect.
ERISA Affiliate. Any Person that is treated as a single employer with the
---------------
Borrower under (S)414 of the IRC.
ERISA Event. With respect to any Loan Party or any ERISA Affiliate,
-----------
(a) a Reportable Event,
(b) the withdrawal of any Loan Party or any ERISA Affiliate from a
Plan during a plan year in which it was a "substantial employer" as defined
in (S)4001(a)(2) of ERISA,
(c) the filing of a notice of intent to terminate a Plan under a
distress termination of the Plan under (S)4041(c) of ERISA, or the
treatment of a Plan amendment as a termination under (S)4041 of ERISA,
10
<PAGE>
(d) the institution of proceedings to terminate a Plan by the PBGC
under (S)4042 of ERISA, or
(e) the occurrence of any other event or condition which might
reasonably be expected to constitute grounds under (S)4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan or
to cause the imposition of any liability (other than PBGC premiums due but
not delinquent under (S)4007 of ERISA) in excess of $250,000 under Title IV
of ERISA.
Event of Default. Any of the events specified in (S)10.01.
----------------
Event of Force Majeure. A fire, act of civil disobedience, riot,
----------------------
rebellion, accident, explosion, flood, storm, Act of God, governmental action or
similar occurrence that is not reasonably foreseeable and beyond the reasonable
control of the Grandparent and its Subsidiaries and that has the effect of
preventing the Borrower or one of its Subsidiaries from fulfilling any of its
obligations under this Agreement.
Excess Cash Flow. With respect to any fiscal year,
----------------
(a) EBTDA for such fiscal year, plus
(b) the aggregate amount of interest paid by the Borrower or any of
its Subsidiaries on any Indebtedness owing to the Parent or any Affiliate
thereof (other than the Borrower and its Subsidiaries) during such fiscal
year, minus
(c) proceeds from any FCC License Transfer by the Borrower and its
Subsidiaries, to the extent such proceeds would be included in EBTDA for
such fiscal year, minus
(d) income-tax payments, capital expenditures net of new financing
proceeds, aggregate scheduled principal payments under any Indebtedness of
the Borrower and its Subsidiaries (including payments on amounts owing to
the FCC with respect to BTA licenses) (other than mandatory prepayments out
of Excess Cash Flow), in each case during such fiscal year, plus (if
negative) or minus (if positive), as the case may be,
(e) differences between beginning and ending Working Capital
(excluding for purposes of any determination of working capital receivables
past due more than 60 days, inventory and current portions of long-term
Indebtedness) in respect of such fiscal year.
11
<PAGE>
Excess Handset Costs. At any date, Handset Costs of the Borrower as of
--------------------
such date in excess of the amount thereof that is included in Ericsson Related
Expenses as of such date.
Excess Proceeds. With respect to any FCC License Transfer or any FCC
---------------
License Partition, the Net Cash Proceeds thereof, whether received at the time
of such sale or at any time thereafter, after deducting from such proceeds the
amount of any mandatory prepayment required under this Agreement or the Bank of
America Loan Agreement as a result thereof and any prepayments required under
any other Permitted Loan Agreement or to other providers of vendor financing to
the Borrower made as a result thereof pursuant to provisions substantially the
same as the applicable provisions of this Agreement.
Excluded BTA. At any date, any BTA:
------------
(a) as to which an FCC License Transfer shall have theretofore
occurred, other than an FCC License Transfer as to which a condition
specified in clause (II) or (III) of (S)7.06(b)(iii)(B)(1) shall have been
satisfied;
(b) as to which the related FCC License shall have been the subject of
a C-Block General License Revocation Event that occurred 180 or more days
prior to such date unless a License Subsidiary shall then hold an FCC
License or the right to provide PCS services on terms and conditions
acceptable to the Required Lenders with respect to such BTA covering at
least 10 MHz of spectrum;
(c) as to which the related FCC License shall have been the subject of
a Permitted C-Block FCC License Transfer that occurred 90 or more days
prior to such date unless a License Subsidiary shall then hold an FCC
License or the right to provide PCS services on terms and conditions
acceptable to the Required Lenders with respect to such BTA covering at
least 10 MHz of spectrum;
(d) the FCC License for which shall have been transferred to a
Qualified Joint Venture as to which an event of the nature described in
(S)10.01(e) shall have theretofore occurred with respect to any holder of
any equity interest in such Qualified Joint Venture, unless the Grandparent
shall have unconditionally guaranteed, in a manner in form and substance
satisfactory to the Required Lenders, an aggregate principal amount (plus
interest and costs of collection) of the Advances at any time outstanding
equal to the lesser of the aggregate principal amount of the Advances at
any time outstanding and the amount of Attributed Expenses outstanding at
any time that relate to such BTA.
Excluded Other Costs. Any amounts paid in connection with the purchase of
any of the following equipment manufactured or sold by any vendor other than
Ericsson (or any of its Affiliates): Base Station Controllers (BSC), Operation
and Support Systems (OSS), Intelligent Networks (IN), Mobile Switching Centers
(MSC), Authentication Centers (AUC), Equipment Identity Registers, (EIR), Base
Transceiver Stations (BTS), Home Location Registers (HLR), Visitor Location
Registers (VLR) and Short Message Service Centers (SMS)(other than those
manufactured or sold by CMG Telecommunications, Inc.).
12
<PAGE>
Expense Allocation Agreement. The Amended and Restated Expense Allocation
----------------------------
Agreement dated as of the date hereof among the Borrower, Operations and the
Grandparent.
FCC. The Federal Communications Commission or any Governmental Body
---
succeeding to the functions thereof.
FCC License. Any mobile telephone, cellular telephone, microwave, paging
-----------
or other license, authorization, certificate of compliance, franchise, approval
or permit, whether for the construction or the operation of any PCS System,
granted or issued by the FCC and any other federal Governmental Body with
respect to any BTA.
FCC License Transfer. Any sale, assignment or other transfer of any FCC
--------------------
License in its entirety or any Stock of a License Subsidiary, other than any
such transfer to a Qualified Joint Venture permitted under Section 7.06(b)(iv).
FCC License Partition. A sale, transfer or other disposition of the right
---------------------
to provide PCS services to POPs within a geographic area specified in Schedule
1.01A (as the same may be supplemented from time to time by agreement of the
Borrower and the Required Lenders) that is within a Permitted BTA.
Federal Funds Rate. The fluctuating interest rate per annum equal for each
------------------
day during such period to 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 for such day (or, if such day is not a
Business Day, for the next-preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three federal-funds brokers of recognized standing
selected by it.
First LIBOR Method. The terms and provisions of this Agreement relating to
------------------
LIBOR Advances specified as being applicable when the First LIBOR Method is
applicable under (S)2.11.
First Optional Payment Date. With respect to any calendar month, the
---------------------------
second Trading Day after the fifth day of such calendar month (or, if such fifth
day is not a Trading Day, the next-following Trading Day).
13
<PAGE>
Fiscal Quarter. A fiscal quarter of the Borrower and its Consolidated
--------------
Subsidiaries.
GAAP. See (S)1.03.
----
Governmental Body. Any nation or government, any state or other political
-----------------
subdivision thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
court or arbitrator.
Grandparent. Omnipoint Corporation, a Delaware corporation, together with
-----------
its successors.
Guaranteed Pension Plan. Any employee pension benefit plan within the
-----------------------
meaning of (S)3(2) of ERISA that is maintained or contributed to by any Loan
Party or any ERISA Affiliate or that was so maintained or contributed to and in
respect of which the Borrower or any ERISA Affiliate could have liability under
Section 4064 or 4069 of ERISA in the event that such plan has been or were to be
terminated the benefits of which are guaranteed on termination in full or in
part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer Plan.
Guaranties. At any date, any Limited Recourse Parent Guaranty, Subsidiary
----------
Guaranty or D-, E- and F- Block Subsidiary Parent Limited Recourse Guaranty
theretofore delivered by any Person that shall not have been terminated or
released in accordance with its terms.
Guarantors. At any date, any Person that shall have delivered a Guaranty
----------
that shall not have been terminated and released in accordance with its terms.
Handset Advances. At any date:
----------------
(a) with respect to this Agreement, the amount, if any, by which the
aggregate principal amount of Tranche X Advances then outstanding shall
exceed the aggregate amount of Net Ericsson Related Expenses, net of
Swedish Expenses, and the aggregate principal amount of Interest Advances
relating to this Agreement outstanding as of such date; and
(b) with respect to the OPCS Loan Agreement, the amount, if any, by
which the aggregate principal amount of OPCS Advances then outstanding
shall exceed the aggregate amount of OPCS Net Ericsson Related Expenses and
the aggregate principal amount of Interest Advances relating to the OPCS
Loan Agreement outstanding as of such date.
14
<PAGE>
Handset Costs. At any date:
-------------
(a) with respect to the Borrower, an amount equal to the lesser of:
(i) the number of handsets purchased on or before such date or
being purchased with the proceeds of an Advance hereunder by the
Borrower or its Subsidiaries from Ericsson and its Affiliates and that
could be used in Permitted BTAs, multiplied by $200 and
(ii) one half of the aggregate purchase price for such handsets,
net of any refunds, reductions or other adjustments thereto, and
(b) with respect to OPCS, "Handset Costs", as defined in the OPCS Loan
Agreement.
Indebtedness. As to any Person, at a particular time, all items that
------------
constitute, without duplication:
(a) obligations of such Person in respect of borrowed money or for the
deferred purchase price of Property (other than trade payables incurred in
the ordinary course of business);
(b) obligations of such Person evidenced by notes, bonds, debentures
or similar instruments;
(c) obligations of such Person with respect to any conditional-sale or
title-retention agreement;
(d) obligations of such Person arising under acceptance facilities and
the amount available to be drawn under all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn
thereunder to the extent such Person shall not have reimbursed the issuer
in respect of the issuer's payment of such drafts;
(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 (other than carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual Liens arising in the ordinary
course of business);
(f) obligations of such Person under Capitalized Leases;
(g) amounts owed by such Person to the FCC on any FCC License;
(h) all Contingent Obligations of such Person; and
15
<PAGE>
(i) interest that is accreted or otherwise accrued and unpaid on
Subordinated Debt.
Intercreditor Agreement. See (S)8.24.
-----------------------
Interest Advances. At any date:
-----------------
(a) with respect to this Agreement, the lesser of:
(i) the amount by which the aggregate principal amount of Tranche
X Advances then outstanding shall exceed the aggregate amount of Net
Ericsson Related Expenses, net of Swedish Expenses, as of such date,
and
(ii) the amount described in clause (a)(iii) of the definition of
Tranche X Borrowing Base as of such date, and
(b) with respect to the OPCS Loan Agreement, the lesser of:
(i) the amount by which the aggregate principal amount of the
OPCS Advances then outstanding shall exceed the aggregate amount of
OPCS Net Ericsson Related Expenses as of such date, and
(ii) the amount described in clause (a)(iii) of the definition of
"Borrowing Base" in the OPCS Loan Agreement as of such date.
Interest Period. While the First LIBOR Method is applicable and Tranche X
---------------
Loans are accruing interest at a rate based on LIBOR, the period commencing on
the date on which interest on the Loans shall accrue at such rate as provided
herein and ending on the last day of such period, determined as provided below,
and thereafter each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of such period,
determined as provided below, or, if earlier, on the last day on which the Loans
shall accrue interest at a rate based on LIBOR. While the Second LIBOR Method
is applicable, for each LIBOR Advance comprising part of the same Loan, the
period commencing on the date of such LIBOR Advance or the date of the
Conversion of any Base Rate Advance into such LIBOR Advance and ending on the
last day of such period, determined as provided below, and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of such period, determined as
provided below. The duration of each such Interest Period shall be three
months; provided that:
--------
(a) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to
16
<PAGE>
occur on the next-succeeding Business Day; provided that, if such extension
--------
would cause the last day of such Interest Period to occur in the next-
following calendar month, the last day of such Interest Period shall occur
on the next-preceding Business Day, and
(b) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the third-following calendar month, such Interest Period shall end
on the last Business Day of such third-following calendar month.
Investments. All expenditures made and all liabilities incurred
-----------
(contingently or otherwise) for the acquisition of capital Stock or Indebtedness
of, or for loans, advances, capital contributions or transfers of property to,
or in respect of any guaranties (or other commitments as described under
Contingent Obligations), or obligations of, any Person. In determining the
aggregate amount of Investments outstanding at any particular time:
(a) the amount on any date of determination of any Investment
represented by a Contingent Obligation shall be taken at not less than the
principal amount of the obligations as to which such Contingent Obligation
exists and that are still outstanding on such date of determination;
(b) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until such
interest is paid;
(c) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution);
(d) there shall not be deducted in respect of any Investment any
amounts received as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest included as provided in
the foregoing clause (b) may be deducted when paid;
(e) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof; and
(f) there shall be included as an Investment (i) each receivable
(other than with respect to sales of handsets and accessories thereto) that
is payable more than three months following the date of the sale giving
rise thereto and (ii) each receivable with respect to sales of handsets and
accessories thereto that is payable more than six months following the date
of the sale giving rise thereto.
17
<PAGE>
IRC. The Internal Revenue Code of 1986, as amended from time to time, and
---
the rules and regulations issued thereunder as from time to time in effect.
Lender. Ericsson, unless and until it shall have assigned to other Persons
------
all of its rights and obligations as a Tranche X Lender or a Tranche Y Lender
hereunder, and any other Person that becomes a Tranche X Lender or a Tranche Y
Lender by reason of an Assignment and Acceptance in accordance with the terms of
this Agreement.
LIBOR. For any applicable Interest Period, a simple per annum interest
-----
rate (rounded upward, if necessary, to the nearest 1/100th of one percent) equal
to
(a) (i) the rate per annum that appears on Page 3750 of the Dow
Jones & Company Telerate screen or any successor page as the composite
offered rate for London interbank deposits, in an amount approximately
equal to the amount of the requested Loan for a three-month period, as
shown under the heading "USD" as of 11:00 a.m. (London time), two
Business Days before the first day of such Interest Period, or
(ii) if the rate specified in clause (i) cannot be determined,
the rate per annum equal to the arithmetic mean of the rates shown on
the LIBO page of Reuters Money Service at approximately 11:00 a.m.
(London time), two Business Days before the first day of such Interest
Period in an amount approximately equal to the amount of the requested
Loan, divided by
(b) one, minus the LIBOR Reserve Rate, stated as a decimal.
LIBOR Advance. A Tranche X Advance bearing interest calculated by
-------------
reference to LIBOR.
LIBOR Reserve Rate. For any Interest Period for all LIBOR Advances
------------------
comprising part of the same Loan, the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference to which
the interest rate on LIBOR Advances is determined) having a term equal to such
Interest Period.
18
<PAGE>
License Subsidiary. At any date, each Subsidiary of the Borrower and each
------------------
D-, E- and F-Block Subsidiary that holds an FCC License for a Permitted BTA,
other than any D-, E- and F-Block Subsidiary the pledge of the shares of Stock
of which shall have been released pursuant to the applicable Security Agreement.
Lien. Any mortgage, pledge, hypothecation, assignment, deposit or
----
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
Capitalized Lease or other financing lease having substantially the same
economic effect as any of the foregoing.
Limited Recourse Parent Guaranty. See (S)8.15(a).
--------------------------------
Loan. A Tranche X Loan or a Tranche Y Loan.
----
Loan Documents. This Agreement, the Notes, the Collateral Documents, the
--------------
Guaranties, each Subordination Agreement between any Person and the Borrower,
the Intercreditor Agreement, the Support Agreement, the Equipment Acquisition
Agreement, any mortgage or deed of trust entered into pursuant to (S)6.17 and
any other agreements or documents contemplated hereby or thereby and all
schedules, exhibits and annexes thereto.
Loan Parties. Collectively, the Borrower, the Grandparent and each
------------
Guarantor.
Market Price. For any Trading Day and any share of Omnipoint Common
------------
Stock:
(a) if Omnipoint Common Stock is listed or admitted to trading on any
securities exchange, the closing price, regular way, per share on such day
on the principal securities exchange on which Omnipoint Common Stock is
traded; and
(b) if Omnipoint Common Stock is not then listed or admitted to
trading on any securities exchange but is traded on the NASDAQ - National
Association of Securities Dealers Automated Quotation system, the average
of the closing bid and asked prices per share for Omnipoint Common Stock on
such day on such system.
If Omnipoint Common Stock is not listed on any securities exchange or traded on
such system the Market Price of Omnipoint Common Stock shall be deemed to be
indeterminable.
Marketing Expenses. With respect to any period, the sales and marketing
------------------
expenses of the Borrower and its Subsidiaries for such period, including,
without limitation, any such expenses incurred during such period in respect of
sales literature and advertising, promotions; subscriber acquisition services;
amounts allocable during such period to marketing expenses in
19
<PAGE>
respect of travel, entertainment, sales training, office expenses and research;
and the difference (if negative) between revenues from sales of handsets during
such period and the cost of such handsets, as determined on a basis consistent
with the Borrower's accounting methods that are consistent with GAAP.
Material Adverse Effect. An effect resulting from any circumstance or
-----------------------
event of whatever nature (including any adverse determination in any litigation)
which does, or could reasonably be expected to,
(a) materially and adversely impair the validity or enforceability of
any of the Loan Documents or the Administrative Agent's, the Collateral
Agent's or any Lender's rights or remedies with respect thereto;
(b) materially and adversely impair the ability of the Borrower to pay
any amounts owing hereunder or under any other Loan Document in accordance
with its terms;
(c) cause a Default;
(d) materially and adversely affect the business, property, prospects,
operations, or financial or other condition of the Borrower, its
Subsidiaries, the Parent or the Grandparent; or
(e) materially and adversely impair or affect the Collateral or
Lender's Liens on the Collateral or the priority of such Liens.
Material Contract. With respect to any Person, each contract to which such
-----------------
Person is a party involving aggregate consideration payable to or by such Person
of $5,000,000 or more in any 12-month period or otherwise material to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of such Person.
Materials of Environmental Concern. Any chemicals, pollutants or
----------------------------------
contaminants, hazardous substances (as such term is defined under CERCLA), solid
wastes and hazardous wastes (as such terms are defined under the RCRA), toxic
materials, oil or petroleum and petroleum products, by products or breakdown
products or any other material subject to regulation under any Environmental
Laws.
Maturity Date. With respect to Tranche X Advances, the Tranche X Maturity
-------------
Date and with respect to Tranche Y Advances, the Tranche Y Maturity Date.
20
<PAGE>
Maximum Other Cost Amount. At any date, an amount equal to:
-------------------------
(a) $200,000,000 minus
(b) the aggregate principal amount of Tranche Y Advances (other than
Tranche Y Interest Advances) then outstanding, minus
(c) the aggregate principal amount of Other Cost Advances under the
OPCS Loan Agreement then outstanding.
Miami BTA. BTA No. 293.
---------
Mortgages. See (S)8.16.
---------
MTA. Any "major trading area" as set forth on the Rand McNally 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, at pages 38-39 and utilized
by the FCC in dividing the 50 states, the District of Columbia and United States
territories into 51 MTAs for the purpose of licensing PCS Systems.
Multiemployer Plan. A "multiemployer plan" as defined in Sections
------------------
4001(a)(3) and 3(37) of ERISA, and to which any Loan Party or any ERISA
Affiliate is making, or is obligated to make, contributions or has made, or been
obligated to make, contributions.
Necessary Authorizations. All approvals and licenses from, and all filings
------------------------
and registrations with, any governmental or other regulatory authority,
including each FCC License held by a License Subsidiary and all grants,
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower and its Subsidiaries to own,
construct, maintain and operate PCS Systems.
Net Cash Proceeds. With respect to any transaction by any Person, the
-----------------
aggregate amount of cash received from time to time by or on behalf of such
Person in connection with such transaction, after deducting therefrom only
(a) reasonable and customary brokerage commissions, underwriting fees
and discounts, legal fees, finder's fees and other similar fees and
commissions payable by such Person,
(b) the amount of taxes payable in connection with or as a result of
such transaction, and
(c) payments required to be made to repay Indebtedness outstanding at
the time of such transaction that is secured by a Lien on the property or
assets sold (which Lien is permitted by Section 7.02(h)), and which is
required by the terms of the
21
<PAGE>
instrument creating such Lien or evidencing such Indebtedness secured
thereby to repay such Indebtedness;
in each case to the extent, but only to the extent, that the amounts so deducted
are, at the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of the Borrower and are properly attributable to such transaction
or to the asset that is the subject thereof.
Net Ericsson Related Expenses. At any date:
-----------------------------
(a) the aggregate amount of Ericsson Related Expenses as of such
date, minus
(b) the aggregate amount of all Restricted Ericsson Expenses as of
such date.
Net Income. For any period, net income (or loss), determined on a
----------
Consolidated basis, of the Borrower and its Subsidiaries determined in
accordance with GAAP for such period.
Net OPCS Other Costs. At any date, "Net Other Costs", as defined in the
--------------------
OPCS Loan Agreement, as of such date.
Net Other Costs. At any date:
---------------
(a) Other Costs as of such date, minus
(b) Restricted Other Costs as of such date.
Notes. The Notes substantially in the form of Exhibit A issued by the
----- ---------
Borrower hereunder.
OCI. Omnipoint Communications Inc., a Delaware corporation, together with
---
its successors.
OCI Equipment Expenses. As of any date of determination, the aggregate
----------------------
purchase price paid for CMS 40/PCS 1900 or IS-661 equipment and software
purchased from Ericsson pursuant to the Equipment Acquisition Agreement for use
primarily in the New York MTA, including without limitation base stations,
switching and other network infrastructure, software, materials and the
installation of the same but excluding handsets and their accessories, in each
case whether manufactured or provided by Ericsson or purchased by Ericsson from
other sources and resold to OCI or any of its Affiliates under the Equipment
Acquisition Agreement and services provided by Ericsson relating to the design,
engineering and other related services integral to such PCS Systems incurred on
or before such date.
22
<PAGE>
OHI. Omnipoint Holdings, Inc., a Delaware corporation, together with its
---
successors.
OII. Omnipoint Investment, Inc., a Delaware corporation, together with its
---
successors.
Omnipoint Common Stock. The common stock, par value $0.01 per share, of
----------------------
the Grandparent and its successors.
Omnipoint Services. Omnipoint Communications Services, LLC, a Delaware
------------------
limited liability company, together with its successors.
OPCS. OPCS Philadelphia Holdings, LLC, a Delaware limited liability
----
company (successor by way of merger to OPCS Philadelphia Holdings, Inc., a
Delaware corporation).
OPCS Advances. The "Advances", as defined in the OPCS Loan Agreement.
-------------
OPCS Commitments. The "Commitments", as defined in the OPCS Loan
----------------
Agreement.
OPCS Ericsson Related Expenses. At any date, "Ericsson Related Expenses",
------------------------------
as defined in the OPCS Loan Agreement, as of such date.
OPCS Loan Agreement. The Loan Agreement dated as of July 25, 1997 among
-------------------
OPCS, Ericsson and the lenders named therein, as amended, modified and
supplemented from time to time.
OPCS Net Ericsson Related Expenses. At any date, "Net Ericsson Related
----------------------------------
Expenses", as defined in the OPCS Loan Agreement, as of such date.
OPCS Other Costs. At any date, "Other Costs", as defined in the OPCS Loan
----------------
Agreement, as of such date.
Operating Subsidiary. Operations and each other Subsidiary of the
--------------------
Borrower that is engaged in the business of building out and operating one or
more BTAs on behalf of one or more License Subsidiaries.
Operations. Omnipoint Communications MB Operations, LLC, a Delaware
----------
limited liability company, together with its successors.
Other Cost Advances. At any date:
-------------------
(a) with respect to this Agreement, the lesser of
23
<PAGE>
(i) the amount, if any, by which the aggregate principal amount
of Tranche X Advances then outstanding shall exceed the aggregate
amount of Net Ericsson Related Expenses, net of Swedish Expenses as of
such date, and the aggregate principal amount of Handset Advances and
Interest Advances relating to this Agreement outstanding as of such
date, and
(ii) the aggregate amount of Net Other Costs as of such date; and
(b) with respect to the OPCS Loan Agreement, the lesser of
(i) the amount, if any, by which the aggregate principal amount
of OPCS Advances then outstanding shall exceed the aggregate amount of
OPCS Net Ericsson Related Expenses as of such date and the aggregate
principal amount of Handset Advances and Interest Advances relating to
the OPCS Loan Agreement outstanding as of such date, and
(ii) the aggregate amount of Net OPCS Other Costs as of such
date.
Other Costs. The aggregate purchase price paid (including amounts paid or
-----------
incurred with respect to any Permitted BTA on a date before the date that such
Permitted BTA shall have become a Permitted BTA) or being paid by the Borrower
and its Subsidiaries with the proceeds of an Advance hereunder simultaneously
with the making of such Advance for
(a) equipment and services approved by Ericsson (but excluding
equipment and services provided by Ericsson under the Equipment Acquisition
Agreement) that are:
(i) integral to the PCS Systems to be built out in such
Permitted BTA or such Permitted BTA and one or more other Permitted
BTAs (in any case other than any portions thereof theretofore disposed
of pursuant to an FCC License Partition),
(ii) purchased by the Borrower or an Operating Subsidiary, and
(iii) purchased in connection with infrastructure-related
construction, engineering and design relating to equipment purchased
from Ericsson, including site-acquisition costs and microwave-
relocation costs, and
(b) Real Estate located in any such Permitted BTA (other than any such
portion) with an aggregate acquisition price not exceeding $2,000,000 and
in each case that is subject to a first-priority lien in favor of the
Collateral Agent and that is acquired
24
<PAGE>
in connection with the operation of mobile switching centers, base station
controllers, base transceiver stations and/or home location registers,
but excluding, unless and to the extent otherwise consented to in writing by the
- --- ---------
Administrative Agent, any Excluded Other Costs.
Other Taxes. See (S)4.03(b).
-----------
Ownership Fraction. At any date, a fraction, expressed as a percentage,
------------------
that is equal to:
(a) a fraction, the numerator of which is the number of shares of
Voting Stock of the Borrower legally and beneficially owned by the Parent
as of such date and the denominator of which is the total number of shares
of such Stock outstanding as of such date, multiplied by
(b) a fraction, the numerator of which is the number of shares of
Voting Stock of the Parent legally and beneficially owned by the
Grandparent as of such date and the denominator of which is the total
number of shares of such Stock outstanding as of such date.
Parent. OPCS Two LLC, a Delaware limited liability company, together with
------
its successors.
Parent Pledge Agreement. See (S)8.14(b).
-----------------------
PBGC. The Pension Benefit Guaranty Corporation created by (S)4002 of
----
ERISA, or any Governmental Body succeeding to the functions thereof.
PCS. The business of providing mobile communications services through the
---
use of microcells on microwave broadband frequencies with numerous low-power
transmitters, each serving a small area, but excluding cellular telephone
services.
PCS System. A PCS radio-telephone system constructed and operated pursuant
----------
to an FCC License therefor held by a License Subsidiary.
Permitted BTA. At any date:
-------------
(a) any BTA the FCC License for which is listed in Part I, II or III
of Schedule 1.01 and is held by a License Subsidiary as of such date,
25
<PAGE>
(b) any BTA for which an FCC License is acquired at the time of or
prior to a disposition, as provided in (S)7.06(b)(iii)(B)(II), (III) and
(IV) and
(c) any other BTA acceptable to the Required Lenders the FCC License
for which is held by a License Subsidiary as of such date,
in any case other than any BTA that shall have become an Excluded BTA on or
before such date.
Permitted C-Block FCC License Transfer. A disposition, whether or not for
any consideration, of a C-Block FCC License in respect of a Permitted BTA as to
which all of the following are true:
(a) The Borrower or any of its Subsidiaries owes Indebtedness to the
FCC in respect of such FCC License and, after giving effect to such
disposition, neither the Borrower nor any Subsidiary shall have any
liability in respect of such Indebtedness.
(b) The transferee of such FCC License is (i) a Wholly Owned
Subsidiary of the Grandparent other than the Borrower or a Subsidiary of
the Borrower, or (ii) the FCC.
(c) Except in the case of a transfer directly to the FCC, such
disposition is effected by a written agreement in form and substance
reasonably satisfactory to the Required Lenders under which:
(i) such transferee agrees that, while any Advances are
outstanding:
(A) for so long as it shall own or hold such FCC License, it
will remain a Wholly Owned Subsidiary of the Grandparent, shall engage
in no activities other than the holding of such FCC License and have
no liabilities other than Indebtedness owing to the FCC in respect of
such FCC License;
(B) for so long as it shall own or hold such FCC License,
it shall not voluntarily allow such FCC License or any rights
thereunder to provide PCS services to be used other than by the
Borrower or a Subsidiary; and
(C) it shall not voluntarily transfer such FCC License or
any rights thereunder to any Person other than to the Borrower, a
Subsidiary of the Borrower or the FCC, and
26
<PAGE>
(ii) such transferee confirms that the Administrative Agent and the
Lenders are third-party beneficiaries of the obligations of the transferee
thereunder.
Permitted Liens. See (S)7.02.
---------------
Permitted Loan Agreement. As defined in the Intercreditor Agreement.
------------------------
Permitted Stock Transfer. Any direct or indirect issuance, sale,
------------------------
assignment or other transfer of shares of Stock of the Borrower (whether by the
Borrower or the Parent) after the date hereof, as to which all of the following
conditions shall have been satisfied as of the date of such transfer:
(a) after giving effect to such transfer, no Default shall have
occurred and be continuing;
(b) after giving effect to such transfer, the Parent shall own at
least a majority of each class and series of Stock of the Borrower then
outstanding;
(c) the transferee shall have entered into a guaranty in form and
substance satisfactory to the Required Lenders, except that recourse
thereon shall be limited to the Stock of the Borrower held by such
transferee, and shall have pledged such Stock (and delivered any stock
certificates evidencing such Stock) to the Collateral Agent pursuant to a
pledge agreement in form and substance satisfactory to the Required
Lenders;
(d) the Stock and stockholders of the Borrower shall not be subject
or parties to any agreement under which the shareholder of a majority of
the outstanding Voting Stock of the Borrower would not have day-to-day
control of the operations of the Borrower or that would be binding on any
Person acquiring such Stock by reason of realization thereon by the
Collateral Agent;
(e) all outstanding Stock of the Borrower shall be subject to
restrictions on transfer satisfactory in form and substance to Ericsson to
prevent its transfer to a competitor of Ericsson;
(f) the consideration received for such transfer shall be equal to
the fair-market value of the Stock transferred, as determined in good faith
by the Board of Directors of the Grandparent; and
(g) the entire proceeds of such transfer shall have been
contributed to the Borrower.
27
<PAGE>
Person. Any natural person, corporation, firm, joint venture, limited
------
liability company, partnership, association, enterprise, trust or other entity
or organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
Plan. With respect to any Loan Party or any ERISA Affiliate, at any time,
----
an employee pension benefit plan as defined in (S)3(2) of ERISA (other than a
Multiemployer Plan) that is covered by Title IV of ERISA or subject to the
minimum funding standards under (S)412 of the IRC and
(a) is maintained for the employees of the Borrower or any ERISA
Affiliate, or
(b) was so maintained and in respect of which the Borrower or any
ERISA Affiliate could have liability under (S)4064 or 4069 of ERISA in the
event that such plan has been or were to be terminated.
POPs. With respect to any BTA or geographic area included therein, the
----
population of such BTA or geographic area as set forth in the 1990 census of the
United States by the United States Census Bureau.
Portion of Excess Proceeds. With respect to any Person, the sale of any
--------------------------
BTA and any date of determination, a ratable portion (determined by reference to
the respective amounts of the Advances, other vendor-financing advances,
advances under other Permitted Loan Agreements and capital (including
Subordinated Debt) contributed to the Borrower by such Person and other Persons,
in each case as determined immediately after giving effect to any prepayment of
Advances and other vendor-financing advances and advances under other Permitted
Loan Agreements as a result of such sale) of the Excess Proceeds relating to
such sale.
Preceding Fiscal Quarter. See (S)7.05(d).
------------------------
Property. All types of real, personal, tangible, intangible or mixed
--------
property, including each FCC License held by a License Subsidiary.
Proposed C-Block General License Revocation Event. Any notice of proposed
-------------------------------------------------
rulemaking or other proposal by the FCC as to the possible adoption of any rule
or taking of any action that would be a C-Block General License Revocation Event
or any other event or circumstance that with the passage of time would become a
C-Block General License Revocation Event or that would be a C-Block General
License Revocation Event but for the existence of any stay or injunction then in
effect with respect thereto.
28
<PAGE>
Qualified Joint Venture. Any person as to which all of the Stock of which
-----------------------
is owned by the Borrower and/or any of its Subsidiaries and any other Person or
Persons that is not or are not Affiliates of the Borrower or competitors of
Ericsson and as to which the following conditions shall have been satisfied as
of the date on which such Person becomes a Qualified Joint Venture and at all
times thereafter:
(a) the Borrower or such Subsidiary owns, directly or indirectly through
one or more Wholly Owned Subsidiaries, at least a majority of each class and
series of Voting Stock of such Person, and such Person is a Subsidiary of the
Borrower;
(b) all of the Stock of such Person shall have been pledged to the
Collateral Agent on behalf of the Secured Parties as security, among other
things, for the obligations of the Loan Parties under the Loan Documents;
(c) all conditions and requirements specified in (S)6.18 shall have been
complied with respect to such Person;
(d) such Person is not subject to any restrictions that would violate
(S)7.17;
(e) the Stock and stockholders of such Person shall not be subject or
parties to any agreement under which the majority shareholder would not have
day-to-day control of the operations of such Person or that would be binding on
any Person acquiring such Stock by reason of realization thereon by the
Collateral Agent;
(f) the Stock of such Person held by anyone other than the Borrower and its
Restricted Subsidiaries shall not have the benefit of any special or
preferential rights not applicable to all Stock held by the Borrower and its
Restricted Subsidiaries; and
(g) all outstanding Stock of such Person is subject to restrictions on
transfer satisfactory in form and substance to Ericsson to prevent its transfer
to a competitor of Ericsson.
Rate Hedging Agreements. Any and all agreements, devices or arrangements
-----------------------
designed to protect at least one of the parties thereto from the fluctuations of
interest rates, exchange rates or forward rates applicable to such party's
assets, liabilities or exchange transactions, including, but not limited to
dollar-denominated or cross-currency interest-rate exchange agreements, forward-
currency-exchange agreements, interest-rate-cap or dollar-protection agreements,
forward-rate-currency or interest-rate options, puts and warrants, and any and
all cancellations, buy backs, reversals, terminations or assignments of any of
the foregoing.
RCRA. The Resource Conservation and Recovery Act of 1976, as amended, 42
----
USCA (S)6901 et seq.
29
<PAGE>
Real Estate. Any parcel of real property or any facility currently (or for
-----------
purposes of compliance with Environmental Laws, formerly) owned, operated or
controlled by the Borrower or any of its Subsidiaries.
Register. See (S)12.07(c).
--------
Reportable Event. The occurrence of any of the events set forth in
----------------
(S)4043(c) of ERISA or the regulations thereunder with respect to a Plan.
Required Lenders. At any date:
----------------
(a) Tranche X Lenders owed at least 66 2/3% in interest of the sum of
(i) the aggregate unpaid principal amount of the Tranche X Advances then-
outstanding, and (ii) the undrawn Tranche X Commitments then-outstanding,
and
(b) Tranche Y Lenders owed at least 66 2/3% in interest of the sum of
(i) the aggregate unpaid principal amount of the Tranche Y Advances then-
outstanding, and (ii) the undrawn Tranche Y Commitments then-outstanding.
Restricted Ericsson Expenses. At any date, the aggregate amount, without
----------------------------
duplication, of all Attributed Expenses relating to Ericsson Related Expenses
with respect to any Permitted BTA that shall have become an Excluded BTA or any
geographic area within a Permitted BTA for which the right to provide PCS
services shall have been disposed of pursuant to an FCC License Partition
permitted under (S)7.06(b)(iii) on or before such date.
Restricted OPCS Ericsson Expenses. At any date, "Restricted Ericsson
---------------------------------
Expenses", as defined in the OPCS Loan Agreement, as of such date.
Restricted OPCS Other Costs. At any date, "Restricted Other Costs", as
---------------------------
defined in the OPCS Loan Agreement, as of such date.
Restricted Other Costs. At any date, the aggregate amount, without
----------------------
duplication, of all Attributed Expenses relating to Other Costs with respect to
any Permitted BTA that shall have become an Excluded BTA or any geographic area
within a Permitted BTA for which the right to provide PCS services shall have
been disposed of pursuant to an FCC License Partition permitted under
(S)7.06(b)(iii) on or before such date.
Revenue. For any period, with respect to the Borrower and its
-------
Subsidiaries, on a Consolidated basis,
30
<PAGE>
(a) the sum, without duplication, of
(i) gross billings to subscribers, net of taxes and other direct
pass-through charges,
(ii) (if positive) revenue from the sale of equipment in the
ordinary course of business, net of the cost of such equipment,
(iii) so-called "roamer revenue", net of direct pass-through
charges, and
(iv) other revenue (in the case of resales net of associated
direct costs),
in each case as determined in accordance with GAAP, minus
(b) all revenue arising from payments by Affiliates (except where the
Affiliate is acting as a reseller of goods or services),
in each case as determined with respect to such period.
Second LIBOR Method. The terms and provisions of this Agreement relating
-------------------
to LIBOR Advances specified as being applicable when the Second LIBOR Method is
applicable under (S)2.11.
Second Optional Payment Date. With respect to any calendar month, the
----------------------------
second Trading Day after the 20th day of such calendar month (or, if such 20th
day is not a Trading Day, the next-following Trading Day).
Secured Parties. Collectively, the Administrative Agent, the Collateral
---------------
Agent, the Lenders and the other agents and lenders parties to the Intercreditor
Agreement.
Security Agreement. At any date, any Subsidiary Security Agreement,
------------------
Borrower Security Agreement, Parent Pledge Agreement and D-, E- and F- Block
Subsidiary Parent Pledge Agreement theretofore delivered that shall not have
been terminated and released in accordance with its terms.
Services Agreement. The Services Agreement substantially in the form of
------------------
Exhibit
D-1.
Significant Subsidiary. Any of (a) OCI or any of its Subsidiaries, (b)
----------------------
OPCS or any of
31
<PAGE>
its Subsidiaries, and (c) any "significant subsidiary" within the meaning of
Rule 1.02(w) of Regulation S-X promulgated under the Securities Exchange Act of
1934, as amended, but excluding for purposes of clause (c) any such Subsidiary
the sole asset of which is an FCC License purchased from the FCC in its "C-
block" auction.
Solvent. With respect to any Person on a particular date, the condition
-------
that on such date,
(a) the present fair salable value of the assets of such Person is
greater than the total amount that will be required to pay the probable
liabilities of such Person as and when they become due, including
Contingent Obligations, of such Person;
(b) such Person is paying, and believes that it will be able to pay in
the future, its debts generally as and when they become due; and
(c) such Person is not engaged in business or a transaction, or is not
about to engage in business or a transaction, for which such Person's
Property would constitute an unreasonably small amount of capital.
Stock. With respect to any Person, any and all shares of capital stock,
-----
partnership, membership or other interests or units, participations or
equivalent rights of or in such Person and interests, participations, warrants,
convertible securities or other equivalents (however designated) therein or with
respect thereto.
Subordinated Debt. Indebtedness of the Borrower as to which the holder
-----------------
thereof has executed a Subordination Agreement.
Subordination Agreement. A Subordination Agreement in substantially the
-----------------------
form of Exhibit G.
---------
Subsidiary. As to any Person, any corporation, association, partnership,
----------
joint venture or other business entity of which such Person and/or any
Subsidiary of such Person, directly or indirectly, either
(a) in respect of a corporation, owns or controls more than 50% of the
outstanding capital Stock having ordinary voting power to elect a majority
of the board of directors or similar managing body, irrespective of whether
a class or classes shall or might have voting power by reason of the
happening of any contingency, or
(b) in respect of an association, partnership, joint venture or other
business entity, is entitled to share in more than 50% of the profits and
losses, however determined.
32
<PAGE>
Subsidiary Guaranty. See (S)8.15(d).
-------------------
Subsidiary Security Agreement. See (S)8.14(e).
-----------------------------
Support Agreement. See (S)8.25.
-----------------
Swedish Expenses. With respect to any date, Ericsson Related Expenses as
----------------
of such date relating to CMS 40/PCS 1900 equipment and software manufactured in
and shipped from Sweden that constitute Eligible Swedish Goods and Services (as
defined in the Bank of America Loan Agreement) for which a Disbursement Claim
(as defined in the Bank of America Loan Agreement) has been made by Ericsson,
minus the aggregate amount of all Restricted Ericsson Expenses as of such date
in respect of such equipment and software.
Taxes. See (S)4.03(a).
-----
Termination Date. August 4, 2001.
----------------
Trading Day. Any day on which the securities exchange or over-the-counter
-----------
market to be used for purposes of determining the Market Price for Omnipoint
Common Stock, as provided in the definition of Market Price, is open for trading
in securities.
Trading Volume. At any Trading Day, if shares of Omnipoint Common Stock
--------------
are then primarily traded on a market that does not count sales and purchases as
separate transactions in determining trading volume for any Trading Day, the
trading volume for such shares announced by such market on such Trading Day, and
otherwise 50% of the trading volume for such shares announced by such market
on such Trading Day.
Tranche X Advances. See (S)2.01(a).
------------------
Tranche X Borrowing Base. At any date:
------------------------
(a) prior to August 4, 2001
(i) Net Ericsson Related Expenses, net of Swedish Expenses, as of
such date, plus
(ii) the lesser of:
(A) (1) the Maximum Other Cost Amount as of such date,
33
<PAGE>
minus
(2) on and after August 4, 1999 one half of the amount
calculated pursuant to clause (iii) below as of August 4,
1999 and
(B) the greater of:
(1) the aggregate amount of Net Other Costs and Excess
Handset Costs as of such date, minus the aggregate principal
amount of the Advances theretofore prepaid pursuant to
(S)3.02(e), and
(2) the lesser of:
(I) one-third of Net Ericsson Related Expenses as
of such date, and
(II) the aggregate amount of Net Other Costs and
Excess Handset Costs incurred as of such date, plus
(iii) (A) until August 4, 1999 interest accrued and paid or
payable on the Tranche X Advances and under the Bank of America
Loan Agreement and interest accrued on outstanding invoices under
the Letter Agreement dated as of February 9, 1998 between
Ericsson and the Borrower (whether or not paid) through May 4,
1999 and
(B) on and after August 4, 1999, the lesser of:
(1) the amount computed pursuant to clause (iii)(A)
above, and
(2) 10% of Net Ericsson Related Expenses,
in either case as determined as of such date, plus
(iv) the aggregate amount of any fees payable to EKN in respect
of any EKN Guarantees, and
(b) thereafter:
34
<PAGE>
(i) the aggregate principal amount of the Tranche X Advances as
of such date, minus
(ii) the aggregate amount, without duplication, of all Attributed
Expenses with respect to any Permitted BTA that shall have become an
Excluded BTA or any geographic area within a Permitted BTA that shall
have been disposed of in connection with an FCC License Partition
permitted under (S)7.06(b)(iii) as of such date (other than any
portion thereof related to Swedish Expenses).
Tranche X Borrowing Base Certificate. A certificate, in form and substance
------------------------------------
satisfactory to the Administrative Agent, duly certified by the chief or
principal financial or accounting officer of the Borrower, stating the amount of
the Tranche X Borrowing Base as of the date of such certificate and setting
forth in reasonable detail the calculation of the amount thereof.
Tranche X Commitment. For any Tranche X Lender at any date, the Tranche X
--------------------
Maximum Commitments as of such date, multiplied by such Tranche X Lender's
Tranche X Commitment Percentage as of such date.
Tranche X Commitment Percentage. For any Tranche X Lender, the percentage
-------------------------------
next to the heading "Tranche X Commitment Percentage" opposite its name on the
signature pages hereof or, if such Lender has entered into an Assignment and
Acceptance, in the Register maintained by the Administrative Agent pursuant to
(S)12.07(c).
Tranche X Lender. Any Lender for which there is a percentage greater than
----------------
zero next to the heading "Tranche X Commitment Percentage" opposite its name or
on the signature pages hereof or, if such Tranche X Lender has entered into an
Assignment and Acceptance, in the Register maintained by the Administrative
Agent pursuant to (S)12.07(c).
Tranche X Loan. A loan consisting of simultaneous Tranche X Advances of
--------------
the same Type made by the Tranche X Lenders.
Tranche X Maturity Date. The earlier of:
-----------------------
(a) August 4, 2006, and
(b) the date of the acceleration of the Tranche X Advances pursuant to
(S)3.02(c) or 10.01.
35
<PAGE>
Tranche X Maximum Commitments. At any date, an amount that is equal to:
-----------------------------
(a) $202,500,000, until Ericsson shall have advised the Borrower that
the Board of Directors, or other appropriate authorities, of LM Ericsson
Telefonaktiebolaget shall have approved the increase of the Tranche X
Maximum Commitment to $217,500,000, and thereafter $217,500,000, plus
(b) the sum of the Tranche Y Recovery Amounts as of such date with
respect to all Tranche Y Advances (other than Tranche Y Interest Advances)
that shall theretofore have been prepaid (other than prepayments pursuant
to (S) 3.02(g)(i)), plus
(c) the aggregate amount of the Transferred Commitments as of such
date, plus
(d) the aggregate principal amount of the Tranche Y Advances
theretofore converted into Tranche X Advances pursuant to (S)2.06(b),
minus
(d) the aggregate principal amount of the Tranche Y Advances at any
time outstanding (other than Tranche Y Interest Advances), minus
(e) the aggregate amount by which the Tranche X Maximum Commitments
shall have been permanently reduced pursuant to (S)2.12(c) on or prior to
such date.
Tranche Y Advances. The meaning specified in Section 2.01(b).
------------------
Tranche Y Commitment. For any Tranche Y Lender at any date, the Tranche Y
--------------------
Maximum Commitments as of such date, multiplied by such Tranche Y Lender's
Tranche Y Commitment Percentage as of such date.
Tranche Y Commitment Percentage. For any Tranche Y Lender, the percentage
-------------------------------
next to the heading "Tranche Y Commitment Percentage" opposite its name on the
signature pages hereof or, if such Lender has entered into an Assignment and
Acceptance, in the Register maintained by the Administrative Agent pursuant to
(S)12.07(c).
Tranche Y Initial Mandatory Payment Date. Any date on which the Tranche Y
----------------------------------------
Loans would be required to be paid or prepaid in full under (S)3.01(b) or
(S)3.02(g) but for provisions thereof pertaining to any limitation imposed by
(S)2.07(b)(VIII) on payments by delivery of Omnipoint Common Stock.
Tranche Y Interest Advances. Any Tranche Y Advance for which the Draw
---------------------------
Request with respect thereto specifies that the proceeds thereof will be used to
pay accrued and unpaid interest on then-outstanding Tranche Y Advances.
36
<PAGE>
Tranche Y Lender. Any Lender for which there is a percentage greater than
----------------
zero next to the heading "Tranche Y Commitment Percentage" opposite its name or
on the signature pages hereof or, if such Lender has entered into an Assignment
and Acceptance, in the Register maintained by the Administrative Agent pursuant
to (S)12.07(c).
Tranche Y Loan. A loan consisting of simultaneous Tranche Y Advances made
--------------
by the Tranche Y Lenders.
Tranche Y Maturity Date. The earlier of:
-----------------------
(a) August 4, 2007, unless at such date the Borrower shall have
elected to repay the Tranche Y Advances and interest thereon by delivery of
Omnipoint Common Stock and cannot pay all such amounts by such delivery by
reason of (S)2.07(b)(VIII), in which case such date shall be postponed by
successive 60 day periods until the Borrower either shall have elected
to pay all such amounts in cash or by such delivery and, if electing to pay
by such delivery, is not prevented from making such payment in full by such
delivery by reason of such Section, and
(b) the date of the acceleration of the Advances pursuant to
(S)3.02(d) or 10.01.
Tranche Y Maximum Commitments. At any date, an amount that is equal to:
-----------------------------
(a) $100,000,000, plus
(b) the aggregate principal amount of any Tranche Y Interest Advances
then outstanding, plus
(c) until August 4, 2003, accrued and unpaid interest on Tranche Y
Advances then outstanding, minus
(d) the amount by which the aggregate principal amount of Other Cost
Advances then outstanding under this Agreement and the OPCS Loan Agreement
shall exceed $100,000,000, minus
(e) the amount, if any, by which the aggregate principal amount of the
Tranche X Advances then outstanding shall exceed (i) $102,500,000, until
the Tranche X Maximum Commitments shall have been increased pursuant to
subclause (a) of the definition thereof to $217,500,000, and thereafter
$117,500,000, plus (ii) the Transferred Commitments on such date, minus
37
<PAGE>
(f) the aggregate amount by which the Tranche Y Maximum Commitments
shall have been permanently reduced pursuant to (S)2.12(c) on or prior to
such date.
Tranche Y Mirror Note. See (S)7.04(k).
---------------------
Tranche Y Notice Date. See (S)2.07(b)(II).
---------------------
Tranche Y Recovery Amount. At any date and for any Tranche Y Advances
-------------------------
(other than Tranche Y Interest Advances that shall theretofore have been
prepaid), an amount equal to the aggregate principal amount of such Tranche Y
Advances that shall have been prepaid in cash, plus the lesser of:
(a) the aggregate principal amount of such Tranche Y Advances that
shall have been prepaid by delivery of Omnipoint Common Stock, and
(b) the sum, for all Trading Days after the later of (A) the date of
such prepayment and (B) the date on which the Tranche Y Recovery Amount in
respect of all prior prepayments of Tranche Y Advances shall equal the
aggregate principal amount thereof, and up to such date of determination,
of the following amounts, as determined for each such Trading Day: (1) the
Trading Volume of Omnipoint Common Stock on such Trading Day, multiplied by
(2) the Market Price of Omnipoint Common Stock as of such Trading Day,
multiplied by (3) 0.25
Transferred Commitments. At any date, the aggregate amount by which the
-----------------------
Tranche X Maximum Commitments shall have been increased pursuant to (S)2.12(a).
Type. As to any Tranche X Loan, its nature as a Base Rate Loan or a LIBOR
----
Loan.
Voting Stock. Stock or similar interests, of any class or classes (however
------------
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
West Palm Beach BTA. BTA No. 469.
-------------------
Wholly Owned. As applied to any Subsidiary of a Person, a Subsidiary all
------------
the outstanding shares (other than directors' qualifying shares, if required by
law) of every class of Stock of which are at the time owned by such Person or by
one or more Wholly Owned Subsidiaries of such Person or by such Person and one
or more Wholly Owned Subsidiaries of such Person.
38
<PAGE>
Working Capital. With respect to any date of determination, the difference
---------------
between the "current assets" and "current liabilities" of the Borrower and its
Subsidiaries on a Consolidated basis as of such date of determination in
accordance with GAAP.
Section 1.02. Rules of Interpretation. (a) A reference to any document
-----------------------
or agreement shall include such document or agreement as amended, modified or
supplemented from time to time in accordance with its terms and the terms of
this Agreement.
(b) The singular includes the plural and the plural includes the singular.
(c) A reference to any law includes any amendment or modification to such
law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting entity
to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by GAAP, which terms are
defined in the Uniform Commercial Code as in effect in the State of New York,
have the meanings assigned to them therein.
(h) Reference to a particular "(S)" or Exhibit refers to that section or
that exhibit to this Agreement, unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Agreement as a whole and not to any particular section or
subdivision of this Agreement.
Section 1.03. Accounting Terms. Except as otherwise expressly provided
----------------
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Administrative Agent shall be prepared in accordance with the
following ("GAAP"):
----
(a) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors in
effect at December 31, 1997, and
(b) to the extent consistent with such principles, the accounting
practice of
39
<PAGE>
the Borrower reflected in its financial statements for the year ended at
the date referred to in clause (a) above;
provided that, if such Board after the date hereof shall promulgate or adopt
- --------
principles that are materially different from those in effect at December 31,
1996, the Borrower and the Lenders will endeavor in good faith to amend this
Agreement in order to amend (i) the definition of GAAP to include such different
principles, and (ii) the other provisions of this Agreement so as to reflect in
substance the same limitations and restrictions as in effect prior to such
amendment to the definition of GAAP. Prior to the effective date, if any, of
any such amendment, GAAP shall, however, continue to include only the principles
specified in clause (a) of the preceding sentence.
ARTICLE II.
THE LOANS
---------
Section 2.01. The Advances. (a) Each Tranche X Lender severally agrees,
------------
on the terms and conditions hereinafter set forth, to make advances (the
"Tranche X Advances") to the Borrower on any Business Day from the date hereof
- -------------------
until the earlier of:
(i) the Termination Date, and
(ii) the termination of the Tranche X Commitments in their entirety
pursuant to (S)2.12 or the termination of the Tranche X Commitments
pursuant to (S)10.01,
up to an aggregate principal amount not to exceed such Tranche X Lender's
Tranche X Commitment. Each Tranche X Loan shall be in an amount equal to at
least U.S.$1,000,000 (or, if less, the aggregate remaining unused amounts of all
Tranche X Lenders' Tranche X Commitments) (unless such Tranche X Loan is made in
order to pay Ericsson any amount owing to Ericsson or any Affiliate thereof, in
which case there shall be no minimum amount for such Tranche X Advance) and
shall consist of Tranche X Advances of the same Type made on the same day by the
Tranche X Lenders ratably according to their respective Tranche X Commitments.
In no event shall the aggregate principal amount of all Tranche X Advances
outstanding on any date exceed the lesser of:
(i) the Tranche X Maximum Commitments as of such date, and
(ii) the Tranche X Borrowing Base as of such date.
40
<PAGE>
(b) Each Tranche Y Lender severally agrees, on the terms and
conditions hereinafter set forth, to make advances (the "Tranche Y Advances") to
------------------
the Borrower on any Business Day from the date hereof until the earlier of:
(i) the Termination Date, and
(ii) the termination of the Tranche Y Commitments in their entirety
pursuant to (S)2.12 or the termination of the Tranche Y Commitments
pursuant to (S)10.01,
up to an aggregate principal amount not to exceed such Tranche Y Lender's
Tranche Y Commitment. Each Tranche Y Loan shall be in an amount equal to at
least U.S.$1,000,000 (or, if less, the aggregate remaining unused amounts of all
Tranche Y Lenders' Tranche Y Commitments) (unless such Tranche Y Loan is to be
comprised of Tranche Y Interest Advances, in which case there shall be no
minimum amount for such Tranche Y Advance) and shall consist of Tranche Y
Advances made on the same day by the Tranche Y Lenders ratably according to
their respective Tranche Y Commitments.
In no event shall the aggregate principal amount of all Tranche Y Advances
available for borrowing on any date exceed the Tranche Y Maximum Commitments as
of such date, minus the Tranche Y Advances then outstanding.
Section 2.02. Making the Advances. (a) Except as otherwise provided in
-------------------
(S)2.02(b), each Loan shall be made on notice, given not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Loan in the case of a Loan consisting of LIBOR Advances (or, while the First
LIBOR Method is applicable, such shorter period to which the Administrative
Agent may consent), or the first Business Day prior to the date of the proposed
Loan in the case of Tranche X Loan consisting of Base Rate Advances or a Tranche
Y Loan, by the Borrower to the Administrative Agent, which shall give to each
Applicable Lender prompt notice thereof by telecopier or telex. Each such
notice of a Loan (a "Draw Request") shall be by telecopier or telex,
------------
substantially in the form of Exhibit B hereto, specifying therein:
---------
(i) the requested date of such Loan (which shall be a Business Day);
(ii) whether such Loan is a Tranche X Loan or a Tranche Y Loan;
(iii) if such Loan is a Tranche X Loan, the requested Type of
Advances comprising such Loan; provided that:
(A) while the First LIBOR Method is applicable, the Borrower may
not request Advances of one Type while there are Advances of the other
Type outstanding, and
41
<PAGE>
(B) while the Second LIBOR Method is applicable, the Borrower may
not request that Advances be LIBOR Advances if, after giving effect to
such Advances, there would be more than three different Interest
Periods then in effect;
(iv) if such Loan is a Tranche Y Loan, whether the proceeds of such
Loan will be used to pay accrued and unpaid interest on the outstanding
Tranche Y Advances;
(v) the requested aggregate principal amount of such Loan; and
(vi) the account to which the proceeds of such Loan shall be paid.
Each Draw Request:
(A) with respect to a Tranche X Loan shall be accompanied by a Tranche
X Borrowing Base Certificate that, among other things, shows the Tranche X
Borrowing Base as of the date of such Draw Request;
(B) with respect to a Tranche X Loan or a Tranche Y Loan shall be
accompanied by a certificate that shows the Tranche X Maximum Commitment or
the Tranche Y Maximum Commitment, as applicable, as of the date of such
Draw Request and sets forth in reasonable detail the calculation of the
amount thereof; and
(C) shall be accompanied such additional documents as may be required
by Article IX.
Each Applicable Lender shall, before 12:00 noon (New York City time) on the
date of such Loan, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative Agent's Account in
same-day funds, such Lender's ratable portion of such Loan. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Articles VIII and IX, the Administrative
Agent will wire transfer same-day funds in the aggregate principal amount of
such Loan to such account as the Borrower shall have specified in its Draw
Request. If the Administrative Agent shall receive such funds and if such
applicable conditions shall be fulfilled prior to 12:00 A.M. (New York City
time) on the date of any proposed Loan, the Administrative Agent shall commence
the wire transfer (or direct its bank to commence the wire transfer) of such
funds to such account by 2:00 P.M. (New York City time).
42
<PAGE>
(b) Anything in subsection (a) above to the contrary notwithstanding, (i)
the Borrower may not select LIBOR Advances for any Tranche X Loan if the
aggregate amount of such Loan is less than $5,000,000 or if the obligation of
the Tranche X Lenders to make LIBOR Advances shall then be suspended pursuant to
(S)2.05 or 4.01 and (ii) there shall be no more than three Interest Periods for
LIBOR Advances at any one time in effect.
(c) Each Draw Request shall be irrevocable and binding on the Borrower. In
the case of any Tranche X Loan that the related Draw Request specifies is to be
comprised of LIBOR Advances and while the Second LIBOR Method is applicable, the
Borrower shall indemnify each Applicable Lender against any loss, cost or
expense incurred by such Applicable Lender as a result of any failure to fulfill
on or before the date specified in such Draw Request for such Loan the
applicable conditions set forth in Articles VIII and IX, including any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Applicable Lender to fund the Advance to be made by such Applicable Lender as
part of such Loan when such Advance, as a result of such failure, is not made on
such date.
(d) Unless the Administrative Agent shall have received notice from an
Applicable Lender prior to the date of any Loan that such Applicable Lender will
not make available to the Administrative Agent such Lender's ratable portion of
such Loan, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Loan in
accordance with subsection (a) of this (S)2.02 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Applicable Lender shall
not have so made such ratable portion available to the Administrative Agent,
such Applicable Lender and the Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid to the Administrative Agent,
at (i) in the case of the Borrower, the interest rate applicable at the time to
Advances comprising such Loan and (ii) in the case of such Applicable Lender,
the Federal Funds Rate. If such Applicable Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Applicable Lender's Advance as part of such Loan for purposes of
this Agreement.
(e) The failure of any Lender to make the Advance to be made by it as part
of any Loan shall not relieve any other Applicable Lender of its obligation, if
any, hereunder to make its Advance on the date of such Loan, but no Lender shall
be responsible for the failure of any other Lender to make the Advance to be
made by such other Lender on the date of any Loan.
Section 2.03. Fees. (a) Usage Fee. The Borrower will to pay to the
Administrative Agent for the account of each Applicable Lender a usage fee equal
to 1.50% per annum of the
43
<PAGE>
outstanding principal amount of each Tranche X Advance for the period from and
including the date on which such Advance is made through but excluding the
earlier of the date on which such Advance is repaid or prepaid and August 4,
2001. Such usage fee shall be payable in full on August 4, 2001; provided that
--------
no usage fee shall be payable if all Tranche X Advances shall have been prepaid
in full pursuant to (S)3.02 or 3.03 prior to August 4, 2001.
(b) Syndication Fee. If Ericsson shall sell or otherwise assign all or any
---------------
portion of any Advances owing to it or any of its Commitments hereunder to any
Person other than an Affiliate of Ericsson, the Borrower shall pay to Ericsson
such fee as is actually payable to any such Person in connection with such sale
or assignment, up to a maximum amount equal to 2.00% of the aggregate principal
amount of the Advances or Commitments so sold or assigned.
(c) Agents' Fees. The Borrower shall pay to the Administrative Agent (if
------------
other than Ericsson or any of its Affiliates) and the Collateral Agent for their
own respective accounts such reasonable and customary fees as may from time to
time be agreed between the Borrower and each such Agent.
Section 2.04. Interest. (a) Except as provided in subsection (c) below,
--------
the Borrower shall pay interest on the unpaid principal amount of each Tranche X
Advance owing to each Applicable Lender from and including the date of such
Advance through but excluding the date on which such principal amount shall be
paid in full, at the following rates per annum:
(i) During such periods as such Advance is a Base Rate Advance, a rate
per annum equal at all times to the sum of (A) the Base Rate in effect from
time to time, plus (B) the Applicable Margin in effect from time to time
and applicable to such Advance, payable in arrears quarterly on the last
day of each March, June, September and December during such periods and on
the Maturity Date with respect to such Advance.
(ii) During such periods as such Advance is a LIBOR Advance, a rate
per annum equal at all times during each Interest Period for such Advance
(or, if the First LIBOR Method is applicable, during each Interest Period
while such Advance is outstanding as a LIBOR Advance) to the sum of (A)
LIBOR for such Interest Period for such Advance, plus (B) the Applicable
Margin in effect from time to time and applicable to such Advance, payable
in arrears on the last day of such Interest Period and on the date on which
such Advance shall be Converted or repaid or prepaid, in whole or in part.
(b) Except as provided in subsection (c) below, the Borrower shall pay
interest on the unpaid principal amount of each Tranche Y Advance owing to each
Applicable Lender
44
<PAGE>
from and including the date of such Advance through but excluding the date on
which such principal amount shall be paid in full, at:
(i) until August 4, 2003, the rate of 8% per annum;
(ii) for each period beginning on each August 4 and ending on the next
following July 31, beginning with the period beginning on August 4, 2003,
the rate per annum that is 2% higher than the rate per annum that was
applicable immediately prior to such date; and
(iii) after any Tranche Y Initial Mandatory Payment Date, the rate of
8% per annum.
All interest payable pursuant to this subsection (b) shall be payable in arrears
semi-annually on the 31st day of each July and January during such periods and
on the Tranche Y Maturity Date.
(c) Upon the occurrence and during the continuance of an Event of Default
under (S)10.01(a), the Borrower shall pay interest on
(i) the unpaid principal amount of each Advance owing to each Lender,
payable in arrears on the dates referred to in clause (a) or (b) above, at
a rate per annum equal at all times to 4.00% per annum above the rate per
annum then required to be paid on such Advance pursuant to clause (a) or
(b) above, and
(ii) the amount of any interest, fee or other amount payable hereunder
that is not paid when due, from the date such amount shall be due until
such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at
all times to 4.00% per annum above the rate per annum then required to be
paid on Base Rate Advances pursuant to clause (a)(i) above.
Section 2.05. Interest Rate Determination. (a) If, with respect to any
---------------------------
LIBOR Advances, the Required Lenders (other than any Tranche Y Lenders) notify
the Administrative Agent that LIBOR for any Interest Period for such Advances
will not adequately reflect the cost to such Required Lenders of making, funding
or maintaining their respective LIBOR Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Applicable
Lenders, whereupon:
(i) each LIBOR Advance will automatically, on the last day of the
then-existing Interest Period therefor, Convert into a Base Rate
Advance, and
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(ii) (A) while the First LIBOR Method is applicable, the obligation
of the Applicable Lenders to make or to Convert Advances into, LIBOR
Advances shall be suspended as of the last day of the then-existing
Interest Period therefor, and
(B) while the Second LIBOR Method is applicable, the obligation
of the Applicable Lenders to make, or to Convert Advances into, LIBOR
Advances shall be suspended immediately,
until such time as the Administrative Agent shall notify the Borrower and
the Lenders (other than any Tranche Y Lenders) that the circumstances
causing such suspension no longer exist.
(b) On the date on which the aggregate unpaid principal amount of all LIBOR
Advances shall be reduced, by payment or prepayment or otherwise, to less than
$5,000,000, such Advances shall automatically Convert into Base Rate Advances.
(c) Upon the occurrence and during the continuance of any Event of Default
under (S)10.01(a):
(i) each LIBOR Advance will automatically, on the last day of the
then-existing Interest Period therefor, Convert into a Base Rate
Advance, and
(ii) (A) while the First LIBOR Method is applicable, the obligation
of the Applicable Lenders to make, or to Convert Advances into, LIBOR
Advances shall be suspended as of the last day of the then-existing
Interest Period therefor, and
(B) while the Second LIBOR Method is applicable, the obligation
of the Applicable Lenders to make, or to Convert Advances into, LIBOR
Advances shall be suspended immediately.
(d) If the Administrative Agent cannot determine LIBOR for any LIBOR
Advances:
(i) the Administrative Agent shall forthwith notify the Borrower and
the Applicable Lenders that the interest rate cannot be determined for such
LIBOR Advances,
(ii) each such Advance will automatically, on the last day of the
then-existing Interest Period therefor, Convert into a Base Rate Advance,
and
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<PAGE>
(iii) (A) while the First LIBOR Method is applicable, the obligation
of the Applicable Lenders to make, or to Convert Advances into, LIBOR
Advances shall be suspended as of the last day of the then-existing
Interest Period therefor, and
(B) while the Second LIBOR Method is applicable, the obligation
of the Applicable Lenders to make, or to Convert Advances into, LIBOR
Advances shall be suspended immediately,
until the Administrative Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
Section 2.06. Conversion of Advances. The Borrower may on any Business
----------------------
Day, upon notice given to the Administrative Agent not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of (S)(S)2.07 and 2.09, Convert all
Tranche X Advances of one Type comprising the same Loan into Tranche X Advances
of the other Type; provided that,
--------
(a) while the Second LIBOR Method is applicable,
(i) any Conversion of LIBOR Advances into Base Rate Advances
shall be made only on the last day of an Interest Period for such
LIBOR Advances, and
(ii) the Borrower may not Convert Base Rate Advances into LIBOR
Advances if, (A) after giving effect to such Conversion, there would
be more than three Interest Periods in effect or (B) the Advances to
be Converted would be less than the minimum amount specified in
(S)2.02(b), and
(b) while the First LIBOR Method is applicable, the Borrower may not
Convert any Advances of one Type into Advances of the other Type unless it
Converts all Advances of one Type into Advances of the other Type.
Each such notice of a Conversion shall, within the restrictions specified above,
specify (x) the date of such Conversion, and (y) the Advances to be Converted.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
Section 2.07. Payments and Computations. (a) Except as provided in
-------------------------
subsection (b) below, the Borrower shall make each payment hereunder and under
the Notes not later than 11:00 A.M. (New York City time) on the day when due in
U.S. dollars to the Administrative Agent at the Administrative Agent's Account
in same-day funds.
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<PAGE>
(b) Subject to the terms and conditions contained in this subsection (b)
and except as otherwise provided herein, the Borrower shall have the option to
make:
(i) after August 4, 2003, any payment that is due in respect of
interest on or principal of any Tranche Y Loan hereunder, and
(ii) at any date any such payment in connection with an optional or
mandatory prepayment of all or any portion of the Tranche Y Loans,
by delivering to the Administrative Agent in satisfaction of all or any part of
such payment on the date when due a whole number of shares of Omnipoint Common
Stock that is at least equal to:
(A) the amount of such payment that is to be made by delivery of
Omnipoint Common Stock, divided by
(B) 90% of (1) in the case of any such payment after any Tranche Y
Initial Mandatory Payment Date, the Market Price of a share of Omnipoint
Common Stock, as determined as of the Trading Day immediately preceding the
Tranche Y Notice Date relating to such Tranche Y Initial Mandatory Payment
Date, and (2) in any other case, the Market Price of a share of Omnipoint
Common Stock, as determined as of the Trading Day immediately preceding the
Tranche Y Notice Date relating to such payment.
Such shares shall be delivered by 10:00 a.m. (New York City time) on the day of
any payment, at the election of each Tranche Y Lender by notice to the Borrower,
either by (x) delivery of certificates in the name of such Tranche Y Lender or
its designee evidencing such Shares, or (y) crediting such Shares in the name of
such Tranche Y Lender or its designee with a depository selected by such Tranche
Y Lender. Each Tranche Y Lender may notify the Borrower from time to time of
the manner in which it desires to receive such Omnipoint Common Stock. In the
absence of such notice, delivery to a Tranche Y Lender shall be made as provided
in clause (x) of the second-preceding sentence.
The Borrower shall have the option to make a payment by delivery of
Omnipoint Common Stock as provided in this subsection (b) only if each of the
following shall be true at the time of such payment:
(I) A registration statement shall then be effective with respect to
the shares to be delivered in connection with such payment, the Grandparent
shall then be in compliance with its obligations under (S) 8 of the Support
Agreement and the Tranche Y Lenders shall not then be prohibited from selling
such shares under such registration statement or otherwise.
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<PAGE>
(II) The Borrower shall have given irrevocable advance written notice
to the Administrative Agent and each Tranche Y Lender by 10:00 a.m. (New
York City time) on the Trading Day immediately preceding the date of such
payment that it is making such payment by delivery of Omnipoint Common
Stock (the date on which such notice is given being the "Tranche Y Notice
----------------
Date").
----
(III) There shall be only one class or series of common stock of the
Grandparent, and the rights and benefits of the Omnipoint Common Stock
shall not have been amended or otherwise modified in any material respect
so as to differ from the rights and benefits applicable to the Omnipoint
Common Stock as of the date hereof.
(IV) It shall be possible to determine the Market Price of shares of
Omnipoint Common Stock on the applicable Trading Day under clause (B)
above.
(V) No Event of Default shall have occurred and be continuing, and no
event of the nature specified in (S)10.01(e) or (f) shall have occurred
with respect to the Grandparent or any Significant Subsidiary of the
Grandparent not specified in such Section.
(VI) If such payment is a prepayment of the Tranche Y Advances
pursuant to (S)3.03, such payment shall occur only on the First Optional
Payment Date or the Second Optional Payment Date of any calendar month.
(VII) The delivery of shares of Omnipoint Common Stock to any Tranche
Y Lender would not violate any FCC foreign-ownership or other regulations
then applicable or any other United States federal or state law or
regulation then applicable.
(VIII) Unless Tranche Y Lenders holding at least a majority in
aggregate principal amount of the Tranche Y Loans at any time outstanding shall
have waived compliance by the Borrower with the condition set forth in this
clause (VIII), the aggregate number of shares of Omnipoint Common Stock
delivered on the date of such payment, together with the aggregate number of
such shares delivered since the same day of the third calendar month immediately
preceding the date of such payment (including for purposes of counting such
months the calendar month in which the date of such payment occurs) (or, if
there is not a counterpart day in such third-preceding calendar month) may not
exceed 4.99% of the issued and outstanding shares of Omnipoint Common Stock
(after giving effect to any issuance of such shares in connection with any such
payment), except that
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<PAGE>
(X) if any payment by way of delivery of Omnipoint Common Stock is
made on a First Optional Payment Date and no other payment by way of delivery of
Omnipoint Common Stock is made thereafter prior tp the second next-following
First Optional Payment Date, a payment may be made by delivery of Omnipoint
Common Stock up to an additional 4.99% of the issued and outstanding shares of
Omnipoint Common Stock, on such second next-following First Optional Payment
Date, and (y) if any payment by way of delivery of Omnipoint Common Stock is
made on a Second Optional Payment Date and no other payment by way of delivery
of Omnipoint Common Stock is made thereafter prior to the second next following
Second Optional Payment Date, a payment may be made by way of delivery of
Omnipoint Common Stock up to an additional 4.99% of the issued and outstanding
shares of Omnipoint Common Stock on such second next-following Second Optional
Payment Date.
(IX) No such payment may be made unless, at the date of such payment,
the Grandparent shall have delivered to the Administrative Agent a
certification that at such date the Grandparent is not (and would not be
with the passage of time) required to file a report on form 8-K (or any
successor thereto) with the Securities and Exchange Commission and no event
has occurred on or prior to such date for which the Grandparent is required
to file such a report within 15 days after the date of such payment.
If the Borrower shall have elected to make any payment in respect of Tranche Y
Advances by delivery of Omnipoint Common Stock, it shall deliver Omnipoint
Common Stock to all Tranche Y Lenders ratably in accordance the portion of any
such payment to be made by delivery of Omnipoint Common Stock and the respective
amounts owing to the Tranche Y Lenders as of such date.
At any time by notice to the Administrative Agent the Borrower may
irrevocably waive its option to make any payment by delivery of Omnipoint Common
Stock pursuant to this subsection (b).
If the Borrower shall have elected to make any payment in respect of
Tranche Y Advances by delivery of Omnipoint Common Stock, it shall deliver
Omnipoint Common Stock to all Tranche Y Lenders ratably in accordance the
portion of any such payment to be made by delivery of Omnipoint Common Stock and
the respective amounts owing to the Tranche Y Lenders as of such date, except
that if the condition set forth in clause (VI) above of the preceding sentence
is not met with respect only to certain Tranche Y Lenders, the Borrower may pay
such Tranche Y Lenders cash while paying the other Tranche Y Lenders by delivery
of Omnipoint Common Stock.
Each Tranche Y Lender will observe any applicable Federal securities
laws in purchasing or selling Omnipoint Common Stock or options with respect
thereto.
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<PAGE>
(c) The Administrative Agent will, promptly after its receipt thereof
cause:
(i) to be distributed funds of the kind received relating to the
payment of principal or interest or usage fees and other amounts ratably
(other than amounts payable pursuant to (S)4.02, 4.03 or 12.04(c)) to the
Applicable Lenders for the account of their respective Applicable Lending
Offices, and funds of the kind received relating to the payment of any
other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement, and
(ii) to be distributed to the Tranche Y Lenders entitled thereto
promptly after its receipt thereof any stock certificates distributed to it
pursuant to subsection (b) above.
Upon the Administrative Agent's acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
(S)12.07(d), from and after the effective date specified in such Assignment and
Acceptance, the Administrative Agent shall make all payments hereunder and under
the Notes (whether in cash or, if applicable, stock) in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(d) All computations of interest and fees shall be made by the
Administrative Agent on the basis of a year of 360 days, for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest or fees are payable, except that computations of
interest on Tranche Y Advances shall be made by the Administrative Agent on the
basis of a year of 360 days comprised of 12 30-day months. Each determination
by the Administrative Agent of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(e) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next-
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or usage fee, as the case may
be; provided that, if such extension would cause payment of interest on or
--------
principal of LIBOR Advances to be made in the next-following calendar month,
such payment shall be made on the next-preceding Business Day.
(f) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due and owing to the
Applicable Lenders hereunder
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<PAGE>
that the Borrower will not make such payment in full, the Administrative Agent
may assume that the Borrower has made such payment in full to the Administrative
Agent on such date and the Administrative Agent may, in reliance upon such
assumption, cause to be distributed to each Applicable Lender on such due date
an amount equal to the amount then due such Applicable Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Applicable Lender shall repay to the Administrative
Agent forthwith on demand such amount distributed to such Applicable Lender
together with interest thereon, for each day from the date such amount is
distributed to such Applicable Lender until the date such Applicable Lender
repays such amount to the Administrative Agent, at the Federal Funds Rate.
(g) To the extent permitted by law, all payments by the Borrower hereunder
and under any of the other Loan Documents shall be made without setoff or
counterclaim. Without limitation of the preceding sentence, to the extent
permitted by law, the Borrower's obligation to pay all amounts due under the
Loans shall not be affected by any circumstance whatsoever, including:
(i) any set-off, counterclaim, recoupment, deduction, abatement,
suspension, diminution, reduction, defense or other right which the
Borrower may have against Ericsson for any reason whatsoever arising under
or pursuant to the Equipment Acquisition Agreement or otherwise relating to
the purchase of goods, other property or services from or by Ericsson;
(ii) any defect in the condition, design, operation or fitness for use
of, or any damage to or loss or destruction of, any equipment or material
provided by Ericsson;
(iii) any actual or alleged default by Ericsson or any other Person
under the Equipment Acquisition Agreement; or
(iv) any other fact or circumstance relating to the Equipment
Acquisition Agreement.
No payment hereunder shall affect any rights of the Borrower under any other
agreement with Ericsson.
Section 2.08. Sharing of Payments, Etc. If any Lender shall obtain any
------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to (S)4.02, 4.03 or 12.04(c)) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to
share the excess
52
<PAGE>
payment ratably with each of them; provided that, if all or any portion of such
--------
excess payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender shall repay to the
purchasing Lender the purchase price to the extent of such recovery together
with an amount equal to such Lender's ratable share (according to the proportion
of (a) the amount of such Lender's required repayment to (b) the total amount so
recovered from the purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total amount so recovered.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this (S)2.08 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
Section 2.09. Use of Proceeds. (a) The proceeds of Tranche X Advances
---------------
shall be available (and the Borrower shall use such proceeds) for the general
corporate and working-capital purposes of the Borrower and its Subsidiaries,
including the payment of interest hereunder and under the Bank of America Loan
Agreement and the payment of fees owing to EKN in respect of the EKN Guarantees.
(b) The proceeds of Tranche Y Advances shall be available (and the Borrower
shall use such proceeds) for any purpose for which Tranche X Advances shall be
permitted to be used, and to make loans to the Grandparent permitted under
(S)7.04(j).
Section 2.10. The Notes. The Borrower irrevocably authorizes each Lender
---------
to make or cause to be made an appropriate notation on the Schedule attached to
such Lender's Note of the making of Loans or the receipt of payments. The
amount of the Loans set forth on such Schedule, and the applicable tranches
thereof, shall be prima facie evidence of the principal amount thereof owing and
-----------
unpaid to such Lender, but the failure to record, or any error in so recording,
any such amount on such Schedule shall not limit or otherwise affect the
obligations of the Borrower hereunder or under the Notes to make payments of
principal of or interest on the Notes when due.
Section 2.11. First LIBOR Method and Second LIBOR Method. The First
------------------------------------------
LIBOR Method shall be applicable at all times until such time as the Second
LIBOR Method becomes applicable. If there is a Lender in addition to or other
than Ericsson (other than an Affiliate of Ericsson) and the Administrative Agent
at the direction of any Lender shall have notified the Borrower that the Second
LIBOR Method shall be applicable, the Second LIBOR Method shall become
applicable immediately as of the date of such notice; provided that, if any
--------
LIBOR Advances are then outstanding, the Second LIBOR Method shall become
applicable on the last day of the then-existing Interest Period for such LIBOR
Advances. After becoming applicable, the Second LIBOR Method shall remain
applicable at all times thereafter.
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Section 2.12. Increases, Reduction or Termination of the Commitments.
------------------------------------------------------
(a) At any time when there shall be no undrawn Tranche X Commitments
outstanding, the Borrower may, upon at least three Business Days' notice to the
Administrative Agent, increase the amount of the Tranche X Maximum Commitments
by all or a portion of the unused portions of the OPCS Commitments. Any such
notice shall state the amount of such unused commitments by which the Tranche X
Maximum Commitments shall be increased and shall be accompanied by (i) a
certificate from OPCS stating that (A) it will not draw on such unused portion
of the applicable commitments thereunder until it shall have received a notice
from the Administrative Agent stating that such unused portion is again
available to be drawn (which notice is to be provided at such time after the
repayment of Advances in respect of Transferred Commitments) and (B) any draw on
such unused portion will be an "Event of Default" as defined in the OPCS Loan
Agreement; and (ii) a Draw Request for a Tranche X Loan in an aggregate
principal amount equal to the amount by which the Tranche X Maximum Commitments
will be increased.
(b) The Borrower may, upon at least three Business Days' notice to the
Administrative Agent, permanently terminate in whole or reduce in part the
unused portions of any Commitments with respect to any tranche of Loans;
provided that each such partial reduction:
- --------
(i) with respect to Commitments relating to any tranche of Loans
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof (or, if less, the aggregate remaining unused
amounts of all Applicable Lenders' Commitments in respect of such tranche
of Loans), and
(ii) shall be made ratably among the Applicable Lenders in accordance
with their respective Commitments in respect of such tranche of Loans.
Upon any such reduction, if the Borrower shall so specify, the Administrative
Agent shall deliver to OPCS, a notice stating that the applicable portion of the
unused OPCS Commitment that OPCS had previously agreed not to draw is again
available to be drawn.
(c) (i) The Tranche X Maximum Commitments or the Tranche Y Maximum
Commitments, as applicable, shall be automatically and permanently reduced
as of any date on which Advances are prepaid pursuant to (S)3.02(a), (b),
(c), (f) or (S)3.03, by the aggregate principal amount of the Advances so
prepaid, except that the Tranche X Maximum Commitment shall not be reduced
------
in the event of a prepayment of Tranche X Advances with the proceeds of an
advance under the Bank of America Loan Agreement.
(ii) The Tranche X Maximum Commitments or the Tranche Y Maximum
Commitments other than Tranche Y Interest Advances, as applicable, shall be
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automatically and permanently reduced or prepaid from time to time as
necessary to ensure that the total of the Tranche X Maximum Commitments,
the Tranche Y Maximum Commitments (other than in respect of Tranche Y
Interest Advances) and the maximum committed amount under the Bank of
America Loan Agreement divided by the total number of POPs in all Permitted
BTAs does not at any time exceed $32. Each such reduction shall be made,
first, to the Tranche X Maximum Commitments (as specified by the Borrower),
and, second, to the Tranche Y Advances.
Each such reduction shall be made ratably among the Lenders in accordance with
their respective Commitments.
(d) Termination. On the Termination Date, except for purposes of
-----------
(S)3.02(f), the then-remaining undrawn Commitments of the Lenders shall be
automatically terminated.
ARTICLE III.
REPAYMENT AND PREPAYMENT OF THE LOANS
-------------------------------------
Section 3.01. Repayment. (a) On each May 4, August 4, November 4 and
---------
February 4 within the periods specified in the table below (or, if such day is
not a Business Day, on the next-preceding Business Day), the Borrower will repay
a ratable aggregate principal amount of each Tranche X Advance forming part of
the same Loan equal to the percentage specified in the table below opposite such
periods of the greatest aggregate principal amount of Advances outstanding on
any date prior to the date of such repayment.
<TABLE>
<CAPTION>
========================================================
Payment Date Percentage
- --------------------------------------------------------
<S> <C>
From and including November 4, 2001 to
and including the August 4, 2003 3.75%
- --------------------------------------------------------
From and including November 4, 2003 to
and including August 4, 2004 5.00%
- --------------------------------------------------------
From and including November 4, 2004 to
and including August 4, 2006 6.25%
========================================================
</TABLE>
(b) On the Maturity Date applicable to any Advances, the Borrower shall
repay the aggregate then-outstanding principal amount of such Advances, together
with any and all accrued and unpaid interest thereon and all other amounts due
and owing hereunder, under the Notes and under the other Loan Documents.
55
<PAGE>
Section 3.02. Mandatory Prepayments of Loans. (a) No later than three
------------------------------
Business Days after its receipt of any Net Cash Proceeds referred to in clause
(i) below, the Borrower shall prepay Advances in an aggregate principal amount
equal to
(i) the Net Cash Proceeds from the direct or indirect sale of any
assets of the Borrower and/or any of its Subsidiaries (other than any sale
of inventory and other goods in the ordinary course of business or any
disposition by way of an FCC License Transfer or an FCC License Partition
permitted under (S)7.06(b)(iii)) that is otherwise permitted under this
Agreement during any calendar year, to the extent such aggregate Net Cash
Proceeds received during such calendar year shall exceed $5,000,000
multiplied by
(ii) a fraction, (A) the numerator of which is the aggregate principal
amount of the Advances outstanding at the time of such sale, and (B) the
denominator of which is such aggregate principal amount, plus the aggregate
principal amount of all Indebtedness outstanding at the time of such sale
under all Permitted Loan Agreements the loans under which are required to
be prepaid with such Net Cash Proceeds, to the extent the Intercreditor
Agreement permits such prepayment.
Any prepayment of Advances under this Agreement pursuant to this subsection (a):
(x) shall be applied to the prepayment, first, of Tranche X Advances,
second, of Tranche Y Interest Advances, and third, of Tranche Y Advances
other than Tranche Y Interest Advances;
(y) shall be applied to the prepayment of a ratable principal amount
of Advances forming part of the same Loan then outstanding; and
(z) shall not reduce the principal amount of Advances required to be
repaid on any date pursuant to (S)3.01(a), to the extent that such Advances
are outstanding on such date.
No prior prepayment of Advances shall reduce the principal amount of the
Advances required to be prepaid pursuant to this subsection (a).
(b) If, at any time after the occurrence of any FCC License Transfer or FCC
License Partition as a result of which any Indebtedness under any Permitted Loan
Agreement is required to be prepaid, the Borrower shall make any Distribution
(other than a Distribution permitted under (S)7.05(d)) in respect of its Stock
or any Indebtedness owing to the Parent or any Affiliate thereof (other than the
Borrower and its Subsidiaries), the Borrower will notify the Administrative
Agent of its intention to make such Distribution at least 10 Business Days
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<PAGE>
prior to the proposed date of such Distribution and, if the Required Lenders
shall so require by the proposed date of such Distribution and the Borrower
shall make such Distribution, shall prepay then-outstanding Advances within five
Business Days after receipt of notice of such requirement from the
Administrative Agent in an aggregate principal amount equal to the same
proportion of the Lenders' Portion of Excess Proceeds in respect of such sale or
assignment as such Distribution bore to the Parent's Portion of Excess Proceeds
in respect of such sale or assignment, until such time as an aggregate amount
equal to the Excess Proceeds in respect of such sale or assignment shall have
been paid to the Lenders, the lenders under the Bank of America Loan Agreement
and the other Permitted Loan Agreements, other providers of vendor financing to
the Borrower and its Subsidiaries and the Parent.
Any prepayment pursuant to this subsection (b):
(x) shall be applied to the prepayment, first, of a ratable principal
amount of Tranche X Advances, second, of Tranche Y Interest Advances, and
third, of Tranche Y Advances other than Tranche Y Interest Advances;
(y) shall be applied to the prepayment of a ratable principal amount
of Advances forming part of the same Loan then outstanding; and
(z) shall not reduce the principal amount of Advances required to be
repaid on any date pursuant to (S)3.01(a), to the extent that such Advances
are outstanding on such date.
No prior prepayment of Advances shall reduce the principal amount of the
Advances required to be prepaid pursuant to this subsection (b).
(c) By April 30 of each calendar year beginning in 2002, the Borrower
shall prepay outstanding Tranche X Advances in an aggregate principal amount
equal to the lesser of:
(i) (A) 50% of any Excess Cash Flow in respect of the immediately
preceding fiscal year, multiplied by
(B) a fraction, the numerator of which is the aggregate principal
amount of the Tranche X Advances then outstanding, and the denominator of
which is the aggregate principal amount then outstanding of all Tranche X
Advances and all other loans under each Permitted Loan Agreement that are
required to be prepaid out of Excess Cash Flow, and
(ii) the amount, if any, by which the aggregate principal amount of
the Tranche X Advances then outstanding on the date of such prepayment
exceeds (A)
57
<PAGE>
the Tranche X Borrowing Base on such date, minus (B) the amount calculated
under clause (a)(ii) of the definition of "Tranche X Borrowing Base" on
such date.
Any prepayment pursuant to this subsection (c) shall be applied to the
prepayment of a ratable principal amount of Tranche X Advances forming part of
the same Tranche X Loan then outstanding and shall not reduce the principal
amount of Tranche X Advances required to be repaid on any date pursuant to
(S)3.01(a), to the extent that such Tranche X Advances are outstanding on such
date. No prior prepayment of Advances shall reduce the principal amount of the
Advances required to be prepaid pursuant to this subsection (c).
(d) The Borrower shall prepay all outstanding Advances, and the Lenders'
Commitments hereunder shall terminate, upon the termination of the Equipment
Acquisition Agreement as a result of a default thereunder by the Borrower.
(e) (i) On August 4, 1999, February 4, 2000 and August 4, 2000 the
Borrower shall prepay Tranche X Advances in a principal amount that is
equal to the lesser of
(A) the amount by which the sum of the aggregate principal amount
of Tranche X Advances outstanding on the immediately preceding Test
Date, the aggregate principal amount outstanding under the Bank of
America Loan Agreement on such Test Date, and the aggregate principal
amount of all Indebtedness outstanding under the OPCS Loan Agreement
on such Test Date shall exceed 133 1/3% of the sum of the aggregate
amount of Net Ericsson Related Expenses, OPCS Net Ericsson Related
Expenses and OCI Equipment Expenses at such Test Date (assuming for
purposes of such calculation that unfilled purchase orders outstanding
on such Test Date, or delivered on or prior to the related date on
which a prepayment would be required under this subsection (e), for
the delivery of equipment within the six months following such Test
Date would be included as Net Ericsson Related Expenses, OPCS Net
Ericsson Related Expenses and OCI Equipment Expenses and including in
such amount the purchase price of equipment delivered but not fully
paid for and for which the remaining purchase price is reasonably
expected to be payable within the six months following such Test
Date), and
(B) the amount by which the aggregate principal amount of all
Advances (other than Tranche Y Interest Advances) outstanding on the
immediately preceding Test Date, the aggregate principal amount outstanding
under the Bank of America Loan Agreement on such Test Date, and the
aggregate principal amount of all Indebtedness outstanding on such Test
Date under the OPCS Loan Agreement on such Test Date, shall exceed 150% of
the aggregate amount of Net Ericsson Related Expenses, OPCS Net
Ericsson
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Related Expenses and OCI Equipment Expenses at such Test Date (assuming for
purposes of such calculation that unfilled purchase orders outstanding on
such Test Date, or delivered on or prior to the related date on which a
prepayment would be required under this subsection (e), for the delivery of
equipment within the six months following such Test Date would be included
as Net Ericsson Related Expenses, OPCS Net Ericsson Related Expenses and
OCI Equipment Expenses and including in such amount the purchase price of
equipment delivered but not fully paid for and for which the remaining
purchase price is reasonably expected to be payable within the six months
following such Test Date).
(ii) On February 4, 2001 and August 4, 2001, the Borrower shall prepay
Tranche X Advances and Tranche Y Advances in a principal amount that is
equal to the amount by which the aggregate principal amount of all Advances
(other than Tranche Y Interest Advances) outstanding on the immediately
preceding Test Date, the aggregate principal amount outstanding under the
Bank of America Loan Agreement on such Test Date and the aggregate
principal amount of all Indebtedness outstanding under the OPCS Loan
Agreement on such Test Date exceed 150% of the aggregate amount of Net
Ericsson Related Expenses at such Test Date (for purposes of such
calculation at February 4, 2001 but not August 4, 2000 (A) assuming that
unfilled purchase orders outstanding on such Test Date, or delivered on or
prior to the February 4, 2001 for the delivery of equipment within the six
months following such Test Date would be included as Net Ericsson Related
Expenses and (B) including in such amount the purchase price of equipment
delivered but not fully paid for and for which the remaining purchase price
is reasonably expected to be payable within the six months following such
Test Date). Any prepayment pursuant to this subsection (ii) shall be
applied at the Borrower's option to the principal amount of Tranche X
Advances and/or to Tranche Y Advances.
(iii) "Test Date" means each January 30, and July 30.
---------
(iv) Any prepayment pursuant to this subsection (e):
(A) shall be applied to the prepayment of a ratable principal
amount of Advances forming part of the same Loan then outstanding;
(B) of Tranche Y Advances shall be applied first to Tranche Y
Advances other than Tranche Y Interest Advances; and
(C) shall not reduce the principal amount of Advances required to
be repaid on any date pursuant to (S)3.01(a), to the extent that such
Advances are outstanding on such date.
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No prior prepayment of Advances shall reduce the principal amount of the
Advances required to be prepaid pursuant to this subsection (e).
(f) (i) If on any date the aggregate principal amount of outstanding
Tranche X Advances shall exceed either the Tranche X Maximum Commitments or
the Tranche X Borrowing Base, the Borrower shall prepay the then-
outstanding balance of Tranche X Advances by an amount equal to such
excess.
(ii) [Intentionally omitted.]
(iii) [Intentionally omitted.]
(iv) Any such prepayment shall be applied to the prepayment of a
ratable aggregate principal amount of the applicable Advances forming part
of the same Loan as the Borrower shall specify, and shall be applied to the
ratable reduction of the amounts by which the Advances are required to be
repaid on any date pursuant to (S)3.01(a). No prior prepayment of Advances
shall reduce the principal amount of the Advances required to be prepaid
pursuant to this subsection (f).
(v) For purposes of this subsection (f), the Tranche X Maximum
Commitments shall be deemed to continue to be outstanding after the
Termination Date (although the undrawn amount thereof shall not be
available to be drawn) and shall continue to be subject to reduction as
provided in (S)2.12 and in the definitions of "Tranche X Maximum
Commitments".
(g) The Borrower shall prepay all outstanding Tranche Y Advances:
(i) on February 4, 2003 (except as otherwise provided below) if, on
each Trading Day during the 547-day period preceding such date, the
Market Price of Omnipoint Common Stock exceeded $40.00 per share (adjusted
for any stock combinations or splits after the date hereof); and
(ii) on any date that is
(A) after February 4, 2003 and
(B) on the 365th day after any date after February 4, 2002
(except as otherwise provided below) on which the Market Price of
Omnipoint Common Stock shall have exceeded $40.00 per share
(adjusted
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for any stock combinations or splits after the date hereof) on each
Trading Day during a period of 182 consecutive days;
provided that the Borrower shall not be required to make such prepayment if the
- --------
Market Price of Omnipoint Common Stock shall have been less than $40.00 per
share (adjusted for any stock combinations or splits after the date hereof) on
any Trading Day after such period of 182 consecutive days and prior to the
prepayment date.
Notwithstanding the preceding sentence of this subsection (g) or any
other provision of this Agreement pursuant to this subsection (g):
(1) If at the date on which a prepayment otherwise would be due, the
Borrower shall have elected to repay the Tranche Y Advances and interest
thereon by delivery of Omnipoint Common Stock and cannot pay all such
amounts by such delivery by reason of (S)2.07(b)(VIII), on such date the
Borrower shall be required to prepay only a ratable aggregate principal
amount of such Tranche Y Advances forming part of the same Tranche Y Loans
that is equal to the maximum amount that may be prepaid subject to the
limitations of such Section. In such event, at the end of each 60 day
period thereafter the Borrower (A) if electing to prepay such Tranche Y
Loans in cash, will prepay all remaining Tranche Y Advances in cash and (B)
otherwise will prepay the maximum ratable aggregate principal amount of
Tranche Y Advances forming part of the same Tranche Y Loan that may be
prepaid by delivery of Omnipoint Common Stock subject to the limitation set
forth in such Section.
(2) If on the date on which a prepayment otherwise would be required
under clause (i) or (ii) above, the Borrower shall have elected to make
such payment by delivery of Omnipoint Common Stock but shall be prevented
from making such payment on such date by reason of (S)2.07(b)(V) insofar as
the provisions thereof apply to a default by a Significant Subsidiary, such
prepayment shall not be required hereunder until the date that is six
months after the date on which a prepayment would otherwise be required to
be made under clause (i) or (ii). No decrease in the price of Omnipoint
Common Stock during any period in which a mandatory prepayment shall have
been deferred pursuant to this subsection (2) shall affect the requirement
that the Tranche Y Advances be paid as provided in this subsection (g) on
the date to which such mandatory prepayment shall have been deferred.
(h) On any date on which the Tranche Y Maximum Commitments shall have
been reduced pursuant to (S)2.12(c)(ii) or (d), the Borrower shall prepay a
ratable aggregate principal amount of Tranche Y Advances forming part of
the same Tranche Y Loans equal to the excess, if any, of the aggregate
principal amount of the Tranche Y Advances then outstanding over the
Tranche Y Maximum Commitments as of such date.
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(i) On any date that would otherwise be the Tranche Y Maturity Date by
reason of clause (a) of the definition thereof but for a postponement of
such date as provided in such clause, the Borrower shall prepay a ratable
aggregate principal amount of Tranche Y Advances forming part of the same
Tranche Y Loans equal to the greatest principal amount of Tranche Y Loans
that may be prepaid by delivery of Omnipoint Common Stock, subject to the
limitation set forth in (S)2.07(b)(VIII).
Section 3.03. Optional Prepayments of Loans. (a) The Borrower may,
-----------------------------
except as provided below upon at least two Business Days' notice to the
Administrative Agent (or upon one Trading Day's notice, in the case of
prepayments by delivery of Omnipoint Common Stock pursuant to (S)2.07(b)),
stating the proposed prepayment date and the aggregate principal amount of the
Advances to be prepaid, and the tranche of the Advances to be prepaid on such
date, and if such notice is given the Borrower shall, except as otherwise
provided in this (S)3.03, prepay such outstanding principal amount of the
Advances of the tranche specified then outstanding in whole or ratably in part.
Any such prepayment of less than the entire aggregate principal amount of the
Advances then outstanding shall be applied to the prepayment of a ratable
aggregate principal amount of Advances forming part of the same Loans, and any
such prepayment of Tranche Y Advances shall be applied, first, to Tranche Y
Interest Advances and, second, to Tranche Y Advances other than Tranche Y
Interest Advances. Any prepayment of Tranche X Advances pursuant to this
(S)3.03 shall be applied to the reduction of the amounts by which such Advances
are required to be repaid pursuant to (S)3.01(a) on the repayment dates next
occurring after the date of such prepayment.
(b) The Borrower may irrevocably waive any rights it may have under
subsection (a) above to make any optional prepayments of Tranche Y Advances by
delivery of Omnipoint Common Stock by delivery of a written waiver to that
effect.
Section 3.04. Certain Matters Relating to Repayments and Prepayments.
------------------------------------------------------
(a) On the date on which Advances are to be repaid or prepaid, and if less than
all Loans are to be repaid or prepaid, if the Second LIBOR Method is applicable
and if both Base Rate Loans and LIBOR Loans are outstanding, the Borrower will
specify whether the Loan to be repaid or prepaid shall be a Base Rate Loan or a
LIBOR Loan and, if a LIBOR Loan is to be repaid or prepaid and more than one
LIBOR Loan is outstanding, which such LIBOR Loan shall be prepaid.
(b) All prepayments and repayments pursuant to this Article III shall be
accompanied by such additional amounts as are sufficient to pay accrued and
unpaid interest on the principal amount of the Advances then being prepaid or
repaid.
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ARTICLE IV
ILLEGALITY, INCREASED COSTS, CAPITAL ADEQUACY AND INDEMNITIES
-------------------------------------------------------------
Section 4.01. Illegality. Notwithstanding any other provisions herein,
----------
if any present or future law, regulation, treaty or directive or the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain LIBOR Loans, such Lender shall forthwith give notice of such
circumstances to the Borrower, the Administrative Agent and the other Lenders
and thereupon
(a) the Commitments of such Lender to make LIBOR Loans shall forthwith
be suspended until such notifying Lender shall have notified the
Administrative Agent and the Borrower that the circumstance giving rise to
such determination no longer exists (and if such notifying Lender shall
determine that such circumstance no longer exists it shall so notify the
Administrative Agent and the Borrower promptly after determining the same),
and
(b) the aggregate principal amount of such Lender's LIBOR Loans, if
any, shall be Converted automatically to Base Rate Loans on the last day of
each Interest Period applicable to such LIBOR Loans or within such earlier
period as may be required by applicable law.
Such Lender will designate a different Applicable Lending Office if such
designation will avoid the need for any suspension or Conversions described in
the preceding sentence and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
Section 4.02. Additional Costs and Capital Adequacy. (a) If any present
-------------------------------------
or future applicable law, which expression, as used herein, includes statutes,
rules and regulations thereunder and interpretations thereof by any competent
court having jurisdiction with respect thereto or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Lender
or the Administrative Agent by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall
(i) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Agreement) any special-deposit,
reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or commitments of an
office of any Lender, or
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<PAGE>
(ii) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Agreement, the other Loan
Documents, such Lender's Commitments, or any class of loans, or commitments
of which any of the Loans or such Lender's Commitments form a part,
and the result of any of the foregoing is to increase the cost to such Lender of
making, funding, issuing, renewing, extending or maintaining any of the Advances
or such Lender's Commitment (taking into account such Lender's then-existing
policies with respect to maintaining capital), then the Borrower shall pay to
the Administrative Agent for the account of such Lender, within 15 days after
demand from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such
circumstances, for such increased costs.
(b) If any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) or the interpretation thereof
by a court or governmental authority with appropriate jurisdiction, that in any
case becomes effective after the date hereof, affects the amount of capital
required or expected to be maintained by any Lender or any corporation
controlling such Lender and such Lender determines that the amount of capital
required to be maintained by it is increased by or based upon the existence of
such Lender's commitment with respect to any Advances, the Borrower will pay to
such Lender, within 15 days after demand from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder.
(c) Each demand by a Lender pursuant to this (S)4.02 shall be accompanied
by a statement setting forth in reasonable detail the basis for such demand and
the computation of such amount, including any method by which such cost was
allocated to the Borrower. In determining the amount of any compensation, such
Lender may use any reasonable averaging or attribution methods set forth in such
demand, and any such methods so used shall be binding on the Borrower. The
amount specified in any such demand shall be conclusive evidence of the amount
owing, absent manifest error. Such Lender will designate a different Applicable
Lending Office if such designation will avoid the need for or reduce the amount
of any compensation under this (S)4.02 and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. By making any payment
under this (S)4.02, the Borrower is not waiving its right to contest that the
amounts set forth in the certificates are based on manifest error.
Section 4.03. Taxes. (a) Any and all payments by the Borrower
-----
hereunder or under the Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
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<PAGE>
---------
the case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it in lieu of income taxes, by the
jurisdiction under the laws of which such Lender or the Administrative Agent (as
the case may be) is organized or any political subdivision thereof and, in the
case of each Lender, taxes imposed on its income, and franchise taxes imposed on
it in lieu of income taxes, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law
-----
to deduct any Taxes from or in respect of any sum payable hereunder or under any
Note to any Lender or the Administrative Agent,
(i) the sum payable shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this (S)4.03) such Lender or the
Administrative Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, and
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
-----------
(c) The Borrower will indemnify each Lender and the Administrative Agent
for the full amount of Taxes or Other Taxes (including any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this (S)4.03) paid by such
Lender or the Administrative Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto. This indemnification shall be made within 15 days from the date such
Lender or such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
will furnish to the Administrative Agent, at its address referred to in
(S)12.02, the original or a certified copy of a receipt evidencing payment
thereof. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
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<PAGE>
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e) below, the terms "United States" and "United
------------- ------
States person" shall have the meanings specified in (S)7701 of the Internal
- -------------
Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments of interest pursuant to this Agreement
or the Notes. If the form provided by a Lender at the time such Lender first
becomes a party to this Agreement indicates a United States interest withholding
tax rate in excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in (S)4.03(a). If any form or document
referred to in this subsection (e) requires the disclosure of information, other
than information necessary to compute the tax payable and information required
on the date hereof by Internal Revenue Service form 1001 or 4224, that the
Lender reasonably considers to be confidential, the Lender shall give notice
thereof to the Borrower and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form described in (S)4.03(e) (other than if such
----- ----
failure is due to a change in law occurring subsequent to the date on which a
form originally was required to be provided, or if such form otherwise is not
required under the first sentence of subsection (e) above), such Lender shall
not be entitled to indemnification under (S)4.03(a) with respect to Taxes
imposed by the United States; provided that should a Lender become subject to
--------
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall take such steps as such Lender shall reasonably request and at such
Lender's expense to assist such Lender to recover such Taxes.
(g) If the Borrower is required to pay any amounts to or for the account of
any Lender pursuant to this (S)4.03, such Lender will designate a different
Applicable Lending Office if such designation will avoid the need for or reduce
the amount of any such payment and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
Section 4.04. Survival. Without prejudice to the survival of any other
--------
agreement of the Borrower hereunder, the agreements and obligations of the
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<PAGE>
Borrower contained in this Article IV shall survive the payment in full of
principal and interest hereunder and under the Notes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants to the Lenders and the Administrative
Agent as follows:
Section 5.01. Corporate and Limited Liability Company Authority. (a)
-------------------------------------------------
Each Loan Party in existence on the date hereof (or on any date on which these
representations and warranties are deemed repeated):
(i) is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of its state of
incorporation or formation (as applicable),
(ii) has all requisite corporate power or has taken all requisite
member or management action to own its Property and conduct its business as
now conducted and as presently contemplated and
(iii) is in good standing as a foreign corporation or limited
liability company and is duly authorized to do business in each
jurisdiction where such qualification is necessary in order to conduct its
business as now conducted except where a failure to be so qualified would
not have a Material Adverse Effect.
(b) Set forth on Schedule 5.01(b) hereto (as updated pursuant to (S)
----------------
6.14(s)) is a complete and accurate list of all Subsidiaries of the Borrower,
showing (as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of Stock authorized, and the number outstanding,
on the date hereof and the percentage of the outstanding shares of each such
class owned (directly or indirectly) by the Borrower, the number of shares
covered by all outstanding options, warrants, rights of conversion or purchase
and similar rights at the date hereof. All of the outstanding Stock of each
such Subsidiary has been validly issued, is fully paid and non-assessable and is
owned by the Borrower or one or more of its Subsidiaries free and clear of all
Liens, except those created or permitted under the Loan Documents or as
disclosed in such Schedule (as so updated). Each such Subsidiary:
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<PAGE>
(i) is a corporation or limited liability company duly organized,
validly existing and in good standing under the laws of its state of
incorporation or formation,
(ii) has all requisite corporate or limited liability company power to
own its Property and conduct its business as now conducted and as presently
contemplated and
(iii) is in good standing as a foreign corporation or limited
liability company and is duly authorized to do business in each
jurisdiction where such qualification is necessary in order to conduct its
business as now conducted except where a failure to be so qualified would
not have a Material Adverse Effect.
(c) The execution, delivery and performance by each Loan Party of this
Agreement and the other Loan Documents to which it is or is to become a party,
and the consummation of the transactions contemplated hereby and thereby:
(i) are within the corporate or limited liability company authority of
such Loan Party,
(ii) have been duly authorized by all necessary corporate or limited
liability company proceedings,
(iii) do not conflict with or result in any breach or contravention
of any provision of law, statute, rule or regulation to which such Loan
Party is subject or any judgment, order, writ, injunction, license or
permit applicable to such Loan Party or its Property and
(iv) do not conflict with any provision of the corporate charter,
limited liability company agreement or bylaws of, or any agreement or other
instrument binding upon, the Borrower or its Property.
(d) This Agreement has been, and each of the Notes and each other Loan
Document when delivered hereunder will have been, duly executed and delivered by
each Loan Party party thereto. This Agreement is, and each of the Notes and
each other Loan Document when delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms, except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws relating to
or affecting generally the enforcement of creditors' rights and except to the
extent that availability of the remedy of specific performance or injunctive
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
Section 5.02. Governmental Approvals. The execution, delivery and
----------------------
performance by each Loan Party of this Agreement and the other Loan Documents to
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<PAGE>
which such Loan Party is or is to become a party and the transactions
contemplated hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained (except as otherwise expressly contemplated herein with regard to the
West Palm Beach BTA) and for any subsequent informational filing with the
Securities and Exchange Commission.
Section 5.03. Title to Properties. The Borrower and each of its
-------------------
Subsidiaries own all of the FCC Licenses listed on Schedule 5.07 hereto (other
than those listed therein which are owned by a D-, E- and F-Block Subsidiary)
and all assets of such Persons acquired since such date (except property and
assets sold or otherwise disposed of in the ordinary course of business since
that date), subject to no rights of others, including any mortgages, leases,
conditional sales-agreements, title-retention agreements, liens or other
encumbrances except Permitted Liens.
Section 5.04. Financial Statements. [Intentionally omitted.]
--------------------
Section 5.05. No Material Adverse Effect, Etc. There has occurred no
-------------------------------
Material Adverse Effect (other than continuing losses of the Borrower as
previously disclosed in the Borrower's financial statements as furnished to the
Administrative Agent prior to the date of this Amendment and Restatement and,
with respect to future losses, as projected in the Approved Full-Term Operating
Business Plan) and, except as permitted hereunder, the Borrower has not made any
Distribution.
Section 5.06. Franchises, Patents, Copyrights, Etc. Except as set forth
------------------------------------
in Schedule 5.06, there are no franchises, licenses, patents, copyrights,
-------------
trademarks, trade names, or other intellectual property, individually or in the
aggregate, that are material for the conduct of the business of the Borrower or
any of its Subsidiaries, as now conducted or as presently contemplated to be
conducted.
Section 5.07. FCC Licenses, Etc. (a) Part I of Schedule 5.07 lists all
-----------------
FCC Licenses held by License Subsidiaries other than D-, E- and F-Block
Subsidiaries. Part III of Schedule 5.07 lists all FCC Licenses held by License
Subsidiaries of the D-, E- and F-Block Subsidiary Parent. The D-, E- and F-
Block Subsidiary Parent has filed or caused to be filed applications with the
FCC for the transfer of all of the capital stock of the License Subsidiaries
holding all of the FCC Licenses listed in Part II of Schedule 5.07 to the
Borrower.
(b) Neither any FCC License nor any material Necessary Authorization
needed to comply with the provisions of (S)5.07(a) is the subject of any pending
or, to the best of the Borrower's knowledge, threatened revocation or revocation
proceeding.
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Section 5.08. Litigation. There are no actions, suits, proceedings or
----------
investigations of any kind pending or, to the best of the Borrower's knowledge,
threatened against any Loan Party before any court, tribunal or administrative
agency or board (including the FCC) that, if adversely determined, might, either
in any case or in the aggregate, have a Material Adverse Effect or materially
impair the right of such Loan Party, to carry on business substantially as now
conducted, or result in any substantial and material liability not adequately
covered by insurance, or for which adequate reserves are not maintained on the
balance sheet of such Loan Party, or that questions the validity of this
Agreement or any of the Loan Documents, or any action taken or to be taken
pursuant hereto or thereto.
Section 5.09. No Materially Adverse Contracts, Etc. None of the Loan
------------------------------------
Parties is subject to any charter, corporate or other legal restriction, or any
judgment, decree, order, rule or regulation that has or is expected in the
future to have a Material Adverse Effect. None of the Loan Parties is a party
to any contract or agreement that has or is expected, in the judgment of such
Loan Party's officers, to have any Material Adverse Effect.
Section 5.10. Compliance with Other Instruments, Laws, Etc. None of the
--------------------------------------------
Loan Parties is in violation of any provision of its charter documents or
limited liability company formation documents, bylaws or any agreement or
instrument to which it may be subject or by which it or any of its Properties
may be bound or any decree, order, judgment, statute, license, rule or
regulation, in any of the foregoing cases in a manner that could result in the
imposition of substantial penalties or have a Material Adverse Effect.
Section 5.11. Tax Status. Each Loan Party and each of its Subsidiaries
----------
and Affiliates
(a) has made or filed all federal and state income and all other tax
returns, reports and declarations required by any jurisdiction to which it
is subject or filed extensions therefor;
(b) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings;
and
(c) has set aside on its books provisions reasonably adequate for the
payment of all taxes for all elapsed periods subsequent to the periods to
which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction in respect of any Loan Party or any of its
Subsidiaries or Affiliates, and the officers of the Borrower know of no basis
for any such claim.
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Section 5.12. No Default. No Default has occurred and is continuing.
----------
Section 5.13. Holding Company and Investment Company Acts. Neither any
-------------------------------------------
Loan Party nor any of its Subsidiaries is a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935.
Neither any Loan Party nor any of its Subsidiaries is an "investment company",
or an "affiliated company" or a "principal underwriter" of an "investment
company", or an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act of 1940, as amended.
Section 5.14. Absence of Financing Statements, Etc. Except with respect
------------------------------------
to Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or Property of the Borrower or any of its Subsidiaries or any
rights relating thereto.
Section 5.15. FCC Matters. Except for the filing of tariffs with the
-----------
FCC, each Loan Party has duly and timely filed all filings which are required to
be filed by it under the Communications Act, the failure to file which could
reasonably be expected to have a Material Adverse Effect and is in all material
respects in compliance with the Communications Act, including the rules and
regulations of the FCC applicable to it, the failure to be in compliance with
which could reasonably be expected to have a Material Adverse Effect. No
failure to pay any Indebtedness owing to the FCC in respect of any C-Block FCC
License has occurred, except in accordance with the orders, rules and
regulations of the FCC.
Section 5.16. Tariffs. No action to change, alter, rescind or otherwise
-------
terminate the tariffs containing service regulations or any rates and charges
for commercial mobile radio services which, if adversely determined, would have
a Material Adverse Effect, is pending or known by the Borrower to be under
consideration.
Section 5.17. Disclosure. This Agreement and the statements and
----------
documents referred to herein or delivered to the Administrative Agent and/or the
Lenders by or on behalf of the Borrower pursuant hereto, taken together, contain
no untrue statement of a material fact or fail to state a material fact which
would be necessary to make the statements (taken as a whole) herein and therein
not misleading at such time.
Section 5.18. Burdensome Obligations. No Loan Party is a party to or
----------------------
bound by any franchise, agreement, deed, lease or other instrument, or subject
to any legal restriction which, in the opinion of the management of the
Borrower, is so unusual or burdensome, in the context of its business, as in the
foreseeable future might materially and adversely affect or impair the revenue
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or operating cash flow of such Loan Party, or the ability of such Loan Party to
perform the obligations to be performed by it under the Loan Documents to which
such Loan Party is a party. The Borrower does not presently anticipate that
future expenditures by the Borrower or any of its Subsidiaries needed to meet
the provisions of federal or state statutes, orders, rules or regulations will
be so burdensome as to affect or impair, in a materially adverse manner, the
business or condition, financial or otherwise, of the Borrower or any of its
Subsidiaries.
Section 5.19. Solvency. Each Loan Party is, individually and together
--------
with its Subsidiaries, and after giving effect to the incurrence of all
Indebtedness as and when contemplated by the Loan Documents will be, Solvent.
Section 5.20. Security Interests. The security interests granted under
------------------
the Collateral Documents constitute valid, binding and continuing duly perfected
first-priority Liens in and to the Collateral (except for Permitted Liens that
have priority under applicable law or as provided herein or in the Intercreditor
Agreement) in favor of the Collateral Agent, for the benefit of the Secured
Parties.
Section 5.21. Certain Transactions. None of the officers, directors or
--------------------
employees of the Borrower is presently a party to any transaction with the
Borrower (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of such the Borrower, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner. The Borrower has delivered a complete and correct copy of
the Expense Allocation Agreement and the Cash Management Agreement to the
Administrative Agent. The Borrower is not a party to any management, operating,
license or other agreement providing for the payment of any amount to any of its
Affiliates, except for the Expense Allocation Agreement or as permitted under
(S)7.11.
Section 5.22. Business Plans. The Approved Full-Term Operating Business
--------------
Plan and Approved Annual Operating Business Plan, if any, have been prepared in
all material respects in accordance with GAAP (except for the treatment of
Indebtedness owing to the FCC, which has been reflected in such plans at
historical cost).
Section 5.23. Employee Benefit Plans. (a) Each Employee Benefit Plan
----------------------
and each Plan has been maintained and operated in compliance in all material
respects with the provisions of ERISA and, to the extent applicable, the IRC,
including the provisions thereunder respecting prohibited transactions. The
Borrower and each of its Subsidiaries has made all required contributions to
each Employee Benefit Plan and each Multiemployer Plan. To the extent
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applicable, the Borrower has heretofore delivered to the Administrative Agent
the most recently completed annual report, Form 5500, with all required
attachments, and actuarial statement required to be submitted under (S)103(d) of
ERISA, with respect to each Guaranteed Pension Plan.
(b) Under each Employee Benefit Plan that is an employee welfare benefit
plan within the meaning of (S)3(1) or (S)3(2)(B) of ERISA, no benefits are due
unless the event giving rise to the benefit entitlement occurs prior to plan
termination (except as required by Title I, Subtitle B, Part 6 of ERISA). The
Borrower, each of its Subsidiaries and each ERISA Affiliate may terminate each
such Plan at any time (or at any time subsequent to the expiration of any
applicable bargaining agreement) in the discretion of such Loan Party or such
ERISA Affiliate without liability to any Person.
(c) Each contribution required to be made to a Guaranteed Pension Plan,
whether required to be made to avoid the incurrence of an accumulated funding
deficiency, the notice or lien provisions of (S)302(f) of ERISA, or otherwise,
has been timely made. No waiver of minimum funding standards or extension of
amortization periods has been requested or received with respect to any
Guaranteed Pension Plan. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred by the
Borrower, any of its Subsidiaries or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Event, or any other
event or condition that presents a material risk of termination of any
Guaranteed Pension Plan by the PBGC. None of the Borrower, any of its
Subsidiaries or any ERISA Affiliate has instituted or intends to institute
proceedings to terminate a Guaranteed Pension Plan. No event requiring notice
to the PBGC under (S)302(f)(4)(A) of ERISA has occurred with respect to any
Guaranteed Pension Plan and no amendment with respect to which security is
required under (S)307 of ERISA has been made or is reasonably expected to be
made to any Guaranteed Pension Plan. Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within 12 months prior to
the date of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of (S)4001 of ERISA did not exceed
the aggregate value of the assets of all such Guaranteed Pension Plans,
disregarding for this purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of benefit liabilities.
(d) None of the Borrower, any of its Subsidiaries or any ERISA Affiliate
has incurred or expects to incur any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under (S)4201 of ERISA or as a result of
a sale of assets described in (S)4204 of ERISA. Neither any Loan Party nor any
ERISA Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of (S)4241 or (S)4245
of ERISA or that any Multiemployer Plan intends to terminate or has been
terminated under (S)4041A of ERISA.
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Section 5.24. Regulations U and X. No portion of any Loan shall be used
-------------------
or obtained for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 5.25. Environmental Compliance. The Borrower has taken all
------------------------
necessary steps to investigate the past and present condition and usage of its
Real Estate and the operations conducted thereon and, based upon such diligent
investigation, makes the following representations:
(a) The Borrower and each of its Subsidiaries is in compliance with
all applicable Environmental Laws relating to the operation of its business
and the use and occupancy of any Real Estate. There is no pending or
threatened civil or criminal litigation, written notice of violation,
formal administrative proceeding, or investigation, inquiry or information
request by any governmental entity relating to any Environmental Law
involving the Borrower or any of its Subsidiaries.
(b) Except as set forth in Schedule 5.25, there have been no releases
-------------
of any Materials of Environmental Concern into the environment at any
parcel of Real Estate or any facility formerly or currently owned, operated
or controlled by the Borrower or any of its Subsidiaries. With respect to
any such releases of any Materials of Environmental Concern, the Borrower
has given all required notices to government entities. The Borrower is not
aware of any releases of Materials of Environmental Concern at parcels of
Real Estate or facilities other than those owned, operated or controlled by
the Borrower or any of its Subsidiaries that could reasonably be expected
to have an impact on the Real Estate or facilities owned, operated or
controlled by the Borrower or any of its Subsidiaries.
(c) Set forth in Schedule 5.25 is a list of all environmental reports,
-------------
investigations and audits relating to premises currently or previously
owned or operated by the Borrower and its Subsidiaries (whether conducted
by or on behalf of the Borrower, any of its Subsidiaries or a third party,
and whether done at the initiative of the Borrower or any of its
Subsidiaries or directed by a governmental entity or other third party)
which the Borrower or any of its Subsidiaries has in its possession or to
which it has access, and complete and accurate copies of each such report,
or the results of each such investigation or audit, have been provided to
the Administrative Agent.
(d) The Borrower and each of its Subsidiaries has filed all reports
and returns required to be filed by such Person under any Environmental
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Laws. The Borrower and each of its Subsidiaries has obtained and is in
compliance with all licenses, permits, registrations, certificates,
consents, approvals or authorizations (collectively, "Environmental
-------------
Permits") required by all applicable Environmental Laws. No event has
occurred and is continuing that requires, or after notice or lapse of time
or both would requires, any modification or termination of any
Environmental Permit. Neither the Borrower nor any of its Subsidiaries (i)
has received any notice asserting the absence of any Environmental Permit
or (ii) has knowledge of any environmental law proposed or under
consideration, which, if effective, could have a Material Adverse Effect.
(e) Neither the Borrower nor any of its Subsidiaries, nor any of the
Real Estate, is subject to any applicable Environmental Laws requiring the
performance of site assessments for Materials of Environmental Concern, or
the removal or remediation of Materials of Environmental Concern, or the
giving of notice to any governmental agency or the recording or delivery to
other Persons of an environmental disclosure document or statement by
virtue of the transactions set forth herein and contemplated hereby, or as
a condition to the effectiveness of any transactions contemplated hereby.
Section 5.26. Joint Ventures, Etc. Except as set forth in Schedule
-------------------- --------
5.26, the Borrower is not engaged in any joint venture or partnership with any
other Person, and each joint venture or partnership listed in such Schedule is a
Qualified Joint Venture.
Section 5.27. Material Contracts. As of the date of this Agreement,
------------------
neither the Borrower nor any of its Subsidiaries is a party to any Material
Contract or any agreement with any director, officer or employee, except as set
forth in Schedule 5.27.
-------------
Section 5.28. Representations in Other Loan Documents. Each of the
---------------------------------------
representations by any Loan Party in any of the other Loan Documents is true as
of the date hereof.
ARTICLE VI
AFFIRMATIVE COVENANTS OF THE BORROWER
-------------------------------------
The Borrower covenants and agrees that, so long as any Loan or Note or any
fees or expenses are outstanding or any Lender has any Commitment hereunder:
Section 6.01. Maintenance of Office. The Borrower shall maintain, and
---------------------
shall cause each of its Subsidiaries to maintain, its chief executive office at
3 Metro Center, Bethesda, MD 20814 (except in the case of an Operating
Subsidiary, at 16 Wing Drive, Cedar Knolls, NJ 07927), except that the Borrower
or any such Subsidiary may change its chief executive office on not less than 30
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days' advance written notice to the Administrative Agent and after taking all
such action as may be necessary or appropriate or requested by the Collateral
Agent or the Administrative Agent to continue the perfection of the Collateral
Agent's security interest in the Collateral.
Section 6.02. Records and Accounts. The Borrower shall, and shall cause
--------------------
each of its Subsidiaries to:
(a) keep true and accurate records and books of account in which full,
true and correct entries shall be made in accordance with GAAP, and
(b) maintain adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and amortization of
its Properties, contingencies and other reserves.
Section 6.03. Corporate Existence; Maintenance of Licenses. The Borrower
--------------------------------------------
shall do or cause to be done, and shall cause each of its Subsidiaries to do or
cause to be done, all things necessary to:
(a) preserve and keep in full force and effect its corporate or, if
applicable, its limited liability company existence;
(b) maintain in full force and effect:
(i) each FCC License with respect to the BTAs specified in Parts
I and II of Schedule 5.07 (other than any such FCC License that has
been previously sold or transferred in accordance with this Agreement
or loss of a C-Block FCC License on account of a C-Block General
License Revocation Event) and any other FCC Licenses from time to time
held by any License Subsidiary and cause each License Subsidiary at
all times to own each FCC License listed in Schedule 5.07 (other than
any such FCC License that has been previously sold or transferred in
accordance with this Agreement or loss of a C-Block FCC License on
account of a C-Block General License Revocation Event), free and clear
of any Lien of any kind, other than any Lien permitted under
(S)7.01(g);
(ii) with respect to the construction, installation and
development of facilities for the Permitted BTAs, all material
Necessary Authorizations appropriate to the level of development
theretofore achieved and sufficient to avoid noncompliance with the
then applicable minimum build-out requirements under the License for
such BTAs; and
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(iii) with respect to the operation of those portions of
Permitted BTAs the development of which has theretofore been
completed, all material Licenses, copyrights, patents, franchises,
Necessary Authorizations and other rights as are necessary and
sufficient to operate such completed portions; and
(c) use, and cause the Grandparent to use, its best efforts to cause
the ownership of all capital stock of the License Subsidiary holding the
FCC License for the West Palm Beach BTA to be transferred to the Borrower
promptly after the date hereof, it being understood that such transfer
requires the FCC's consent.
The Borrower will, and will cause its Subsidiaries to, at all times perform and
observe all covenants and conditions on its part to be performed and observed
under FCC rules and regulations or otherwise with respect thereto with respect
to the FCC Licenses held by License Subsidiaries and not cause or, except for a
C-Block General License Revocation Event or a Proposed C-Block General License
Revocation Event, permit to exist any grounds for the FCC to revoke or suspend
or not to renew such License.
Section 6.04. Maintenance of Properties. The Borrower shall do or cause
-------------------------
to be done, and shall cause each of its Subsidiaries to do or cause to be done,
all things necessary to preserve and keep in full force and effect its material
franchises, employment contracts and permits. The Borrower shall, and shall
cause each of its Subsidiaries to:
(a) cause all of its Properties used or useful in the conduct of its
business to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment;
(b) cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the
Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
(c) continue to engage primarily in the businesses now conducted by it
and in related businesses; and
(d) continue in full force and effect all authorizations and approvals
required to conduct the businesses now conducted by it as appropriate to
the then level of construction, development and operation of PCS Systems
covered by FCC Licenses held by License Subsidiaries;
provided that nothing in this (S)6.04 shall prevent the Borrower or any of its
- --------
Subsidiaries from discontinuing the operation and maintenance of any of its
Properties if such discontinuance is, in the judgment of the Borrower or such
Subsidiary, desirable in the conduct of its business and would not have a
Material Adverse Effect.
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Section 6.05. Insurance. The Borrower shall obtain and maintain, and
---------
shall cause each of its Subsidiaries to obtain and maintain, insurance with
respect to its properties and business with insurers that hold an A.M. Best
rating of "A" or better. The insurance coverage shall:
(a) include, as a minimum, the types of policies and respective limits
as reflected in (S)13 of each Security Agreement;
(b) with respect to all liability insurance, name the Administrative
Agent and the Collateral Agent as additional insured;
(c) with respect to casualty insurance, name the Collateral Agent as
loss payee as its interest may appear; and
(d) provide that the insurer will give the Administrative Agent and
the Collateral Agent at least 30-days' prior written notice of the
cancellation or any material change in the coverage, aggregate limits or
any other provision of such insurance.
The Borrower shall deliver to the Administrative Agent and the Collateral Agent,
as required by (S)8.20, no later than March 31 in each calendar year and
otherwise promptly on request by the Administrative Agent or the Collateral
Agent, certificate(s) of insurance reflecting the requirements of this (S)6.05,
each Security Agreement and each Mortgage, and setting forth any deductibles
applicable to any insurance coverage.
Section 6.06. Taxes. The Borrower shall duly pay and discharge, and
-----
cause each of its Subsidiaries to duly pay and discharge, before the same shall
become overdue, all taxes, assessments and other governmental charges imposed
upon it and its Real Estate, sales and activities, or any part thereof, or upon
the income or profits therefrom, as well as all claims for labor, materials, or
supplies that if unpaid might by law become a lien or charge upon any of its
Property; provided that no such tax, assessment, charge, levy or claim need be
--------
paid if the validity or amount thereof shall currently be contested in good
faith by appropriate proceedings and if the Borrower or any of its Subsidiaries
has set aside on its books adequate reserves with respect thereto; and provided
--------
further that the Borrower shall pay all such taxes, assessments, charges, levies
- -------
or claims forthwith upon the commencement of proceedings to foreclose any lien
that may have attached as security therefor.
Section 6.07. Inspection of Properties and Books. (a) The Borrower
----------------------------------
shall permit, and shall cause each of its Subsidiaries to permit, the
Administrative Agent, the Lenders and their other designated representatives to
visit and inspect any of the Properties of the Borrower or such Subsidiary, to
examine the books of account of the Borrower or such Subsidiary (and to make
copies thereof and extracts therefrom), and to discuss the affairs, finances and
accounts of the Borrower or such Subsidiary with, and to be advised as to the
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same by, its officers, all at such reasonable times and intervals as the
Administrative Agent or any Lender may reasonably request; provided that the
--------
Administrative Agent and each Lender shall use reasonable commercial efforts not
to interfere with the business of the Borrower or any of its Subsidiaries.
(b) The Borrower authorizes the Administrative Agent and each Lender to
communicate directly with the independent certified public accountants of the
Borrower or any of its Subsidiaries and authorizes such accountants to disclose
to the Administrative Agent and the Lenders any and all financial statements and
other supporting financial documents and schedules including copies of any
management letter with respect to the business, financial condition and other
affairs of the Borrower and its Subsidiaries. At the reasonable request of the
Administrative Agent, the Borrower shall deliver a letter addressed to such
accountants instructing them to comply with the provisions of this (S)6.07(b).
The Administrative Agent and the Lenders shall use commercially reasonable
efforts to coordinate the communications and disclosures to and from the
accountants and Administrative Agent and the Lenders.
Section 6.08. Compliance with Laws, Contracts, FCC Licenses and Permits.
---------------------------------------------------------
The Borrower shall comply, and shall cause each of its Subsidiaries to comply,
in all material respects with:
(a) the applicable laws, rules, regulations and orders wherever its
business is conducted, including without limitation compliance with all
Environmental Laws, all Environmental Permits, ERISA, the IRC, the
Communications Act and all FCC rules and regulations (including without
limitation compliance with FCC rules and regulations relating to
maintaining the status of the License Subsidiaries as designated entities
and small businesses);
(b) the provisions of its charter documents and by-laws;
(c) all Material Contracts to which it or any of its Subsidiaries is a
party and by which it or any of its Subsidiaries or any of its or their
Properties may be bound;
(d) all obligations with respect to any Employee Benefit Plan or
Multiemployer Plan; and
(e) all applicable decrees, orders, and judgments.
If any authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or required
in order that the Borrower or any of its Subsidiaries may fulfill any of the
Borrower's or such Subsidiary's obligations hereunder or any of the other Loan
Documents to which the Borrower or any of its Subsidiaries is a party, the
Borrower shall immediately take, or shall cause such Subsidiary immediately to
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take, all reasonable steps within the power of the Borrower or such Subsidiary
to obtain such authorization, consent, approval, permit or license and furnish
the Administrative Agent evidence thereof.
Section 6.09. Further Assurances. (a) The Borrower shall cooperate, and
------------------
shall cause each of its Subsidiaries to cooperate, with the Lenders and the
Administrative Agent, and shall execute and pay, and shall cause each of its
Subsidiaries to execute and pay, as applicable, for the filing of all such
further instruments and documents, including, without limitation, such Uniform
Commercial Code financing statements and other security documents as the
Required Lenders, the Collateral Agent or the Administrative Agent shall
reasonably deem appropriate at any time in order to effectuate the security
interests to the Collateral Agent and to carry out to their satisfaction the
transactions contemplated by the Loan Documents.
(b) If at any time the granting of a Lien on the FCC License held by any
License Subsidiary, or in any proceeds of any sale or disposition thereof, shall
not violate then-applicable FCC regulations, the Borrower shall so notify the
Administrative Agent and shall, at its expense, promptly cause such License
Subsidiary to execute and deliver any and all such instruments, documents and
opinions of counsel and take such other action as either Agent may deem
desirable in order to grant in favor of the Collateral Agent on behalf of the
Secured Parties a Lien on such FCC License and/or the proceeds thereof.
Section 6.10. Authorization from Landlord/Mortgagee, Etc. The Borrower
------------------------------------------
shall request that any landlord, mortgagee and easement grantor of the Borrower
or any of its Subsidiaries agree to give the Collateral Agent and the
Administrative Agent, on a best-efforts basis, notice of any default by the
Borrower or such Subsidiary under the terms or conditions of any agreement
between the Borrower and/or such Subsidiary and any landlord, mortgagee of any
such landlord or easement grantor, and allow the Collateral Agent to inspect or
remove Collateral after the occurrence and continuance of an Event of Default.
Section 6.11. Attornment and Recognition Agreements. The Borrower shall
-------------------------------------
obtain, and shall cause each of its Subsidiaries to obtain, all attornment and
recognition agreements from any landlord or landlord's mortgagee of Real Estate
leased or owned by the Borrower or any of its Subsidiaries upon which any
equipment with an aggregate purchase price in excess of $1,000,000 is stored or
located, in form and substance reasonably satisfactory to the Administrative
Agent. The Borrower shall use its best efforts to obtain all attornment and
recognition agreements from any landlord or landlord's mortgagee of Real Estate
leased or owned by the Borrower or any of its Subsidiaries upon which all other
Collateral not covered by the immediately preceding paragraph is stored or
located, in form and substance reasonably satisfactory to Required Lenders.
Section 6.12. Expense Allocation Agreement. The Borrower shall comply
----------------------------
with the terms of the Expense Allocation Agreement and not consent to any
waiver, modification or amendment thereto.
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Section 6.13. Maintenance of Subsidiary. The Borrower shall cause
-------------------------
Operations to remain a Subsidiary at all times at which this Agreement is in
force and effect.
Section 6.14. Reporting Requirements; Notices. The Borrower shall
-------------------------------
deliver or cause to be delivered to the Administrative Agent on behalf of the
Lenders the following (in a sufficient number of copies to permit distribution
to each Lender):
(a) No later than 15 days prior to the end of each fiscal year of the
Borrower and until the first fiscal year ending after the date on which
EBTDA is greater than zero for two successive fiscal quarters, a proposed
annual operating business plan containing the statements listed in items
(i) through (vi) in this paragraph and the exhibits contained in the annual
operating business plan delivered pursuant to (S)8.13(a) for the next-
succeeding fiscal year. The proposed annual operating business plan shall
contain:
(i) internally prepared statements of income and expense of the
Borrower and its Subsidiaries in reasonable detail for the applicable
period prepared in all material aspects in accordance with GAAP
(except for the absence of footnotes),
(ii) a schedule of all Capital Expenditures estimated to be made
during the period,
(iii) a statement of the amounts and times by which the
Borrower and its Subsidiaries need to raise additional capital to meet
their obligations when due during the period,
(iv) projected balance sheets of the Borrower and its
Subsidiaries,
(v) projected cash flow statements of the Borrower and its
Subsidiaries, and
(vi) a statement listing all assumptions which formed the basis
for (i) through (v),
each together with supporting schedules in sufficient detail as needed and
in all material aspects in accordance with the Approved Annual Operating
Business Plan delivered pursuant to (S)8.13(a) and on a consistent basis.
(b) No later than August 14 of each fiscal year of the Borrower,
beginning with its 1998 fiscal year, a report, certified as true and
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correct by the chief or principal financial or accounting officer of the
Borrower, that shows in reasonable detail, variances, if any, between the
actual operating performance of the Borrower and its Subsidiaries and what
was estimated for the first six months of such fiscal year in the Approved
Annual Operating Business Plan for such fiscal year (or the Approved Full
Term Operating Business Plan if the Required Lenders have not approved a
plan delivered pursuant to (S)6.14(a) with respect to such fiscal year) and
explains in reasonable detail in form satisfactory to the Required Lenders
the reasons for the discrepancies between them, if any.
(c) As soon as practicable, but in any event not later than 50 days
after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, copies of the internally prepared unaudited
Consolidated balance sheets of the Borrower and its Subsidiaries as of the
end of such quarter and related Consolidated statements of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal quarter and
ending with the end of such fiscal quarter, and Consolidated and
consolidating statements of income and a Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the period commencing at the
end of the previous fiscal year of the Borrower and ending with the end of
such quarter, all in reasonable detail and each setting forth in
comparative form:
(i) the figures for the prior year's corresponding fiscal
quarter, and
(ii) so long as the Borrower is required to deliver an annual
operating business plan pursuant to (S)6.14(a), any variances from the
Approved Annual Operating Business Plan (or the Approved Full Term
Operating Business Plan, if the Required Lenders have not approved a
plan delivered pursuant to (S)6.14(a) with respect to such fiscal
year),
if any, prepared in all material aspects in accordance with GAAP, together
with a certification by the principal or chief financial or accounting
officer of the Borrower that the information contained in such financial
statements fairly presents the financial position of the Borrower and its
Subsidiaries on the date thereof (subject to year-end adjustments).
(d) As soon as practicable, but in any event no later than 90 days
after the end of each fiscal year of the Borrower, the audited Consolidated
balance sheet of the Borrower and its Subsidiaries as at the end of such
year, and the related audited Consolidated statements of income and the
audited Consolidated statement of cash flows of the Borrower and its
Subsidiaries for such year prepared in accordance with GAAP, and so long as
the Borrower is required to deliver an annual operating business plan
pursuant to (S)6.14(a), a separate variance analysis setting forth in
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comparative form the figures for the previous fiscal year and any variances
from the applicable period of the Approved Annual Operating Business Plan
(or the Approved Full Term Operating Business Plan, if the Required Lenders
have not approved a plan delivered pursuant to (S)6.14(a) with respect to
such fiscal year) in reasonable detail. Such balance sheets, statements of
income and statement of cash flows shall contain a certified audit report
of a nationally recognized independent certified public accounting firm
satisfactory to the Administrative Agent, which report shall contain an
unqualified opinion of such accounting firm, and an "agreed-upon
procedures" report pursuant to which the accountants:
(i) review the Borrower's statement that the Borrower is in
compliance with the provisions of the Expense Allocation Agreement,
(ii) perform the agreed upon review procedures applicable
thereto, and
(iii) confirm that in examining the financial statements of the
Borrower and its Subsidiaries they have not become aware of any
Default with respect to the Expense Allocation Agreement, or, if such
accountants shall have obtained knowledge of any then existing Default
they shall disclose in such report any such Default;
provided that such accountants shall not be liable to the Lenders for
--------
failure to obtain knowledge of any Default. The annual financial
statements shall also be accompanied by a management letter of the
Borrower's accountants (only to the extent otherwise obtained by the
Borrower).
(e) Simultaneously with the delivery of the financial statements
referred to in subsections (c) and (d) above,
(i) a statement certified by the chief or principal financial or
accounting officer of the Borrower, in form and substance satisfactory
to the Administrative Agent, setting forth in reasonable detail
computations evidencing compliance with the covenants contained in
(S)(S) 6.15 and 7.05, and, if in making the calculations required to
be made pursuant to (S)6.15(b), the Borrower would not be in
compliance with such covenant but for the inclusion therein of amounts
under (S)6.15(b)(i)(D)(1)(III), a certificate of the Grandparent as to
the amount of unrestricted cash, Cash Equivalents and undrawn lines of
credit available to be drawn, as of the date specified in such Section
for such calculations, in each case with respect to the fiscal quarter
or fiscal year, as the case may be, relating to the financial
statements then being delivered, and
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(ii) a Tranche X Borrowing Base Certificate showing the Tranche X
Borrowing Base as of the last day of such fiscal quarter or fiscal
year, as the case may be.
(f) Within 50 days after the end of each fiscal quarter of the
Borrower, a report on
(i) with respect to each Operating Subsidiary:
(A) the number of cell sites constructed and cell sites
where equipment with an aggregate purchase price in excess of
$1,000,000 is located,
(B) the total number of customers, and
(C) the average monthly revenue per customer,
(ii) payments by the Borrower or any of its Subsidiaries to the
Grandparent or any of its Affiliates (other than payments by the
Borrower or any of its Subsidiaries to one another), or to any
Subsidiary of the Borrower that is not a Subsidiary, whether as
dividends, payments under any management, service or tax-allocation
agreement or otherwise; and
(iii) equity contributions to the Borrower, the Persons
providing the same and any issuance or sale of shares of Stock or
other equity interests in the Borrower or any of its Subsidiaries,
during such fiscal quarter, together with a report showing variances from
the estimates previously provided to Administrative Agent and each Lender
in the Annual Approved Operating Business Plan (or the Approved Full Term
Operating Business Plan, if the Required Lenders have not approved a plan
delivered pursuant to (S)6.14(a) with respect to such fiscal year), along
with an explanation of discrepancies between the actual numbers and the
estimated numbers.
(g) Within three Business Days after the filing or mailing thereof,
copies of all
(i) materials filed with the Securities and Exchange Commission
by the Borrower or any of its Subsidiaries or the Grandparent;
(ii) information sent to the stockholders of the Borrower or
lenders to the Borrower (exclusive of proprietary information); or
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(iii) information and reports directly and materially related to
the Borrower and its Subsidiaries that the Grandparent would be
required to file with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934, if the Grandparent were a
public company subject to the reporting requirements of such Act;
provided that, if the information or reports covered by this clause
--------
(iii) contain proprietary information, the Borrower shall not be
obligated to provide the proprietary information hereunder unless
(A) the Person that is the source of the information or
reports is a public company, and
(B) such Person would then be required to file such
proprietary information with the Securities and Exchange
Commission.
(h) Within 50 days after the end of each fiscal quarter of the
Borrower, an accounts-receivable-aging report in respect of each Operating
Subsidiary.
(i) Within three Business Days after an officer or director of the
Borrower shall have knowledge of the occurrence and continuance thereof,
written notice of the occurrence and continuance of a Default, together
with a statement of what action the Borrower is taking or proposes to take
with respect thereto. If any Person shall give any notice or take any
other action in respect of a claimed default (whether or not constituting a
Default) under this Agreement or any other note, evidence of indebtedness,
indenture or other obligation to which or with respect to which the
Borrower or any of its Subsidiaries is a party or obligor, whether as
principal, guarantor, surety or otherwise, which could result in the party
to whom such indebtedness is owed having the right under its governing
documents to accelerate such indebtedness, and such acceleration would have
a Material Adverse Effect, the Borrower shall forthwith give written notice
thereof to the Administrative Agent, describing the notice or action and
the nature of the claimed default.
(j) As soon as possible, and in any event within 10 Business Days
(i) after making any such report, written notice of any violation
of any Environmental Law that the Borrower reports in writing or is
reportable by such Person in writing (or for which any written report
supplemental to any oral report is made) to any federal, state or
local environmental agency, and
(ii) after the Borrower shall become aware thereof, written
notice of any inquiry, proceeding, investigation, or other action,
including a notice from any agency of potential environmental
liability, or any federal, state or local environmental agency or
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board, that, has the potential to materially affect the assets,
liabilities, financial conditions or operations of the Borrower or any
of its Subsidiaries or the security interests for the benefit of the
Secured Parties pursuant to any of the Collateral Documents.
(k) As soon as possible, and in any event within 10 days after the
Borrower or any ERISA Affiliate knows or has reason to know or believes
that any ERISA Affiliate knows or has reason to know or believes that any
ERISA Event has occurred, a statement of the chief or principal financial
or accounting officer of the Borrower or such ERISA Affiliate describing
such ERISA Event, together with any correspondence with, or filings made
with, the PBGC or Department of Labor, and the action, if any, which the
Borrower or such ERISA Affiliate proposes to take with respect thereto.
(l) Promptly after
(i) filing the same with the Department of Labor or Internal
Revenue Service, (A) a copy of its initial actuarial statement
required to be submitted under (S)103(d) of ERISA and Annual Report,
Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan, and (B) a notice of all subsequent filings
(with copies to be provided upon request of the Administrative Agent),
(ii) receipt or dispatch thereof, a copy of any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under
(S)(S)302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in
respect of a Multiemployer Plan, under (S)4041A, 4202, 4219, 4242 or
4245 of ERISA, and
(iii) becoming aware of the occurrence thereof, notice of (A)
any transaction that could result in the imposition of a penalty under
(S)502(i) of ERISA or an excise tax under (S)4975 against the
Borrower, any of its Subsidiaries or an ERISA Affiliate; (B) any
partial or complete withdrawal from a Multiemployer Plan by the
Borrower, any of its Subsidiaries or an ERISA Affiliate; (C) a failure
by the Borrower, any of its Subsidiaries or an ERISA Affiliate to make
a payment to a Plan required to avoid imposition of a lien under
(S)302(f) of ERISA; (D) the adoption of an amendment to a Guaranteed
Pension Plan requiring the provision of security under (S)307 of
ERISA; or (E) any change in the actuarial assumptions or funding
methods used for any Guaranteed Pension Plan, where the effect of such
change is to materially increase the unfunded benefit liability or
materially reduce the obligation to make periodic contributions.
(m) Within three Business Days after becoming aware of any setoff of
any claims (including, with respect to the Real Estate, environmental
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claims), withholdings or other defenses to which any of the Collateral, or
the Collateral Agent's, the Administrative Agent's or the Lenders' rights
with respect to the Collateral, are subject, written notice thereof.
(n) Within 10 days after becoming aware thereof of
(i) any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting the Borrower or any of
its Subsidiaries or to which the Borrower or any of its Subsidiaries
is or becomes a party that could reasonably be expected to have a
Material Adverse Effect (which notice shall include a statement as to
the nature and status of the proceedings), or
(ii) any judgment not covered by insurance, final or otherwise,
against the Borrower or any of its Subsidiaries in an amount in excess
of $1,000,000,
written notice thereof.
(o) Within 120 days after the end of each fiscal year of the Borrower,
beginning with its fiscal year ended December 31, 2001, and for so long as
any Advances are outstanding and exceed at such time (i) the Tranche X
Borrowing Base as of such date minus (ii) the amount calculated under
clause (a)(ii) of the definition of "Tranche X Borrowing Base" as of such
date, a report that includes calculations showing in reasonable detail the
Borrower's Excess Cash Flow for such fiscal year, if any, certified as
correct by the Borrower's chief or principal financial or accounting
officer.
(p) Within three Business Days after its receipt thereof, copies of
all material notices and correspondence received from or sent to the FCC
relating to any FCC License listed on Schedule 5.07.
-------------
(q) In accordance with the terms of the applicable Collateral
Documents, written notice to the Administrative Agent of a change in (i)
the business or corporate name of any of the Loan Parties, (ii) the
location of any of the Collateral or (iii) the chief executive office or
other locations of each Loan Party or the location where the books and
records of the Borrower or any of its Subsidiaries are kept.
(r) Within 50 days after the end of each fiscal quarter of the
Borrower, a report showing the respective aggregate principal amounts of
all Indebtedness outstanding as of the last day of such fiscal quarter
under each Permitted Loan Agreement other than this Agreement and the Bank
of America Loan Agreement.
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(s) As soon as available and in any event within 30 days after the end
of each fiscal year of the Borrower and when necessary in connection with a
repetition of any representation or warranty referring thereto in
connection with any Draw Request, a report supplementing the Schedules
hereto, including without limitation (i) new Subsidiaries of the Borrower
and ownership of the Stock thereof, (ii) any change in the designation of
any BTA as set forth in, or any addition, deletion or other change to,
Schedule 1.01 and (iii) a description of such other changes in the
-------------
information included in such Schedules as may be necessary for such
Schedules to be accurate and complete in all material respects.
(t) Within 10 Business Days following the occurrence thereof, written
notice of any FCC License Transfer or C-Block General License Revocation
Event, specifying the affected FCC License or geographic area, as
applicable, and setting forth in reasonable detail the terms of such
disposition.
(u) Such other information concerning the business operations or
financial condition of any Loan Party or any of its Subsidiaries as the
Administrative Agent or any Lender shall from time to time reasonably
request.
Upon the Administrative Agent's receipt of any and all financial and other
information furnished by the Borrower pursuant to this (S)6.14 the
Administrative Agent shall promptly deliver copies thereof to each Lender.
Section 6.15. Financial Covenants of the Borrower. So long as any Loan,
-----------------------------------
Note or other of the obligations of the Borrower are outstanding hereunder or
any Lender has any Commitment, the Borrower covenants that:
(a) Revenue: for each Fiscal Quarter, prior to the first Fiscal
-------
Quarter in which EBTDA shall have exceeded zero for two successive fiscal
quarters, Revenue will be not less than the applicable amount shown on
Schedule 6.15 (a) with respect to such Fiscal Quarter;
(b) Fixed Charge Coverage Ratio: it will maintain, with respect to
---------------------------
each Fiscal Quarter, beginning with the Fiscal Quarter ending on December
31, 2001 the ratio of:
(i) Adjusted EBITDA, to:
(ii) the sum of
(A) the aggregate scheduled amount of principal and interest
payable in cash in respect of Indebtedness of the Borrower and its
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Subsidiaries (including in respect of the Advances, payments under the
Permitted Loan Agreements, Capitalized Leases and Indebtedness owing to the
FCC) to Persons other than the Borrower or any of its Subsidiaries, plus
(B) dividends paid by the Borrower pursuant to (S)7.05, plus
(C) Capital Expenditures by the Borrower and its Subsidiaries,
plus
(D) cash income taxes paid by the Borrower and its Subsidiaries,
plus
(E) mandatory prepayments of the Advances by the Borrower
pursuant to (S)3.02(a) or, to the extent resulting from an FCC License
Transfer described in (S)7.06(b)(iii)(B)(1)(III) and mandatory prepayments
by the Borrower pursuant to any similar provision contained in the other
Permitted Loan Agreements, plus
(F) any fees paid pursuant to (S)2.03 hereof, Section 3.1 of the
Bank of America Loan Agreement (to the extent not immediately reimbursed by
Ericsson) and any other similar fees paid in respect of any other
Indebtedness by the Borrower or any of its Subsidiaries,
in each case in respect of such Fiscal Quarter and the three Fiscal
Quarters immediately preceding such Fiscal Quarter, of not less than 1.1:1;
(c) Leverage ratio (Adjusted EBITDA): it will maintain, with respect
--------------------------------
to each Fiscal Quarter beginning with the Fiscal Quarter ending on December
31, 2000 a ratio of Consolidated Indebtedness (other than Subordinated
Indebtedness) of the Borrower and its Subsidiaries as of the last day of
such Fiscal Quarter to Adjusted EBITDA of the Borrower for such Fiscal
Quarter of not more than the ratio set forth in Schedule 6.15(c);
(d) Leverage ratio (EBTDA): it will maintain, with respect to each
----------------------
Fiscal Quarter beginning with the Fiscal Quarter ending on December 31,
2002 a ratio of Consolidated Indebtedness (other than Subordinated
Indebtedness) of the Borrower and its Subsidiaries as of the last day of
such Fiscal Quarter to EBTDA for such Fiscal Quarter and the three Fiscal
Quarters immediately preceding such Fiscal Quarter of not more than the
applicable amount shown as Schedule 6.15(d);
(e) DCSR (Adjusted EBITDA/Debt Service): it will maintain, with
-----------------------------------
respect to each Fiscal Quarter beginning with the Fiscal Quarter ending on
December 31, 2000, a ratio for such Fiscal Quarter and the three Fiscal
Quarters immediately preceding such Fiscal Quarter of Adjusted EBITDA to
Debt Service of not less than 1.2:1.0; and
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(f) DSCR (EBTDA/Debt Service): it will maintain, with respect to each
-------------------------
Fiscal Quarter beginning with the Fiscal Quarter ending on December 31,
2003 a ratio for such Fiscal Quarter and the three Fiscal Quarters
immediately preceding such Fiscal Quarter of EBTDA to Debt Service of not
less than 1.2:1.0.
Section 6.16. Certified Copies of Insurance Policies. Within 30 days
--------------------------------------
after the Closing Date, deliver to the Administrative Agent certified copies by
the applicable insurer(s) of all insurance policies that shall have been
required to have been delivered to the Administrative Agent by the Closing Date
pursuant to (S)8.05(b).
Section 6.17. Mortgage Liens. If the Borrower or any of its
--------------
Subsidiaries shall acquire any Real Estate and shall not at the time of such
acquisition incur Indebtedness with respect thereto pursuant to
(S)7.01(d)(ii)(B), the Borrower shall grant, or cause such Subsidiary to grant,
to the Collateral Agent on behalf of the Secured Parties a first-mortgage Lien
on such Real Estate in form and substance satisfactory to the Required Lenders.
Any Lien on any such Real Estate shall provide that it shall be released upon
the incurrence of any Indebtedness under (S)7.01(d)(ii)(B) that is secured by a
Lien on such Real Estate permitted under (S)7.02(d)(ii).
Section 6.18. New Subsidiaries. Upon the creation of any Subsidiary not
----------------
in existence on the date hereof, the Borrower shall at its expense:
(a) duly execute and deliver, or cause such Subsidiary to duly
execute and deliver, to the Administrative Agent and the Collateral Agent a
Subsidiary Guaranty in respect of such Subsidiary (with such changes
thereto as either Agent may reasonably request);
(b) duly execute and deliver, or cause such Subsidiary to duly
execute and deliver, to the Administrative Agent and the Collateral Agent,
a Subsidiary Security Agreement (with such changes thereto as either Agent
may reasonably request) and such other mortgages, pledges, assignments and
other security agreements, in form and substance reasonably satisfactory to
the Agents, securing payment of all of the obligations of such Subsidiary
under its Guaranty and the obligations of the Loan Parties under the Loan
Documents and constituting Liens on all Collateral described therein; and
pledge, or cause to be pledged, to the Collateral Agent on behalf of the
Secured Parties, all authorized, issued and outstanding capital stock of
such Subsidiary; and execute and/or deliver to the Administrative Agent
each other document or instrument required to be delivered in connection
with the execution and delivery of such Security Agreement pursuant to
(S)(S)8.14(c)(1) through (8);
(c) take whatever action (including without limitation the recording
of mortgages, the filing of Uniform Commercial Code financing statements,
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the giving of notices and the endorsement of notices on title documents)
may be necessary or advisable in the opinion of either Agent to vest in the
Collateral Agent (or in any representative of the Collateral Agent
designated by it) valid and subsisting Liens on the properties purported to
be subject to the security agreements delivered pursuant to this (S)6.18,
enforceable against all third parties in accordance with their terms;
(d) deliver to the Administrative Agent a signed copy of favorable
opinions, addressed to the Agents and the Lenders, of counsel for the
Borrower acceptable to the Administrative Agent as to such matters relating
to such Subsidiary as either Agent may reasonably request; and
(e) at any time and from time to time, promptly execute and deliver
any and all further instruments and documents and take all such other
action as the Administrative Agent may deem desirable in obtaining the full
benefits of, or in preserving the Liens of, each security agreement
delivered pursuant to this (S)6.18 and mortgages and other agreements and
instruments entered into by such Subsidiary.
Section 6.19. [Intentionally omitted.]
Section 6.20. D-, E- and F-Block Subsidiaries. While any D-, E- and F-
-------------------------------
Block Subsidiary shall be a guarantor hereunder the Borrower will cause such
Persons to perform and observe each covenant and condition hereunder applicable
to, and as if such Person were, a Subsidiary of the Borrower.
Section 6.21. Post-Closing Requirements. If the Borrower shall install
any intelligent network in Pennsylvania or any other jurisdiction that is not a
permitted BTA where the following would be appropriate, it will file such UCC
financing statements as may be necessary or appropriate and provide such
opinions of counsel as may be reasonably requested by the Administrative Agent
or Collateral Agent in connection therewith.
ARTICLE VII
CERTAIN NEGATIVE COVENANTS OF THE BORROWER
------------------------------------------
The Borrower covenants and agrees that, so long as any Loan or Note or fees
or expenses are outstanding or any Lender has any Commitment hereunder:
Section 7.01. Restrictions on Indebtedness. The Borrower shall not
----------------------------
create, incur, assume, guarantee or suffer to exist, or permit any of its
Subsidiaries to create, incur, assume, guarantee or suffer to exist,
contingently or otherwise, any Indebtedness other than (without duplication):
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(a) In the case of the Borrower:
(i) Indebtedness to the Lenders arising under any of the Loan
Documents;
(ii) Indebtedness outstanding under the Bank of America Loan
Agreement and any other Permitted Loan Agreement, except for any such
Indebtedness described in clause (a)(v) below;
(iii) Indebtedness the proceeds of which are used to prepay
Advances pursuant to (S)3.02(f), but only so long as:
(A) the aggregate principal amount of such Indebtedness does
not exceed the aggregate principal amount of the Indebtedness
then being prepaid or repaid with such proceeds, in whole or in
part, and
(B) no portion of the principal amount of such Indebtedness
is scheduled to be repaid or has required prepayments prior to
the Tranche Y Maturity Date;
(iv) Subordinated Debt;
(v) Indebtedness the proceeds of which are used solely for
working-capital purposes, but only so long as the aggregate principal
amount of such Indebtedness outstanding on any date does not exceed
the lesser of:
(A) $25,000,000, and
(B) an amount that, when divided by the aggregate POPs of
all Permitted BTAs, equals $2.00; and
(vi) guaranties of Indebtedness permitted under clause (c)(ii) or
(iii) below.
(b) In the case of any of the Borrower's Subsidiaries:
(i) Indebtedness arising by way of a guaranty of Indebtedness of
the Borrower under any Permitted Loan Agreement, and
(ii) Indebtedness owing to the Borrower not evidenced by a note
or other instrument.
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(c) In the case of any License Subsidiary:
(i) Indebtedness owing to the FCC in connection with the payment
of the deferred-purchase price of FCC Licenses held by such License
Subsidiary, and
(ii) Indebtedness owing to any Person incurred in connection with
any extension of the maturity, or any refunding or refinancing, in
whole or in part, of any Indebtedness described in clause (c)(i) above
of such License Subsidiary, but only to the extent that:
(A) such extending, refunding or refinancing is otherwise
permitted by this Agreement, and
(B) the principal amount of such Indebtedness shall not be
increased above the principal amount thereof outstanding
immediately prior to such extension, refunding or refinancing,
and the direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such extension,
refunding or refinancing; and
(iii) purchase-money Indebtedness owing to the seller of (A) any
FCC License, or (B) all of the Stock in any Person holding an FCC
License, in each case incurred by a License Subsidiary that holds no
other assets in order to acquire such FCC License, such ownership
interests, but only to the extent that such Indebtedness is (x)
unsecured and (y) non-recourse to the Borrower or any Subsidiary of
the Borrower other than such License Subsidiary except as permitted
under (S)7.03(c).
(d) In the case of the Borrower and the Operating Subsidiary:
(i) purchase-money Indebtedness (in addition to all other
purchase-money Indebtedness permitted under this Section 7.01) and
guaranties of such purchase-money Indebtedness permitted under clause
(c)(ii) or (iii) above in an aggregate principal amount outstanding at
any one time not to exceed $20,000,000 (but, with respect to any such
purchase-money Indebtedness, only to the extent such purchase-money
Indebtedness is in a principal amount that does not exceed the fair
market value of the property being acquired);
(ii) (A) Capital Lease obligations at any one time outstanding
not to exceed $5,000,000, and
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(B) Indebtedness incurred in the acquisition of Real Estate
or within six months after the date of acquisition of Real Estate
and that is secured by a Lien permitted under (S)7.02(d)(ii),
but only so long as:
(I) the aggregate principal amount of Indebtedness under
clauses (A) and (B) above at any one time outstanding does not
exceed $10,000,000 and
(II) such Indebtedness is in a principal amount that does
not exceed the fair market value of the property being acquired
or leased;
(iii) purchase-money Indebtedness (in addition to any other
purchase-money Indebtedness described under clauses (i) and (ii) above
and clause (iv) below of this paragraph (d)) incurred in order to
acquire inventory (other than in respect of handsets and accessories
with respect thereto manufactured or supplied by Ericsson or Orbitel
or their respective Affiliates, but only to the extent such
Indebtedness is in a principal amount that does not exceed the fair
market value of the property being acquired); and
(iv) purchase-money Indebtedness (in addition to any purchase-
money Indebtedness described in clauses (a)(i), (a)(ii) and (d)(i)
above) incurred in connection with the purchase of equipment and
services the purchase price of which would be included in Excluded
Other Costs (except to the extent such Excluded Other Costs are
treated as Other Costs as provided in the definition of "Other
Costs"), in an aggregate principal amount at any one time outstanding
not to exceed $25,000,000 but only to the extent such Indebtedness is
in a principal amount that does not exceed the fair market value of
the property being acquired.
Notwithstanding subsections (a) through (d) above, neither the Borrower nor any
of its Subsidiaries shall create, incur, assume, guarantee or suffer to exist
any Indebtedness on any date if the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries (other than (x) any
Indebtedness owing to the FCC and without duplication of Indebtedness permitted
hereunder and Guaranties with respect to such Indebtedness and (y) any
Subordinated Debt owing to the Grandparent or any of its Subsidiaries) would
exceed $35.00 multiplied by the aggregate POPs of all Permitted BTAs as of such
date (excluding any POPs in geographic areas for which the right to provide PCS
services shall have been sold pursuant to FCC License Partitions on or before
such date).
Indebtedness to the Grandparent or any of its Subsidiaries shall only be
permitted hereunder pursuant to subsection (a)(iv) above.
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Section 7.02. Restrictions on Liens. The Borrower shall not (A) create
---------------------
or incur or suffer to be created or incurred or to exist any Lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest of any kind
upon any of its Property or assets of any character whether now owned or
hereafter acquired, or upon the income or profits therefrom; (B) transfer any of
such Property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (C) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title-retention or purchase-money security agreement, device or
arrangement; (D) suffer to exist for a period of more than 30 days after the
same shall have been incurred any Indebtedness or claim or demand against it
that if unpaid might by law or upon bankruptcy or insolvency, or otherwise, be
given any priority whatsoever over its general creditors; or (E) sell, assign,
pledge or otherwise transfer any accounts, contract rights, general intangibles,
chattel paper or instruments, with or without recourse; and shall not permit any
of its Subsidiaries to do any of the foregoing; provided that the Borrower or
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any Subsidiary may create or incur or suffer to be created or incurred or to
exist the following (collectively, "Permitted Liens"):
---------------
(a) Liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or Liens on Properties to secure claims
for labor, material or supplies in respect of obligations not overdue;
(b) deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance;
(c) Liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties, in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(d) encumbrances on Real Estate consisting of:
(i) easements, rights of way, zoning restrictions, restrictions
on the use of real property and defects and irregularities in the
title thereto, landlord's or lessor's liens under leases to which such
the Borrower or any of its Subsidiaries is a party, and other minor
liens or encumbrances none of which in the opinion of the Borrower
interferes materially with the use of the property affected in the
ordinary conduct of the business of the Borrower or any of its
Subsidiaries, which defects do not individually or in the aggregate
have a Material Adverse Effect on the business of the Borrower or any
of its Subsidiaries, and
(ii) with respect to Real Estate the acquisition price for which
is not included in Other Costs, mortgage (or deed of trust) Liens
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(collectively, "Mortgage Liens") to secure the payment of Indebtedness
--------------
permitted to be incurred under (S)7.01(d)(ii)(B); provided that
--------
(A) the amount secured by any Mortgage Lien shall not exceed
the sum of (1) the acquisition cost of the Real Estate acquired
by the Borrower or any of its Subsidiaries and (2) the cost of
any improvements constructed thereon; and
(B) the Borrower or such Subsidiary shall simultaneously
with the acquisition of the Real Estate in question either:
(1) grant to the Collateral Agent a second mortgage (or
deed of trust), in form and substance satisfactory to the
Required Lenders, subordinate only to the Mortgage Lien, and
securing the obligations of the Borrower and its
Subsidiaries owing to lenders that are parties to the
Intercreditor Agreement, or
(2) cause the lender in whose favor the Mortgage Lien
is to be made to execute and deliver to the Collateral Agent
an option to purchase the Mortgage Lien, substantially in
the form of Exhibit F;
---------
(e) Liens in favor of the Collateral Agent for the benefit of the
lenders and agents parties to the Intercreditor Agreement securing the
obligations permitted to be secured under the Intercreditor Agreement;
(f) deposits to secure the performance of bids, trade contracts (other
than in respect of Indebtedness 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
not to exceed in the aggregate at any one time $5,000,000;
(g) Liens on FCC Licenses and proceeds of the sale or other
disposition thereof in favor of the FCC securing Indebtedness owing by
License Subsidiaries to the FCC or lenders of permitted Indebtedness
pursuant to (S)7.01(c)(ii); and
(h) Liens securing purchase-money Indebtedness permitted under
(S)7.01(d)(i), (ii), (iii) or (iv) owing to a Person that is not a party to
the Intercreditor Agreement; provided that such Liens cover only the
--------
property acquired with the proceeds of such Indebtedness and the proceeds
of such property to the extent the applicable Uniform Commercial Code
provides for the automatic perfection of a security interest in such
proceeds.
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Section 7.03. No Contingent Obligations. The Borrower shall not create,
-------------------------
incur, assume, guarantee or remain liable, or permit any of its Subsidiaries to
create, incur, assume, guarantee or remain liable, on any Contingent Obligations
other than:
(a) the Guaranties,
(b) guaranties of Indebtedness under other Permitted Loan Agreements,
and
(c) guaranties permitted under (S)(S)7.01(a)(vi) and (d)(i) of
Indebtedness permitted under (S)7.01(c)(ii) or (iii).
Section 7.04. Restrictions on Investments. The Borrower shall not
---------------------------
make or permit to exist or to remain outstanding, or permit any of its
Subsidiaries to make or permit to exist or to remain outstanding, any Investment
except:
(a) Investments in Rate Hedging Agreements in a notional principal
amount on any date reasonably related to the aggregate principal amount of
Indebtedness of the Borrower accruing interest at a floating rate, and only
so long as the purpose of such Investments shall be to hedge such floating-
rate interest and shall not be to speculate on interest rates;
(b) Investments in commercial paper maturing in 90 days or less from
the date of issuance which, at the time of acquisition by the Borrower or
any of its Subsidiaries, is accorded a rating of "A1" or better by Standard
& Poor's Ratings Group or "P1" or better by Moody's Investors Service, Inc.
or an equivalent rating by another nationally recognized credit-rating
agency of similar standing;
(c) Investments in
(i) direct obligations of, or obligations guaranteed by, the
United States of America or any agency that constitutes a full-faith-
and-credit obligation of the United States of America, in any case
maturing in 12 months or less from the date of acquisition thereof,
and
(ii) repurchase agreements fully secured by underlying
securities of the type described in clause (i) above and issued by a
bank or trust company meeting the requirements of (S)7.04(d);
(d) Investments in certificates of deposit maturing within six months
from the date of issuance thereof (i) issued by a bank or trust company
organized under the laws of the United States or any state thereof, having
capital, surplus and undivided profits aggregating at least $500,000,000
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and whose long-term certificates of deposit are, at the time of acquisition
thereof by the Borrower, rated "AA" or better by Standard & Poor's Ratings
Group or "A" or better by Moody's Investors Service, Inc., or (ii) issued
by any Lender;
(e) Investments in money-market funds (other than single-state funds)
that make investments in accordance with the regulations of the Securities
and Exchange Commission under the Investment Company Act of 1940, as
amended;
(f) loans or advances in the usual and ordinary course of business to
officers, directors and employees for expenses (including moving expenses
related to a transfer) incidental to carrying on the business of the
Borrower or any of its Subsidiaries;
(g) Investments by the Borrower in its Subsidiaries, by Operating
Subsidiaries in License Subsidiaries and by Subsidiaries in the Borrower by
way of loans;
(h) Investments by the Borrower or any of its Subsidiaries (except as
the Borrower and the Required Lenders may otherwise agree) in Qualified
Joint Ventures; provided that the aggregate amount of such Investments at
--------
any one time outstanding shall not exceed $20,000,000;
(i) loans, advances, installment sales or receivables that would
constitute Investments, in each case in respect of sales of handsets and
accessories thereto to retail end users on payment terms requiring full
payment within 365 days following such sales;
(j) Investments existing on the date hereof and listed on Schedule
7.04;
(k) Investments consisting of loans to the Grandparent made with the
proceeds of a Tranche Y Loan within two Business Days after the date on
which such Loan is made (the "Tranche Y Mirror Note"), but only if:
---------------------
(i) such loan is payable on demand following the acceleration of
the Tranche Y Loans,
(ii) such loan ranks at least pari passu with all other senior
Indebtedness of the Grandparent,
(iii) such loan is otherwise on terms providing for interest and
principal amortization substantially as provided herein for Tranche Y
Loans,
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(iv) such loan is evidenced by a promissory note that is an
instrument within the meaning of the New York Uniform Commercial Code
and is in form and substance satisfactory to the Required Lenders and
(v) such promissory note is pledged to the Collateral Agent as
security for the Borrower's obligations hereunder and under the other
loan documents and is delivered to the Collateral Agent;
(l) Investments by the Borrower and its Subsidiaries consisting of
seller-take-back financing permitted under (S)7.06(b)(iii)(A)(1); and
(m) Investments by the Borrower or any of its Subsidiaries pursuant to
the terms of the Cash Management Agreement, including investments by the agent
thereunder in OII (but only so long as OII shall incur no Indebtedness and grant
no Liens on any of its assets), which in turn will make Investments of the type
described in clauses (a) through (g) above.
The aggregate amount of any Investment consisting of non-cash consideration in
any Qualified Joint Venture shall be the greater of (A) the net book value of
the assets (as determined in accordance with GAAP) contributed thereto (or, in
the case of a contribution by way of an FCC License Partition, a ratable portion
of such net book value, determined with respect to the total POPs of such BTA),
net of any purchase-money Indebtedness of the Borrower or a Restricted
Subsidiary in respect thereof that is assumed by the acquiror thereof, and (B)
the fair-market value of the assets so contributed, as determined in good faith
by the Board of Directors of the Grandparent.
Section 7.05. Distributions. The Borrower shall not make, or permit any
-------------
of its Subsidiaries to make, any Distributions (other than a dividend or other
distribution of any shares of common Stock of the Borrower subject to the
Parent's pledge under the Parent Pledge Agreement) in respect of the Borrower's
Stock or any Subordinated Debt of the Borrower, except that the Borrower may:
(a) pay interest in respect of Subordinated Debt owing to the
Grandparent or any of its Subsidiaries, but only if:
(i) at the time of and after giving effect to such payment, no
Default shall have occurred and be continuing, and
(ii) interest on such Subordinated Debt shall accrue at a rate
per annum not exceeding a fixed rate of 12% per annum (or, if
approved by the Required Lenders, such higher rate as is consistent
with then-available market rates);
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(b) repay or prepay principal owing in respect of Subordinated Debt
owing to the Grandparent or any of its Subsidiaries, but only if:
(i) at the time of and after giving effect to such repayment or
prepayment, no Default shall have occurred and be continuing,
(ii) the aggregate principal amount of all such Subordinated Debt
that is being repaid or prepaid at such time shall not exceed the sum
of:
(A) the difference, if any, between:
(1) the maximum aggregate principal amount of the
Loans that could then be outstanding at such time under
(S)2.01, and
(2) the sum of:
(I) the aggregate principal amount of the Loans
that are actually outstanding at such time, and
(II) the aggregate principal amount of such
Subordinated Debt that shall have been repaid or
prepaid after the date of this Agreement and is
allocable to amounts that may be distributed pursuant
to this clause (A),
(B) the difference, if any, between:
(1) the maximum aggregate principal amount of the
Indebtedness that could then be outstanding at such time
under other Permitted Loan Agreements, and
(2) the sum of:
(I) the aggregate principal amount of the
Indebtedness that is actually outstanding thereunder at
such time, and
(II) the aggregate principal amount of such
Subordinated Debt that shall have been repaid or
prepaid after the date of this Agreement and is
allocable to amounts that may be distributed pursuant
to this clause (B), and
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(C) the amount equal to:
(1) the aggregate principal amount of such Subordinated
Debt that shall have been loaned to the Borrower within the
180 days preceding the date of such repayment or prepayment,
minus
(2) the aggregate principal amount of such Subordinated
Debt that shall have been repaid within the 180 days
preceding the date of such repayment or prepayment and is
allocable to amounts that may be distributed pursuant to
this clause (C);
provided that:
--------
(x) any such repayment or prepayment on any date shall
be allocated to clause (A), (B) or (C) above for purposes of
determining whether any distribution may be made pursuant to
this clause (ii) in the following order of priority: first,
-----
any such repayment or prepayment shall be allocated to
clause (C) above until any further allocation to such clause
on such date would cause the amount calculated pursuant to
such clause to be less than zero; second any such repayment
------
or prepayment shall be allocated to clause (B) above until
any further allocation to such clause on such date would
cause the amount calculated pursuant to such clause to be
less than zero; and third any such repayment or prepayment
-----
shall be allocated to clause (A) above, and
(y) any such repayment or prepayment that is made with
proceeds of a borrowing under this Agreement or any
Permitted Loan Agreement shall not be taken into account for
the computation provided for in clause (A)(2)(II) or
(B)(2)(II) above; and
(iii) at any preceding date, no Default would have occurred if
such Subordinated Debt had not been outstanding; and
(c) so long as no Default shall have occurred and be continuing at the
time of and after giving effect to such Distribution, make a Distribution
of an amount equal to the Net Cash Proceeds of any Sale with respect to any
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FCC License, the Stock of any License Subsidiary, to the extent such Net
Cash Proceeds are not required to be applied to the prepayment of Advances
pursuant to (S)3.02 or of any other Indebtedness of the Borrower or any of
its Subsidiaries; and
(d) make other Distributions (other than Distributions in respect of
Subordinated Debt owing to Persons other than the Borrower or the Parent),
but only if at the time of and after giving effect to such Distribution:
(i) no Default shall have occurred and be continuing,
(ii) the Borrower and its Subsidiaries shall have had
Consolidated EBTDA in excess of zero for each of its four consecutive
Fiscal Quarters ending with its Fiscal Quarter most recently ended
prior to the date of such Distribution (the "Preceding Fiscal
----------------
Quarter") and
(iii) the aggregate amount for all Distributions by the Borrower
during the fiscal year of the Borrower in which the date of such
Distribution occurs shall not exceed:
(A) Working Capital as of the last day of the Preceding
Fiscal Quarter, minus
(B) the aggregate amount of Debt Service payable by the
Borrower and its Subsidiaries during the 12 calendar months next-
following the Preceding Fiscal Quarter, minus
(C) the aggregate amount of any prepayment of Indebtedness
required to be made pursuant to (S)3.02(c) hereunder and any
other similar prepayment of Indebtedness of the Borrower from
Excess Cash Flow pursuant to a Permitted Loan Agreement during
the Borrower's then-current fiscal year and that has not
theretofore been made.
Section 7.06. Merger, Consolidation, Disposition of Assets, Etc. (a)
-------------------------------------------------
The Borrower shall not merge into or consolidate with any Person or permit any
Person to merge into it, and shall not permit any of its Subsidiaries to do any
of the foregoing.
(b) The Borrower shall not, and shall not permit any Subsidiary to, become
a party to or agree to or effect any disposition of assets (including without
limitation any disposition of any right to use any portion of any wavelength
covered by any FCC License or any right to provide PCS services to any POPs in
any geographic area within any Permitted BTA), other than:
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(i) the disposition of assets in the ordinary course of business,
(ii) the disposition of obsolete assets or equipment no longer
necessary to the operation of the Borrower's or any Subsidiary's business,
consistent with sound and prudent practices,
(iii) so long as no Default shall have occurred and be continuing at
the time thereof any:
(A) Permitted C-Block FCC License Transfers,
(B) any other FCC License Transfer, FCC License Partition and any
disposition of equipment or other assets used primarily for the
operation of a BTA with respect to which such FCC License Transfer or
FCC License Partition shall have occurred, but, in each case, only if:
(1) one of the following shall be true:
(I) after giving effect to such disposition and all
other FCC License Transfers (other than Permitted C-Block
License Transfers and dispositions as a result of the
occurrence of a C-Block General License Revocation Event)
and FCC License Partitions, the number of POPs included in
BTAs as to which such FCC License Transfers shall have
occurred and geographic areas for which the right to provide
PCS services shall have been disposed of pursuant to FCC
License Partitions (other than dispositions as to which a
condition specified in clause (II), (III), (IV) or (V) below
shall have been satisfied) shall not exceed 5% of the total
POPs of all BTAs that are Permitted BTAs as of the Closing
Date;
(II) such disposition is an FCC License Transfer and
all of the following are true: (a) the sole consideration
paid in connection with the disposition is the FCC License
in respect of which the FCC License Transfer shall have
occurred; (b) in consideration for such disposition an FCC
License is acquired for the same BTA as that for the FCC
License being disposed of, and such acquired FCC License
covers at least the same amount of spectrum as the FCC
License being disposed of; (c) no asset other than such FCC
License is disposed of in connection with such disposition;
(d) no License Subsidiary or other Loan Party shall be
liable for the payment of any Indebtedness owing to the FCC
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in connection with the payment of the deferred-purchase
price for the FCC License being disposed of; and (e) no
Indebtedness is incurred by the Borrower and its
Subsidiaries in connection with such disposition except
Indebtedness owing to the FCC in an aggregate principal
amount not exceeding the aggregate principal amount of
Indebtedness owing to the FCC in respect of the FCC License
being disposed of;
(III) such disposition is an FCC License Transfer
relating to a C-Block FCC License and all of the following
are true: (a) a License Subsidiary shall hold either (x)
one or more FCC Licenses or (y) the right to provide, on
terms and conditions satisfactory to the Required Lenders,
PCS services under FCC Licenses held by third parties
covering at least 10 MHz of spectrum; (b) no asset other
than such FCC License is disposed of in connection with such
disposition; (c) such disposition is by way of either (x) a
sale that complies with the requirements of clause (V) below
or (y) a Permitted C-Block FCC License Transfer; and (iv) no
License Subsidiary or other Loan Party shall be liable for
the payment of the Indebtedness owing to the FCC in
connection with the payment of the deferred purchase price
of the FCC License being disposed of;
(IV) the Required Lenders shall have accepted as a
Permitted BTA a BTA in substitution for the BTA as to which
such FCC License Transfer shall have occurred; or
(V) of the aggregate value of the consideration
received by the Borrower and its Subsidiaries therefor (as
determined in good faith by the Board of Directors of the
Grandparent), no less than 75% shall be cash payable at
the time of such sale (or in the case of a C-Block FCC
License or F-Block FCC License, shall be in the form of
forgiveness or assumption of Indebtedness owing to the FCC)
and no more than 25% shall be in the form of deferred cash
payments, and no consideration shall be in any other form,
and such consideration shall be at least equal to the fair-
market value (as determined in good faith by the Board of
Directors of the Grandparent) of the assets sold ;
(2) no equipment or other assets that are disposed of shall
be assets that are necessary for the normal commercial operation
of any Permitted BTA; and
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(3) such disposition, if other than an FCC License
Partition, shall not relate to a Core BTA;
(C) dispositions of the right to use no more than 10 MHz of
spectrum in the aggregate in respect of any C-Block FCC License, so
long as the consideration received therefor shall be at least equal to
the fair-market value (as determined in good faith by the Board of
Directors of the Grandparent) thereof and such disposition shall be
made only to (1) a Person that then owns spectrum that may be used for
providing cellular or PCS wireless telecommunications services for
profit or (2) a Person that cannot provide cellular or PCS wireless
telecommunications services for profit; and
(D) capital contributions to Qualified Joint Ventures by way of
FCC License Transfers and FCC License Partitions, and contributions of
any equipment and other assets used primarily for the operation of the
related Permitted BTA or applicable geographic area thereof, so long
as:
(1) such disposition shall be in compliance with
(S)7.04(h),
(2) such disposition, if an FCC License Transfer, shall not
relate to an FCC License for a Core BTA and
(3) the aggregate value of the consideration received by
the Borrower and its Subsidiaries for such contribution shall at
least be equal to the fair-market value (as determined in good
faith by the Board of Directors of the Grandparent) of the assets
so contributed;
(iv) other dispositions of assets for their fair-market value, as
determined in good faith by the Borrower, solely for cash consideration in
an amount not to exceed $10,000,000 in the aggregate during the term of
this Agreement; and
(v) transfers of assets from the Borrower to any Subsidiary or from a
Subsidiary to the Borrower or another Subsidiary, in each case to the
extent that, after giving effect to such transfer, the transferee would be
in compliance with its obligations under (S)7.12.
If the Borrower or any of its Subsidiaries shall make any disposition of
any assets pursuant to clause (iii)(D) above to a Qualified Joint Venture, the
Borrower shall not thereafter permit such Qualified Joint Venture to fail to
continue to qualify as a Qualified Joint Venture, except in a transaction
involving a disposition of the assets of such Qualified Joint Venture that is
otherwise permitted under this subsection (b). The Borrower shall not, and
shall not permit any Subsidiary to, contribute any assets to a Qualified Joint
Venture except to the extent reasonably necessary for the contemplated
operations of such Qualified Joint Venture.
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(c) Except with the agreement of the Required Lenders, the Borrower shall
not permit any Subsidiary to issue or sell any Stock or other equity interest in
itself, other than to the Borrower or another Subsidiary of the Borrower and
only if such Stock is pledged as security under the Collateral Documents.
Section 7.07. Sale and Leaseback. The Borrower shall not enter into, or
------------------
permit any of its Subsidiaries to enter into, any arrangement, directly or
indirectly, whereby the Borrower or any of its Subsidiaries shall sell or
transfer any Property owned by it in order then or thereafter to lease such
Property or lease other property that the Borrower or such Subsidiary intends to
use for substantially the same purpose as the Property being sold or
transferred.
Section 7.08. Compliance with Environmental Laws. The Borrower shall
----------------------------------
not, and shall not permit any of its Subsidiaries to:
(a) use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of Materials of Environmental
Concern, except in compliance with Environmental Laws;
(b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Materials of
Environmental Concern, except in compliance with Environmental Laws;
(c) generate any Materials of Environmental Concern on any of the Real
Estate, except in compliance with Environmental Laws;
(d) conduct any activity at any Real Estate or use any Real Estate in
any manner so as to cause a release (i.e., releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) or threatened release of Materials of
Environmental Concern on, upon or into the Real Estate except in compliance
with Environmental Laws; or
(e) otherwise conduct any activity at any Real Estate, except in
compliance with Environmental Laws, or use any Real Estate in any manner
that would violate any Environmental Law or bring such Real Estate in
violation of any Environmental Law.
Section 7.09. Employee Benefit Plans. Neither the Borrower nor any ERISA
----------------------
Affiliate shall, nor shall the Borrower permit any of its Subsidiaries to:
(a) engage in any "prohibited transaction" within the meaning of
(S)406 of ERISA or (S)4975 of the IRC which could result in a material
liability for the Borrower;
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(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in (S)302 of ERISA, whether or
not such deficiency is or may be waived;
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the
Borrower pursuant to (S)302(f) or (S)4068 of ERISA;
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of (S)4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities;
(e) fail to make when due any required contributions to a
Multiemployer Plan;
(f) withdraw (completely or partially) from any Multiemployer Plan
where such withdrawal is likely to result in a material liability of the
Borrower or an ERISA Affiliate;
(g) terminate or institute proceedings to terminate, any Guaranteed
Pension Plan, where such termination is likely to result in a material
liability of the Borrower or an ERISA Affiliate;
(h) make any amendment to any Guaranteed Pension Plan with respect to
which security is required under (S)307 of ERISA; or
(i) fail to give any and all notices and make all disclosures and
governmental filings required under ERISA or the IRC where such failure is
likely to result in material liability to the Borrower or an ERISA
Affiliate.
Section 7.10. New Subsidiaries. The Borrower shall not create or acquire
----------------
any Person other than Operating Subsidiaries, Licenses Subsidiaries, any Person
the sole asset of which consists of its partnership interest in a general or
limited partnership or equity interest in a corporation or limited liability
company.
Section 7.11. Transactions with Affiliates. The Borrower shall not enter
----------------------------
into, or permit any of its Subsidiaries to enter into:
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(a) any agreement or arrangement providing for the payment of any
amounts to any of its Affiliates, except that:
(i) the Borrower may enter into the Expense Allocation Agreement;
and any Operating Subsidiary may enter into (A) the Cash Management
Agreement, (B) a services agreement substantially in the form of
Exhibit D-1 hereto, between such Operating Subsidiary and Omnipoint
-----------
Services and (C) one or more operating agreements substantially in the
form of Exhibit D-2 hereto, between such Operating Subsidiary and a
-----------
License Subsidiary;
(ii) the Borrower and its Subsidiaries may enter into a tax-
sharing agreement or arrangement pursuant to which the Borrower and
its Subsidiaries shall not make any payments or agree to make any
payments in lieu of income taxes unless the cumulative sum of such
payments does not exceed the cumulative sum of income taxes that the
Borrower and its Subsidiaries would have paid if the Borrower and its
Subsidiaries had always filed income-tax returns as separate entities;
and
(iii) the Borrower and its Subsidiaries may enter into a
management, consulting or other agreement, but only if such agreement
either
(A) relates to providing management, consulting or other
services to an Affiliate operating BTA markets and
(1) is on terms that are fair and reasonable and no
less favorable to the Borrower or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a
Person not an Affiliate; and
(2) does not provide for the performance of services or
purchase or delivery of property by the Borrower or such
Subsidiary in a manner that, individually or together with
all other such agreements with Affiliates operating BTA
markets, would have a material adverse effect on the ability
of the Borrower or such Subsidiary to build-out or operate
any BTA or MTA for which it owns the applicable FCC License,
or
(B) is approved in writing by the Required Lenders, or
(b) any other agreement, arrangement or transaction with any of its
Affiliates (whether or not providing for the payment of any amounts to any
of its Affiliates), except in the ordinary course of business and on terms
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that are fair and reasonable and no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate.
Section 7.12. Permitted Business. The Borrower shall not:
------------------
(a) engage in any business other than the holding of Stock of
Operating Subsidiaries and License Subsidiaries and the purchasing and
reselling to Subsidiaries of equipment used in connection with the build-
out and operation of PCS Systems for which FCC Licenses for BTAs other than
Excluded BTAs are held by License Subsidiaries or hold any assets other
than such Stock and the Tranche Y Mirror Note,
(b) permit any License Subsidiary to engage in any business other than
the holding of FCC Licenses and the licensing thereof to other Persons to
the extent permitted hereunder or hold any assets other than FCC Licenses,
and
(c) permit any Operating Subsidiary to engage in any business other
than the development, construction and operation of PCS Systems and related
businesses.
Section 7.13. Charter Amendments. The Borrower shall not, and shall not
------------------
permit any of its Subsidiaries to, amend its certificate of incorporation or
limited liability company formation documents or bylaws.
Section 7.14. Accounting Changes. The Borrower shall not make or permit,
------------------
or permit any of its Subsidiaries to make or permit, any change in accounting
policies or reporting practices, except as required by GAAP, or change its
fiscal year.
Section 7.15. Prepayments, Etc., of Indebtedness. The Borrower shall not
----------------------------------
and shall not permit any Subsidiary:
(a) to prepay, redeem, purchase, defease or otherwise satisfy prior to
the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Indebtedness owing by the
Borrower or any of its Subsidiaries, other than the prepayment of the
Advances in accordance with the terms of this Agreement or as the Required
Lenders may otherwise agree, except for (i) prepayments, redemptions,
purchases or other satisfactions by the Borrower as to which lenders under
the Intercreditor Agreement are not required to pay any amount to other
lenders party thereto, (ii) Indebtedness owing to the FCC, (iii) the
prepayment of advances under the Bank of America Loan Agreement due to an
event described in Article 4 thereof not attributable to any fault on the
part of the Borrower or any Affiliate thereof, or (iv) the prepayment of
Subordinated Debt to the extent permitted under the applicable
Subordination Agreement and Section 7.05 above, or
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(b) to amend, modify or change in any manner any term or condition of
any Subordinated Debt or any other Indebtedness secured by Liens in favor
of the Collateral Agent, except for amendments, modifications and changes
that the lenders party to the Intercreditor Agreement are permitted to
enter into thereunder.
If on any date any amount shall be due and owing hereunder and under any other
Indebtedness of the Borrower or any of its Subsidiaries and the Borrower or such
Subsidiary shall not pay in full all such amounts as are then due and owing, the
Borrower shall not pay, or permit such Subsidiary to pay, any such amounts
except ratably, in accordance with the respective amounts then due and owing
thereunder. If the Borrower shall take any action in violation of this Section
7.15, it irrevocably authorizes each lender to it that is a party to the
Intercreditor Agreement on its behalf to make any payment required under the
Intercreditor Agreement and acknowledges that any amount so paid by any such
lender shall be deemed not to have been paid by the Borrower or such Subsidiary
to such lender.
Section 7.16. Amendment, Etc., of Material Contracts. The Borrower shall
--------------------------------------
not, and shall not permit any Subsidiary to, cancel or terminate any Material
Contract or consent to or accept any cancellation or termination thereof, amend
or otherwise modify any Material Contract or give any consent, waiver or
approval thereunder, waive any default under or breach of any Material Contract,
agree in any manner to any other amendment, modification or change of any term
or condition of any Material Contract, or take any other action in connection
with any Material Contract, and shall not permit any of its Subsidiaries to do
any of the foregoing, that, in any such case, could, at the time thereof,
reasonably be expected to have a material adverse effect on the ability of the
Borrower or any of its Subsidiaries to perform its obligations under this
Agreement or any other Loan Document.
Section 7.17. Restrictions on Subsidiaries. (a) The Borrower shall not
----------------------------
enter into or suffer to exist, or permit any of its Subsidiaries to enter into
or suffer to exist, any agreement prohibiting or conditioning the creation or
assumption of any Lien in favor of the Collateral Agent upon any of its property
or assets or limiting the ability of any Subsidiary to declare and pay dividends
and distributions or make Investments in the Borrower.
(b) So long as any Advances are outstanding or any other amount is
owing under the Loan Documents, no Distribution shall be made by any Qualified
Joint Venture except in cash or to any Person other than the Borrower and its
Subsidiaries if such Person would receive more than 10% of the total amount of
such Distribution or if the total amount of all such Distributions during any
calendar year would exceed the Excess Cash Flow of such Qualified Joint Venture
for the immediately preceding calendar year.
Section 7.18. Partnerships. The Borrower shall not become, or permit any
------------
of its Subsidiaries to become, a general partner in any general or limited
partnership other than any Subsidiary the sole asset of which consists of its
interest in such partnership.
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Section 7.19. Default Under the Equipment Acquisition Agreement. The
-------------------------------------------------
Borrower shall not and shall not permit any of its Subsidiaries to default in
the performance or observance of any covenants or conditions on its part to be
performed or observed under the Equipment Acquisition Agreement.
Section 7.20. Collections of Receivables. The Borrower shall not, and
--------------------------
shall not permit any of its Subsidiaries to, collect any receivables arising
from providing PCS or other services or sales of handsets or other assets,
except through the Operating Subsidiary or Omnipoint Services through the
Services Agreement.
ARTICLE VIII
CONDITIONS TO THE INITIAL ADVANCE
---------------------------------
The obligations of each Applicable Lenders to make any initial Advance
shall be subject to the satisfaction of the following conditions precedent on or
prior to the date of such initial Advance (the "Closing Date"):
------------
Section 8.01. Terms and Conditions of Transaction. (a) Each Lender
-----------------------------------
shall have received a Note, payable to the order of such Lender, duly executed
and delivered by the Borrower, as well as copies of each of the other Loan
Documents, which shall have been duly executed and delivered by the respective
parties thereto, shall be in full force and effect and shall be in form and
substance satisfactory to the Administrative Agent, each of the Lenders and
their counsel.
(b) The Lenders shall be satisfied with the final terms and conditions of
the transactions contemplated hereby and by the other Loan Documents, including,
without limitation, all legal and tax aspects thereof.
(c) The Lenders shall be satisfied with the corporate and legal structure
and capitalization of the Borrower and its Subsidiaries, including, without
limitation, their respective charters and bylaws and each agreement or
instrument relating thereto.
Section 8.02. Due Diligence. The Lenders shall have completed a due-
-------------
diligence investigation of the Borrower and its Subsidiaries in scope, and with
results, satisfactory to the Lenders and shall have been given such access to
the management, records, books of account, contracts and properties of the
Borrower and shall have received such financial, business and other information
regarding the Borrower and its Subsidiaries as they shall have requested.
Section 8.03. Validity of Liens. The Borrower Security Agreement, the
-----------------
Parent Pledge Agreement and each other Collateral Document required to be
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entered into on the date hereof shall be effective to create in favor of the
Collateral Agent a legal, valid and enforceable first-priority security interest
(except for Permitted Liens that have priority under applicable law) in and Lien
upon the Collateral. All filings, recordings, deliveries of instruments and
other actions necessary or desirable in the opinion of the Collateral Agent to
protect and preserve such security interests shall have been duly effected, all
such documents shall have been duly executed by the applicable Loan Party and
all filing and recording fees and taxes relating to any of the foregoing shall
have been duly paid. The Administrative Agent shall have received evidence
thereof in form and substance satisfactory to the Administrative Agent.
Section 8.04. Search Reports and Related Documents. The Administrative
------------------------------------
Agent shall have received
(a) such Uniform Commercial Code, tax, patent, trademark and judgment
lien search reports with respect to such applicable public offices where
Liens are filed, as shall be acceptable to the Administrative Agent,
disclosing that there are no Liens of record (other than Permitted Liens)
in such official's office covering any Collateral or showing any Loan Party
as a debtor thereunder;
(b) a certificate of each Loan Party signed by an authorized officer
of such Loan Party, dated the Closing Date, certifying that, as of the
Closing Date, there will exist no Liens on the Collateral other than
Permitted Liens; and
(c) acknowledgment copies or duly executed file-stamped copies of UCC-
1 and UCC-3 financing statements with respect to the Collateral (other than
the pledged Collateral), filed in each office in each jurisdiction that the
Administrative Agent may deem necessary or appropriate to perfect and
protect a first-priority Lien on the Collateral.
Section 8.05. Certificates of Insurance. The Administrative Agent shall
-------------------------
have received:
(a) a certificate of insurance from an independent insurance broker,
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Collateral Documents and
this Agreement, and
(b) copies of all policies evidencing such insurance, which shall
contain provisions naming the Collateral Agent as an additional insured and
loss payee on behalf of the Lenders as its interests may appear, and
providing for 30-days' prior written notice to Administrative Agent and the
Collateral Agent of cancellation or diminishment.
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Section 8.06. Solvency Certificate. Each of the Lenders and the
--------------------
Administrative Agent shall have received an officer's certificate of the
Borrower and the Parent, in form and substance satisfactory to the
Administrative Agent and the Lenders, dated as of the Closing Date as to the
Borrower and the Parent being Solvent after giving effect to the consummation of
the transactions contemplated herein and in the other Loan Documents.
Section 8.07. Opinions of Counsel to the Borrower and its Subsidiaries.
--------------------------------------------------------
Each of the Lenders and the Administrative Agent shall have received favorable
legal opinions addressed to the Lenders and the Administrative Agent, each dated
as of the Closing Date, in form and substance satisfactory to the Lenders and
the Administrative Agent, from (i) Piper & Marbury, L.L.P., counsel to the
Borrower, (ii) Piper & Marbury, L.L.P., counsel to the Borrower's Subsidiaries,
and (iii) local counsel to the Borrower's Subsidiaries in such jurisdictions as
the Administrative Agent may reasonably request.
Section 8.08. Opinion of Counsel to the Parent. Each of the Lenders and
--------------------------------
the Administrative Agent shall have received a favorable legal opinion addressed
to the Lenders and the Administrative Agent, from Piper & Marbury, L.L.P.,
counsel to the Parent, dated as of the Closing Date, in form and substance
satisfactory to the Lenders and the Administrative Agent.
Section 8.09. Opinion of FCC Counsel. Each of the Lenders and the
----------------------
Administrative Agent shall have received a favorable legal opinion addressed to
the Lenders and Administrative Agent from Piper & Marbury, L.L.P., FCC counsel
to the Borrower and the Parent, dated as of the Closing Date, in form and
substance satisfactory to the Lenders and the Administrative Agent.
Section 8.10. Opinion of Counsel to the Administrative Agent. Each of
----------------------------------------------
the Lenders and the Administrative Agent shall have received a favorable legal
opinion addressed to the Lenders and Administrative Agent from Shearman &
Sterling, counsel to the Administrative Agent, dated as of the Closing Date, in
form and substance satisfactory to the Administrative Agent.
Section 8.11. Payment of Fees. The Borrower shall have paid all accrued
---------------
fees and expenses of the Administrative Agent, the Collateral Agent and the
Lenders, to the extent payable by the Borrower hereunder and under the other
Loan Documents.
Section 8.12. Approvals, Permits; FCC Licenses. (a) The Borrower and
--------------------------------
each of the License Subsidiaries and Operating Subsidiaries shall have obtained
all federal, state and local governmental and regulatory consents, approvals,
FCC Licenses and permits, including any third-party consents, as required or
necessary for the Borrower to accept Loans and for the Borrower and each of the
License Subsidiaries and Operating Subsidiaries to operate their businesses
pursuant to the Approved Full Term Operating Business Plan and shall maintain in
effect each of the foregoing; all applicable waiting periods shall have expired
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without any action being taken by any competent authority; no law or regulation
shall be applicable in the judgment of the Lenders that restrains, prevents or
imposes materially adverse conditions upon the Loans or the operation of the
businesses of the Borrower and each of the License Subsidiaries and Operating
Subsidiaries as currently operated, and the Administrative Agent and each of the
Lenders shall receive a certificate of an authorized officer of the Borrower to
that effect dated the Closing Date.
(b) The Lenders shall have received evidence satisfactory to the Lenders
that each FCC License listed in Parts I and II of Schedule 5.07 has been won by
the Grandparent and its Subsidiaries in FCC PCS auctions, has been transferred
to a License Subsidiary, that each such FCC License is held by a Subsidiary of
the Grandparent and that no such FCC License is subject or likely to be subject
to any revocation action commenced or threatened by the FCC or to being
purchased by any Person other than a License Subsidiary.
Section 8.13. Delivery of Full-Term Operating Business Plan. The
---------------------------------------------
Borrower shall have delivered to the Administrative Agent and each Lender a
full-term operating business plan, each of which shall be in form and substance
satisfactory to the Administrative Agent and each Lender, together with (i) a
certificate of the chief or principal financial or accounting officer dated the
Closing Date certifying as to the reasonableness of the assumptions and
expectations contained therein and that there are presently no facts known to
such Person that would make either such plan misleading in any material respect
and (ii) such pro-forma financial statements and projections for the Borrower
and its Subsidiaries, in form and substance satisfactory to the Lenders, as
shall be reasonably requested by the Lenders.
Section 8.14. Security Agreements. The Borrower shall have delivered to
-------------------
the Administrative Agent and each Lender copies of each of the following:
(a) a security agreement (as amended from time to time, the "Borrower
--------
Security Agreement"), in substantially the form of Exhibit E-1, duly
------------------ -----------
executed by the Borrower, that, among other things, grants to the
Collateral Agent for the benefit of the Secured Parties a Lien on such
assets of the Borrower (including without limitation all issued and
outstanding Stock of each License Subsidiary and each Operating Subsidiary
owned by the Borrower) as the Lenders may request;
(b) a pledge agreement (as amended from time to time, the "Parent
------
Pledge Agreement"), in substantially the form of Exhibit E-2, duly executed
---------------- -----------
by the Parent, that, among other things, pledges to the Collateral Agent
for the benefit of the Secured Parties all issued and outstanding Stock of
the Borrower owned by the Parent;
(c) [Intentionally omitted.]
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(d) a pledge agreement (as amended from time to time, a "D-, E- and F-
------------
Block Subsidiary Pledge Agreement"), in substantially the form of Exhibit
--------------------------------- -------
E-4, duly executed by the D-, E- and F-Block Parent, that, among other
---
things, pledges to the Collateral Agent for the benefit of the Secured
Parties all issued and outstanding Stock of each D-, E- and F-Block
Subsidiary;
(e) security agreements (together with each other security agreement
delivered pursuant to (S)6.18(b), in each case as amended from time to
time, a "Subsidiary Security Agreement"), substantially in the form of
-----------------------------
Exhibit E-5 hereto, duly executed by the Guarantors (other than the
-----------
Parent), each of which, among other things, grants to the Collateral Agent
for the benefit of the Secured Parties a Lien on such assets of such
Guarantor (including, in the case of any Operating Subsidiary, all issued
and outstanding Stock of each of its Subsidiaries that is a License
Subsidiary or an Operating Subsidiary, but in the case of any License
Subsidiary, excluding any assets for which the grant of such a Lien would
violate applicable FCC regulations) as the Lenders may request; and
in each case together with:
(1) if applicable, certificates representing the any shares of
Stock pledged under such Security Agreement, accompanied by undated
stock powers executed in blank,
(2) duly executed financing statements, in proper form for filing
under the Uniform Commercial Code of all jurisdictions that the
Administrative Agent may deem necessary or desirable in order to perfect
and protect the first priority liens and security interests created under
such Security Agreement covering the Collateral described in such Security
Agreement,
(3) evidence of any insurance required by the terms of such
Security Agreement,
(4) evidence that all other action that the Administrative Agent
may deem necessary or desirable in order to perfect and protect the
first priority liens and security interests created under such
Security Agreement has been taken.
Section 8.15. Guaranties. The Borrower shall have delivered to the
----------
Administrative Agent and each Lender copies of each of the following:
(a) from the Parent, a limited-recourse guaranty in substantially the
form of Exhibit H-1 hereto (as amended, supplemented or otherwise modified
-----------
from time to time in accordance with its terms, the "Limited Recourse
----------------
Parent Guaranty"), duly executed by the Parent,
---------------
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(b) [Intentionally omitted.],
(c) from the D-, E- and F-Block Subsidiary Parent, a limited-recourse
guaranty in substantially the form of Exhibit H-3 hereto (as amended,
-----------
supplemented or otherwise modified from time to time in accordance with its
terms, the "D-, E- and F-Block Subsidiary Parent Limited Recourse
-----------------------------------------------------
Guaranty"), duly executed by the D-, E- and F-Block Subsidiary Parent, and
(d) from each Operating Subsidiary and each License Subsidiary, a
guaranty in substantially the form of Exhibit H-4 hereto (together with
-----------
each other such guaranty delivered pursuant to (S)6.18(a), in each case as
amended, supplemented or otherwise modified from time to time in accordance
with its terms, a "Subsidiary Guaranty"), duly executed by each Operating
-------------------
Subsidiary and each License Subsidiary.
Section 8.16. Mortgages, Etc. The Borrower shall have delivered to the
---------------
Administrative Agent and each Lender copies of deeds of trust, trust deeds,
mortgages, leasehold mortgages and leasehold deeds of trust in form and
substance satisfactory to the Administrative Agent and covering the properties
listed on Schedule 8.16 hereto (together with each other mortgage delivered
-------------
pursuant to (S)6.18(b), in each case as amended, supplemented or otherwise
modified from time to time in accordance with their terms, the "Mortgages"),
---------
duly executed by each party thereto, in each case together with:
(a) evidence that counterparts of the Mortgages have been duly
recorded on or before the day of the initial Advance (or, with respect to
any such Mortgage entered into after the date of the initial Advance in
accordance with this Agreement, on or before the date of execution and
delivery of such Mortgage) in all filing or recording offices that the
Administrative Agent may deem necessary or desirable in order to create a
valid first and subsisting Lien (other than Permitted Liens) on the
property described therein in favor of the Secured Parties and that all
filing and recording taxes and fees have been paid;
(b) evidence of the insurance required by the terms of such Mortgage,
and
(c) evidence that all other action that the Administrative Agent or
Collateral Agent may deem necessary or desirable in order to create valid
first and subsisting Liens on the property described in such Mortgage has
been taken.
Section 8.17. Attornment and Recognition Agreements. The Borrower shall
-------------------------------------
have delivered to the Administrative Agent and each Lender copies of each
attornment and recognition agreement required by (S)6.11.
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Section 8.18. Material Agreements. Subject to confidentiality
-------------------
restrictions, the Administrative Agent and each of the Lenders shall have
received a complete and correct copy, in form and substance satisfactory to the
Lenders, of (a) the Expense Allocation Agreement and the servicing agreement and
form of licensing agreement referred to in (S)7.11(a)(i), in each case (if
applicable) as then in effect and duly executed by the parties thereto, and (b)
each other contract set forth on Schedule 5.27, as such other contract is then
-------------
in effect and as to which the Administrative Agent shall have requested a copy
on or before the Closing Date.
Section 8.19. Litigation. There shall exist no action, suit,
----------
investigation, litigation or proceeding pending or threatened in any court or
before any arbitrator or governmental instrumentality affecting any of the
Parent, the Borrower or any of their respective Subsidiaries that
(i) could have a Material Adverse Effect, or
(ii) purports to affect the legality, validity or enforceability of
this Agreement, any Note, any other Loan Document or the consummation of
the transactions contemplated hereby or thereby or challenges any of the
Lenders' rights under this Agreement, any Note or any other Loan Agreement.
Section 8.20. Insurance Certificates. The Administrative Agent shall
----------------------
have received one or more insurance certificates to the effect set forth in
(S)6.05.
Section 8.21. No Default. No default shall have occurred and be
----------
continuing under the Equipment Acquisition Agreement.
Section 8.22. No Material Adverse Change. There shall have occurred no
--------------------------
material adverse change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of the Borrower or any of its
Subsidiaries since the date of the most recent audited financial statements
provided to the Lenders, and all information provided by or on behalf of the
Borrower to the Lenders prior to the date of the initial Advance shall be true
and correct in all material aspects.
Section 8.23. Corporate and Limited Liability Company Documents. The
-------------------------------------------------
Administrative Agent shall have received on or before the day of the initial
Advance the following, each dated such day (unless otherwise specified), in form
and substance satisfactory to each Lender (unless otherwise specified) and in
sufficient copies for each Lender:
(a) Certified copies of the resolutions of the Board of Directors of
the Borrower and each other Loan Party approving this Agreement, the Notes
and each other Loan Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate and limited liability
company action and governmental and other third party approvals and
consents, if any, with respect to this Agreement, the Notes and each other
Loan Document.
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(b) A copy of the charter or limited liability company agreement of
the Borrower, the Grandparent, the Parent and each other Loan Party and
each amendment thereto, certified (as of a date reasonably near the date of
the initial Advance) by the Secretary of State of the jurisdiction of its
incorporation or formation as being a true and correct copy thereof.
(c) A copy of a certificate of the Secretary of State of the
jurisdiction of incorporation or formation of the Borrower, the
Grandparent, the Parent and each other Loan Party, dated reasonably near
the date of the initial Advance, listing the charter of such Person and
each amendment thereto on file in his office and certifying that
(i) such amendments are the only amendments to such Person's
charter on file in his office,
(ii) such Person has paid all franchise taxes to the date of
such certificate, and
(iii) such Person is duly incorporated or formed and in good
standing under the laws of the state of incorporation or formation of
such Person.
(d) A copy of a certificate of the Secretary of State or other
appropriate representative of each state in which each of the Borrower and
each other Loan Party is engaged in any business, dated reasonably near the
date of the initial Advance, stating that each of the Borrower and each
other Loan Party is duly qualified and in good standing as a foreign
corporation in such state and has filed all annual reports required to be
filed to the date of such certificate.
(e) A certificate of the Borrower, the Parent and each other Loan
Party, signed on behalf of the Borrower, the Parent and such other Loan
Party by its President or a Vice President and its Secretary or any
Assistant Secretary, dated the date of the initial Advance (the statements
made in which certificate shall be true on and as of the date of the
initial Advance), certifying as to
(A) the absence of any amendments to the charter of the
Borrower, or such other Loan Party since the date of the Secretary of
State's certificate referred to in (S)8.23(c),
(B) a true and correct copy of the bylaws of the Borrower and
such other Loan Party as in effect on the date of the initial Advance,
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(C) the due incorporation or formation and good standing of the
Borrower and such other Loan Party as a corporation organized under
the laws of the jurisdiction in which such Loan Party is incorporated
or formed, and the absence of any proceeding for the dissolution or
liquidation of the Borrower, the Parent or such other Loan Party,
(D) the truth of the representations and warranties of such
Person contained in the Loan Documents as though made on and as of the
date of the initial Advance, and
(E) the absence of any event occurring and continuing, or
resulting from the initial Advance, that constitutes a Default.
(f) A certificate of the Secretary or an Assistant Secretary of the
Borrower, the Parent and each other Loan Party certifying as to the names
and true signatures of the officers of the Borrower, the Parent and such
other Loan Party authorized to sign this Agreement, the Notes and each
other Loan Document to which they are or are to be parties and the other
documents to be delivered hereunder and thereunder.
(g) All other documents, instruments, financial information and
opinions from the Borrower, the Grandparent, the Parent or any of the
Borrower's Subsidiaries (including opinions of counsel for the Borrower,
the Grandparent, the Parent or any such Subsidiary) as the Administrative
Agent and each Lender may reasonably request, in form and substance
satisfactory to the Administrative Agent and each Lender and their counsel,
and which shall be in full force and effect on the date of the initial
Advance.
Section 8.24. Intercreditor Agreement. The Borrower shall have delivered
-----------------------
to the Administrative Agent an intercreditor agreement substantially in the form
of Exhibit I, duly executed by the Collateral Agent (as the same may be amended
from time to time, the "Intercreditor Agreement").
-----------------------
Section 8.25. Support Agreement. The Borrower shall have delivered to
-----------------
the Administrative Agent a Support Agreement substantially in the form of
Exhibit J, duly executed by the Grandparent and the Borrower (as the same may be
amended from time to time, the "Support Agreement").
-----------------
Section 8.26. [Intentionally omitted.]
Section 8.27. Acknowledgement of Assignment. The Administrative Agent
-----------------------------
shall have received from Omnipoint Services a written statement to it in which
Omnipoint Services (a) consents to the assignment by the Operating Subsidiary
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party to the Services Agreement of all of its right, title and interest in and
to the Services Agreement (including, without limitation, the right to receive
any monies due thereunder) to the Collateral Agent pursuant to the Collateral
Documents, (b) agrees not to cancel or terminate the Services Agreement except
upon at least 90 days written notice to the Administrative Agent and (c)
agrees that the Administrative Agent or the Collateral Agent shall be entitled
to make any payment or otherwise perform any obligation or cure any default of
the Borrower or any of its Subsidiaries under the Services Agreement.
Section 8.28. Other Information. The Lenders and the Administrative
-----------------
Agent shall have received such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any Loan Party or any of its Subsidiaries as any Lender Party
(through the Administrative Agent) may from time to time reasonably request.
ARTICLE IX
ADDITIONAL CONDITIONS TO ADVANCES
---------------------------------
SECTION 9.01. Conditions Precedent to an Initial Advance Based on
---------------------------------------------------
Ericsson Related Expenses with Respect to Any Operating Subsidiary or License
- -----------------------------------------------------------------------------
Subsidiary. The obligation of the Lenders to make an Advance on the basis of
- ----------
any portion of the Tranche X Borrowing Base relating to Ericsson Related
Expenses relating to any Operating Subsidiary or License Subsidiary not in
existence on the date of the initial Advance, any FCC License not held by a
License Subsidiary as of the date of the initial Advance or any BTA in any
jurisdiction other than a jurisdiction as to which the Borrower shall have
received an opinion of counsel pursuant to (S)8.07, is subject to the
satisfaction of the following conditions precedent:
(a) the Lenders shall be satisfied with the corporate and legal
structure and capitalization of such Subsidiary, including the terms and
conditions of the charter, bylaws and each class of capital stock of such
Subsidiary and of each agreement or instrument relating thereto, and
(b) such Subsidiary (or the Borrower on behalf of such Subsidiary)
shall have delivered each agreement, opinion of counsel and other document
required to be delivered by or on behalf of such Subsidiary pursuant to
(S)6.18.
Section 9.02. Conditions to All Advances. The obligation of each
--------------------------
Applicable Lender to make any Advance, including its initial Advance, shall also
be subject to the satisfaction of the conditions precedent that on the date of
such Advance:
(a) The Administrative Agent shall have received a properly completed
Draw Request.
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(b) Each of the representations and warranties of the Borrower and
each other Loan Party contained in this Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection
with this Agreement or any other Loan Document is true and correct in all
material respects immediately prior to, and after giving effect to, the
making of such Advance and the application of the proceeds therefrom, as
though made on and as of such date (except to the extent of changes
resulting from transactions contemplated or permitted by this Agreement and
the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and to
the extent that such representations and warranties relate expressly to an
earlier date). The Administrative Agent shall have received a certificate
of an authorized officer of the Borrower to such effect.
(c) No event has occurred and is continuing, or would result from such
Advance or from the application of the proceeds therefrom, that constitutes
a Default or a default under any other Loan Document.
(d) No change shall have occurred in any law or regulations thereunder
or interpretations thereof that in the reasonable opinion of any Lender
would make it illegal for such Lender to make such Loan and no order of any
court or Governmental Body has been entered prohibiting the consummation of
the transactions contemplated by the Loan Documents.
(e) Each Lender shall have received such statements in substance and
form reasonably satisfactory to such Lender as such Lender shall require
for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
(f) The Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
(g) The Borrower shall have delivered to the Administrative Agent
invoices or other evidence reasonably satisfactory to the Administrative
Agent showing the aggregate amount of Ericsson Related Expenses that have
been incurred by the Borrower and its Subsidiaries through the date of such
Advance.
SECTION 9.03. Conditions to the Effectiveness of this Agreement. The
-------------------------------------------------
effectiveness of this Agreement shall be subject to the satisfaction of the
following conditions precedent:
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(a) The Administrative Agent and the Lenders shall have received a
consent, duly executed by the Guarantors and in form and substance
satisfactory to each Lender, to this Agreement.
(b) The Administrative Agent and the Lenders shall have received (i) a
Note, duly executed and delivered by the Borrower, and (ii) a Tranche Y
Mirror Note in favor of the Borrower, duly executed and delivered by the
Grandparent.
(c) The Bank of America Loan Agreement shall have been duly executed
and delivered by the parties thereto and a copy thereof delivered to the
Administrative Agent.
(d) The Administrative Agent and the Lenders shall have received a
signed copy of favorable opinions, addressed to the Agents and the Lenders,
of counsel for the Borrower acceptable to the Administrative Agent as to
such matters as either Agent may reasonably request.
(e) The Administrative Agent and the Lenders shall have received
signed copies of officer's certificates and other supporting documentation
acceptable to the Administrative Agent as to such matters as either Agent
may reasonably request.
ARTICLE X
EVENTS OF DEFAULT; ACCELERATION; ETC.
-------------------------------------
Section 10.01. Events of Default and Acceleration. Upon the occurrence
----------------------------------
and during the continuance of any of the following events,
(a) the Borrower shall fail to pay any principal of the Loans, any
fee, any interest on the Loans or any other sum hereunder or under any of
the other Loan Documents to which it is a party, in any such case within
three days after the date on which the same shall become due and payable;
or
(b) the Borrower shall fail to perform or observe any term, covenant
or agreement contained in Article VII or 6.15; provided that the Borrower
--------
shall have the right to comply with the covenants contained in
(S)(S)6.15(a), (b), (c), (d), (e) and (f) by providing, prior to the
delivery of the financial statement or other report to the Administrative
Agent disclosing the existence of such default, additional cash equity to
the extent that if such equity were included in Revenue, EBITDA or Adjusted
EBITDA, the Borrower would be in compliance with (S)(S)6.15(a), (b), (c),
(d), (e) and (f) as the case may be; or
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(c) any Loan Party shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents (other
than those specified elsewhere in this (S)10.01) and such failure shall
continue for a period of 30 days; or
(d) any representation or warranty made by any Loan Party or any of
its Subsidiaries (or any of its officers) under this Agreement or any of
the other Loan Documents or in any certificate, statement, document or
instrument delivered pursuant to or in connection with this Agreement or
any Loan Document shall not be correct in any material respect upon the
date when made or confirmed or deemed to have been made, confirmed or
repeated; or
(e) any Loan Party or any shareholder of the Borrower shall
(i) make an assignment for the benefit of creditors, or
(ii) generally not pay its debts as such debts become due or
admit in writing its inability to generally pay or generally fail to
pay its debts as they mature or become due, or
(iii) petition or apply for the appointment of a trustee or
other custodian, liquidator or receiver of any Loan Party or any such
shareholder or of any substantial part of the assets of any Loan Party
or any such shareholder, or
(iv) commence any case or other proceeding relating to any Loan
Party or any such shareholder under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction providing for the
relief of debtors, now or hereafter in effect, or
(v) shall take any action to authorize or in furtherance of any
of the foregoing,
or any such petition or application shall be filed or any such case or
other proceeding shall be commenced against any Loan Party or any such
shareholder and such Loan Party or shareholder shall indicate its approval
thereof, consent thereto or acquiescence therein or shall not be able to
have such proceeding dismissed within 30 days thereof or any of the actions
sought in such proceeding (including the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or any Loan Party or any such shareholder shall take any corporate
action to authorize any of the actions set forth above in this subsection
(e); or
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(f) the Borrower or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in respect
of any Indebtedness that is outstanding in an aggregate principal amount of
at least $5,000,000 (but excluding Indebtedness outstanding hereunder or
owing by any License Subsidiary to the FCC), when the same becomes due and
payable (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), or any other event shall occur or condition shall
exist under any agreement or instrument relating to any such Indebtedness,
if the effect of such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Indebtedness or otherwise to cause,
or to permit the holder thereof to cause, such Indebtedness to mature; or
any such Indebtedness shall be declared to be due and payable or required
to be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be made,
in each case prior to the stated maturity thereof; or
(g) any judgment or order for the payment of money in excess of
$1,000,000 (excluding any portion thereof that an insurance company of
recognized standing and creditworthiness has agreed to pay), or any
material non-monetary judgment or order, shall be rendered against the
Borrower and either
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or
(ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) any of the Loan Documents shall be cancelled, terminated, revoked
or rescinded otherwise than in accordance with the terms thereof or with
the express prior written agreement, consent or approval of the Lenders, or
any action at law, suit or in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of any Loan Party or any of its or their stockholders, or any court
or any other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or issue a judgment, order,
decree or ruling to the effect that, any one or more of the Loan Documents,
is illegal, invalid or unenforceable in accordance with the terms thereof;
or
(i) with respect to any Guaranteed Pension Plan, an ERISA Event shall
have occurred and the Required Lenders shall have determined in their
reasonable discretion that such event reasonably could be expected to
result in liability of the Borrower to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $250,000 and such event in the
circumstances occurring reasonably could constitute grounds for the
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termination of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to
administer such Guaranteed Pension Plan; or a trustee shall have been
appointed by the United States District Court to administer such Plan; or
the PBGC shall have instituted proceedings to terminate such Guaranteed
Pension Plan; or appointed a trustee to administer or liquidate any plan;
or
(j) the Borrower or any of its Subsidiaries shall be the subject of
writs of attachment or garnishment and the like that might have a Material
Adverse Effect and that are unstayed for a period of 30 consecutive days or
any such attachment shall not have been bonded over within 30 days of the
entry thereof; or
(k) the FCC or any other Governmental Body shall cancel, revoke,
suspend or fail to renew any FCC License held by any License Subsidiary
relating to (i) any right held by any Subsidiary to provide PCS services to
any POPs included in any Permitted BTA, in either case for which the
cancellation, revocation, suspension or failure to renew the FCC License
relating to which could reasonably be expected to have a Material Adverse
Effect, or (ii) any Permitted BTA for which Ericsson Related Expenses in
excess of $1,000,000 have been incurred, in either case except for any C-
Block General License Revocation Event or Proposed C-Block General License
Revocation Event; or
(l) the FCC or any other Governmental Body shall commence any
proceeding to cancel, revoke or suspend any FCC License held by any License
Subsidiary relating to BTAs described in clause (k) above, which proceeding
(i) could reasonably be expected to have a Material Adverse Effect, and
(ii) has not been stayed or enjoined within five Business Days after the
commencement of any such proceeding, in either case except for any C-Block
General License Revocation Event or Proposed C-Block General License
Revocation Event; or
(m) the Grandparent or any of its Affiliates shall fail to pay any
amount when due of Indebtedness owed to the FCC with respect to any C-Block
FCC License or shall otherwise default on such Indebtedness, if such
failure to pay or default constitutes or would with the passage of time
constitute a default under any Indebtedness owing to the FCC in respect of
any other FCC Licenses in respect of a Permitted BTA; or
(n) any License Subsidiary shall fail to pay when due amounts owing to
the FCC relating to BTAs described in clause (k) above unless (i) such
failure to pay can reasonably be expected, in the reasonable judgment of
the Required Lenders, not to result in any cancellation, revocation or
suspension of such FCC License or (ii) the Borrower has obtained a stay or
injunction against any action by the FCC to cancel, revoke or suspend such
FCC License notwithstanding such failure to pay and such injunction or stay
shall then be in effect; or
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(o) the Collateral Agent shall cease to have a valid and perfected
first-priority Lien on any Collateral securing any Loan Party's obligations
under any Loan Document, or any Loan Party shall so assert (subject,
however, to Permitted Liens entitled to priority in accordance with the
terms of the Loan Documents); or
(p) at any time any of the following shall occur:
(i) the Ownership Fraction shall be less than 51%;
(ii) any issuance by the Borrower or disposition by the Parent of
Stock of the Borrower shall occur, other than a Permitted Stock
Transfer, or any Person (other than Ericsson and its Affiliates)
engaged in, or having an Affiliate engaged in, the business of
manufacturing, selling or distributing telecommunications equipment
shall own, directly or indirectly, legal or beneficially, more than
30% of the Voting Stock of the Borrower then outstanding; or
(iii) all of each series and class of issued and outstanding
shares of Stock of the Borrower and each of its Subsidiaries shall
cease to be pledged as security for the obligations of the Borrower,
the other Loan Parties and their respective Subsidiaries hereunder and
under the other Loan Documents; or
(q) there shall occur in the judgment of the Required Lenders any
change in the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Loan Party that could
reasonably be expected to have a material adverse effect on the ability of
such Loan Party to perform its obligations under the Loan Documents to
which it is a party; or
(r) the Borrower or any Subsidiary shall default, after any applicable
grace period, under any equipment-acquisition agreement (other than the
Equipment Acquisition Agreement) providing for the purchase of more than
$10,000,000 in aggregate purchase price of equipment or other goods, from
any Person, or such Person shall so allege in writing;
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Lenders shall, by
notice to the Borrower, (i) declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and/or
(ii) declare the Notes, all interest thereon and all other amounts payable under
this Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall become and be
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forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided that upon the occurrence of an Event of Default under subsection (e)
- --------
above, (A) the obligation of each Lender to make Advances shall automatically be
terminated and (B) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE XI
THE ADMINISTRATIVE AGENT
------------------------
Section 11.01. Authorization and Action. Each Lender appoints and
------------------------
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to the Administrative Agent by the terms hereof
and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the Loan
Documents (including enforcement or collection of the Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders; provided that
--------
the Administrative Agent shall not be required to take any action that exposes
the Administrative Agent to personal liability or that is contrary to this
Agreement or applicable law. The Administrative Agent will give to each Lender
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
Section 11.02. Administrative Agent's Reliance, Etc. Neither the
------------------------------------
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent:
(a) may treat the Lender that made any Advance as the holder of the
Indebtedness resulting therefrom until the Administrative Agent receives
and accepts an Assignment and Acceptance entered into by such Lender, as
assignor, and an assignee, as provided in (S)12.07;
(b) may consult with legal counsel (including counsel for any Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts;
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(c) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with the Loan Documents;
(d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party;
(e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of,
or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or
any other instrument or document furnished pursuant thereto;
(f) shall incur no liability under or in respect of any Loan Document
by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telegram, telecopy, cable or telex) believed by it
to be genuine and signed or sent by the proper party or parties; and
(g) shall incur no liability as a result of any determination whether
the transactions contemplated by the Loan Documents constitute a "highly
leveraged transaction" within the meaning of the interpretations issued by
the Comptroller of the Currency, the Federal Deposit Insurance Corporation
and the Board of Governors of the Federal Reserve System.
Section 11.03. Ericsson and Affiliates. With respect to its Commitments,
-----------------------
the Advances made by it and the Note issued to it, Ericsson and any other
Administrative Agent in its individual capacity shall have the same rights and
powers under the Loan Documents as any other Lender and may exercise the same as
though it were not the Administrative Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include Ericsson in its individual
capacity or any other Administrative Agent in its individual capacity. Ericsson
or any other Administrative Agent in its individual capacity and its affiliates
may a generally engage in any kind of business with, the Borrower and any of its
Affiliates and any Person who may do business with or own securities of any
Borrower or any of its Affiliates, all as if Ericsson or any other
Administrative Agent in its individual capacity were not the Administrative
Agent and without any duty to account therefor to the Lenders.
Section 11.04. Lender Credit Decision. Each Lender acknowledges that it
----------------------
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and
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without reliance upon the Administrative 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
this Agreement.
Section 11.05. Indemnification. Each Lender severally will indemnify the
---------------
Administrative Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender's ratable share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Administrative Agent under the Loan Documents; provided that no Lender
--------
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Lender will reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses payable by the Borrower under (S)12.04, to the extent that the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrower. For purposes of this (S)11.05, the Lenders' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
(a) the aggregate principal amount of the Advances outstanding at such time and
owing to the respective Lenders and (b) the aggregate unused portions of their
respective Commitments. The failure of any Lender to reimburse the
Administrative Agent promptly upon demand for its ratable share of any amount
required to be paid by the Lenders to the Administrative Agent as provided
herein shall not relieve any other Lender of its obligation hereunder to
reimburse the Administrative Agent for its ratable share of such amount, but no
Lender shall be responsible for the failure of any other Lender to reimburse the
Administrative Agent for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreements and obligations of each Lender contained in this
(S)11.05 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the other Loan Documents.
Section 11.06. Successor Administrative Agents. The Administrative Agent
-------------------------------
may resign at any time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Administrative Agent. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a commercial bank organized under the laws of the United States
or of any State thereof and having a combined capital and surplus of at least
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$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent and upon the execution and filing
or recording of such financing statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Article XI shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement. A successor
Administrative Agent will notify the Borrower of its appointment promptly after
its appointment.
ARTICLE XII
MISCELLANEOUS
-------------
Section 12.01. Amendments, Etc. No amendment or waiver of any provision
---------------
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Required Lenders and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided that
--------
(a) no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following at any time:
(i) waive any of the conditions specified in Article IX or, in
the case of the initial Advance, Article VIII;
(ii) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, that
shall be required for the Lenders or any of them to take any action
hereunder;
(iii) release any Collateral, other than as contemplated by the
Loan Documents;
(iv) permit the creation, incurrence, assumption or existence of
any Lien on any item of Collateral to secure any obligations other
than obligations owing to the Lenders, the Collateral Agent and the
Administrative Agent under the Loan Documents and other than
Indebtedness owing to any other Person;
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(v) amend this (S)12.01;
(vi) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations;
(vii) reduce the principal of, or interest on, the Notes or any
fees or other amounts payable hereunder; or
(viii) postpone any date fixed for any payment of principal of,
or interest on, the Notes or any fees or other amounts payable
hereunder;
(b) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document; and
(c) no amendment, waiver or consent shall, unless in writing and
signed by the Collateral Agent in addition to the Lenders required above to
take such action, adversely affect the rights or duties of the Collateral
Agent under this Agreement or any other Loan Document.
Section 12.02. Notices, Etc. All notices and other communications
------------
provided for hereunder shall be in writing (including telegraphic, telecopy,
telex or cable communication) and mailed, telegraphed, telecopied, telexed,
cabled or delivered,
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(a) if to the Borrower, at:
Omnipoint MB Holdings, LLC
16 Wing Drive
Cedar Knolls, New Jersey 07927
Attn: Mr. Harry Plonskier
(fax no. 973-290-2539)
with copies to:
Omnipoint Corporation
3 Metro Center
Bethesda, MD 20814
Attn: Bradley E. Sparks
Piper & Marbury, L.L.P.
1200 19th Street, N.W.
Washington, DC 20036
Attn: Edwin Martin, Esq.
(fax no. (202) 861-6317)
(b) if to any Lender, at its Domestic Lending Office; and
(c) if to the Administrative Agent, at:
740 E. Campbell Road
Richardson, Texas 75081
Attn: Vice President-Finance
(fax no. (972) 583-1818)
with a copy at the same address to the
attention of the Vice President-General Counsel
(fax no. (972) 583-1839)
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telegraphed, telecopied, telexed or cabled, be effective
when deposited in the mails, delivered to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or delivered to the cable company,
respectively, except that notices and communications to the Administrative Agent
pursuant to Article II, III or XI shall not be effective until received by the
Administrative Agent.
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Section 12.03. No Waiver; Remedies. No failure on the part of any Lender
-------------------
or the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 12.04. Costs, Expenses. (a) (i) Except as specified in clause
---------------
(ii) or (iii) below, Ericsson will pay its own legal and other out-of-pocket
costs in connection with the drafting, negotiation and closing of this Agreement
and the other Loan Documents.
(ii) The Borrower will pay on demand all fees and reasonable expenses that
are incurred in connection with any necessary or desirable filings or
recordations by the Administrative Agent, the Collateral Agent or Ericsson in
connection with this Agreement, the other Loan Documents and the transactions
contemplated hereby and thereby, whether or not any such transactions are
consummated.
(iii) The Borrower will also pay on demand:
(A) all ongoing costs, including, without limitation, all reasonable
legal fees and charges, recording costs and related taxes or charges,
filing fees, costs and expenses of the Administrative Agent (if other than
Ericsson) and (except with respect to legal fees) the Lenders related to
(1) the enforcement of the Loan Documents, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally or otherwise, (2) the perfection,
protection or preservation of any of their respective rights or interests
under the Loan Documents or to or in the Collateral, (3) the administration
of this Agreement or any other Loan Document and (4) any amendments,
waivers or supplements related to this Agreement and the other Loan
Documents;
(B) to the extent not paid pursuant to clause (a)(ii) above, all out-
of-pocket costs and expenses of the Collateral Agent (including allocated
costs and reasonable expenses of in-house counsel and legal staff) in
connection with the preparation, execution, delivery, performance,
administration, enforcement, modification and amendment of this Agreement,
the Intercreditor Agreement, the Collateral Documents, the Guaranties
and/or any other Loan Document at any time, including without limitation
the reasonable fees and expenses of counsel (including reasonable allocated
costs and expenses of in-house counsel and legal staff) and the costs and
expenses incurred by the Collateral Agent in the course of performing its
duties and obligations as Collateral Agent, whether or not the transactions
contemplated hereby are contemplated;
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(C) all reasonable legal fees and expenses relating to the matters
described in clause (A) above incurred by Ericsson as Administrative Agent
or a Lender if a Default shall have occurred and be continuing under this
Agreement; and
(D) all reasonable legal fees and expenses relating to the matters
described in clause (A) above incurred by any Lender other than Ericsson or
an Affiliate thereof or for which such Lender would have an indemnification
obligation (whether or not contingent on non-payment thereof by the
Borrower) under this Agreement.
(b) If, at any time while the Second LIBOR Method is applicable, any
payment of principal of, or Conversion of, any LIBOR Advance is made by the
Borrower to or for the account of a Lender other than on the last day of the
Interest Period for such Advance, as a result of any repayment, prepayment
(other than pursuant to (S)3.02(c)) or Conversion thereof, acceleration of the
maturity of the Notes pursuant to (S)10.01 or for any other reason, the Borrower
shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender any loss, cost or expense (including loss of anticipated profit) that any
Lender may sustain or incur as a consequence of the making of any payment of a
LIBOR Loan on a day that is not the last day of the applicable Interest Period
with respect thereto.
(c) If the Borrower fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including fees and expenses of
counsel and indemnities, such amount may be paid on behalf of the Borrower by
the Administrative Agent or any Lender, in its sole discretion.
(d) The Borrower will indemnify each Lender, the Collateral Agent, the
Administrative Agent and their respective affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") and
-----------------
hold each Indemnified Party harmless from and against from and against any and
all claims, damages, losses, liabilities and expenses (including reasonable fees
and expenses of counsel and, with respect to the Collateral Agent, reasonable
allocated costs and expenses of in-house counsel and legal staff) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with
(i) the Notes, this Agreement and other Loan Documents, any of the
transactions contemplated herein or therein or the actual or proposed use
of the proceeds of the Advances, or
(ii) the actual or alleged presence of Materials of Environmental
Concern on any property of the Borrower or any environmental proceeding
relating in any way to the Borrower,
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except to the extent such claim, damage, loss, liability or expense is found in
a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful misconduct.
In the case of any investigation, litigation or other proceeding to which the
indemnity in this (S)12.04(d) applies, the indemnity shall be effective whether
or not such investigation, litigation or proceeding is brought by the Borrower,
its directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. The Borrower also shall
not to assert any claim against the Administrative Agent, the Collateral Agent,
any Lender, any of their Affiliates, or any of their respective directors,
officers, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this (S)12.04 shall survive the payment in full of principal and interest
hereunder and under the Notes.
Section 12.05. Right of Set-off. Upon (a) the occurrence and during the
----------------
continuance of any Event of Default and (b) the making of the request specified
by (S)10.01 to authorize the Administrative Agent to declare, or the
Administrative Agent's declaration of, the Notes to be due and payable pursuant
to the provisions of (S)10.01, each Lender and each of its Affiliates is
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the obligations of the Borrower
now or hereafter existing under this Agreement and the Note or Notes held by
such Lender, irrespective of whether such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application; provided that the failure to give such notice shall not
--------
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this (S)12.05 are in addition to other rights and
remedies (including other rights of set-off) that such Lender and its Affiliates
may have.
Section 12.06. Binding Effect. This Agreement shall become effective
--------------
when it shall have been executed by the Borrower and the Administrative Agent
and when the Administrative Agent shall have been notified by each Lender that
such Lender has executed it and thereafter shall be binding upon and inure to
the benefit of the Borrower, the Administrative Agent, each Lender, the
Collateral Agent and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lenders. Sections 12.04(a) and
(d), insofar as they relate to the Collateral Agent, and (S)7.15 also shall
inure to the benefit of each lender to the Borrower that at any time is a party
to the Intercreditor Agreement.
135
<PAGE>
Section 12.07. Assignments and Participations. (a) At any time after
------------------------------
August 31, 1998 (or, if by such date the Borrower shall have entered into a
commitment letter in customary form providing for the refinancing of the Tranche
X Commitments, Tranche X Advances, OPCS Commitments and OPCS Advances, December
31, 1998), each Lender may enter into discussions relating to assigning, and may
assign, to one or more banks or other entities (including any trust or other
Person in connection with a securitization or monetization of the Advances or
other indirect raising of capital) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment
or Commitments, the Advances owing to it and/or the Note or Notes held by it);
provided that
- --------
(i) each such assignment of any Commitments shall be of a uniform, and
not a varying, percentage of all rights and obligations under and in
respect of all Commitments;
(ii) except in the case of an assignment to a Person that, immediately
prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitment and/or Advances of the assigning Lender being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 and shall be an integral multiple of $1,000,000;
(iii) the parties to each such assignment shall
(A) execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment
and a processing and recordation fee of $2,500, and
(B) deliver a copy of such Assignment and Acceptance to the
Borrower at the time it delivers a copy to the Administrative Agent;
(iv) unless the Borrower shall have consented thereto, no such
assignment of undrawn commitments shall be made:
(A) except to a Person that shall have represented that it has a
combined capital and surplus in excess of $50,000,000, and
(B) except to a Person, other than a commercial bank or other
financial institution, that shall have represented that such Person is
not
engaged in, and does not have an Affiliate that is engaged in, the
business of providing PCS telecommunications services to the public;
and
136
<PAGE>
(v) in the case of any proposed assignment by Ericsson (in its
capacity as a Lender) of any portion of its rights and obligations
hereunder to a Person other than a Person at least 45% of the voting
stock of which is owned by Telefonaktiebolaget LM Ericsson and/or its
Subsidiaries, Ericsson shall give the Borrower at least two-month's written
notice of such proposed assignment.
A Lender may assign outstanding Advances without assigning undrawn Commitments,
and may assign undrawn Commitments without assigning outstanding Advances. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder and under the Intercreditor Agreement
have been assigned to it pursuant to such Assignment and Acceptance, have
the rights and obligations of a Lender hereunder and thereunder, and
(y) the Lender assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement and the Intercreditor 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 Lender shall cease to be a party hereto).
Ericsson shall consider in good faith any assignment of all or a portion of its
Commitments, the outstanding Advances owing to it and the Note or Notes held by
it to any Person that the Borrower may propose from time to time; provided that
--------
Ericsson shall have no obligation to enter into any such assignment.
(b) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished
pursuant hereto;
137
<PAGE>
(ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document
furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, the Intercreditor Agreement and each other Loan Document,
together with copies of the financial statements referred to in (S)5.04 and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance;
(iv) such assignee will, independently and without reliance upon the
Administrative Agent, such assigning Lender 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 this Agreement;
(v) such assignee appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto;
(vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement and
the Intercreditor Agreement are required to be performed by it as a Lender;
(vii) such assignee makes the representations set forth in subsection
(a)(iv) above; and
(viii) such assignee confirms that it is bound by the confidentiality
provisions set forth in (S)12.10.
(c) The Administrative Agent shall maintain at its address referred to in
(S)12.02 a copy of each Assignment and Acceptance delivered to and accepted by
it and a register for the recordation of the names and addresses of the Lenders
and the Commitments of, and principal amount of the Advances owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
--------
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as a Lender hereunder for all purposes of this
Agreement. 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.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
138
<PAGE>
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is substantially in the form of Exhibit C,
---------
(i) accept such Assignment and Acceptance,
(ii) record the information contained therein in the Register, and
(iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note or Notes a new Note to the order of such assignee in an
amount equal to the Advances and/or Commitments assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained Advances or
Commitments hereunder, a new Note to the order of the assigning Lender in an
amount equal to the Advances and/or Commitments retained by it hereunder. Such
new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be
substantially in the form of Exhibit C.
---------
(e) Each Lender may sell participations in or to all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitments, the Advances owing to it and the Note or Notes held by it);
provided that
- --------
(i) such Lender's obligations under this Agreement (including its
Commitments) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, and
(iv) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement.
(f) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this (S)12.07, disclose to the
assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee or
--------
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender.
139
<PAGE>
(g) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including the Advances owing to it and the Note or
Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
(h) The Borrower will cooperate with Ericsson, as the initial Lender, in
Ericsson's syndication of the Loans and Commitments hereunder.
Section 12.08. Governing Law. This Agreement and the Notes shall be
-------------
governed by, and construed in accordance with, the laws of the State of New
York.
Section 12.09. Execution in Counterparts. This Agreement may be executed
-------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
Section 12.10. Confidentiality. Neither the Administrative Agent nor any
---------------
Lender shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than
(a) to the Administrative Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective assignees and participants, and then only on a confidential
basis,
(b) as required by any law, rule or regulation or judicial process,
and
(c) as requested or required by any state, federal or foreign
authority or examiner regulating banks or banking.
The Administrative Agent and the Lenders shall not, and the Borrower shall
not, and shall cause its Subsidiaries and Affiliates not to, disclose the terms
of this Agreement, the other Loan Documents or the transactions contemplated
hereby to any Person without the consent of the other party hereto, except
(i) to any other lender that is a party to a Permitted Loan Agreement
(as defined in the Intercreditor Agreement) and that shall have agreed to
be bound by the provisions of this paragraph,
140
<PAGE>
(ii) to the extent that such terms or transactions become generally
available to the public,
(iii) to their respective Affiliates and their officers, directors,
employees, agents, advisors and (in the case of the Lenders) to actual or
prospective assignees and participants, in each case to the extent that the
Administrative Agent, any Lender or the Borrower deems necessary or
appropriate,
(iv) as required by any law, rule or regulation or judicial process,
and
(v) as requested by any state, federal or foreign regulatory
authority.
A reasonable period of time prior to making any disclosure with respect to such
terms and transactions that is permitted under clause (iv) or (v) of the
preceding sentence, the party proposing, or whose Affiliate is proposing, to
make such disclosure will consult with the other party concerning the need for
and scope of any such disclosure.
Section 12.11. Consent to Jurisdiction. The Borrower irrevocably:
-----------------------
(a) submits to the jurisdiction of any New York state or federal court
sitting in New York City and any appellate court from any thereof in any
action or proceeding arising out of or relating to any Loan Document;
(b) agrees that all claims in respect of such action or proceeding may
be heard and determined in such New York state or in such federal court;
(c) waives, to the fullest extent that it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding;
(d) consents to the service of any and all process in any such action
or proceeding by the mailing of copies of such process to such Borrower at
its address specified in (S)12.02; and
(e) agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
Nothing in this (S)12.11 shall affect the right of the Administrative Agent or
any Lender to serve legal process in any other manner permitted by law or affect
the right of the Administrative Agent or any Lender to bring any action or
proceeding against any Borrower or its property in the courts of other
jurisdictions.
141
<PAGE>
Section 12.12. Matters Relating to the Collateral Agent. (a) The
----------------------------------------
Borrower will pay the Collateral Agent a fee in an amount, computed as provided
and payable at the times separately agreed to by the Collateral Agent and the
Borrower. In addition, the Borrower will pay on demand all costs and expenses
of the Collateral Agent (including allocated costs and reasonable expenses of
in-house counsel and legal staff) in connection with the preparation, execution,
delivery, performance, administration, enforcement, modification and amendment
of this Intercreditor Agreement, the Borrower Security Agreement, the Parent
Pledge Agreement, the Mortgages and/or any other Loan Document at any time,
including without limitation the reasonable fees and expenses of counsel
(including reasonable allocated costs and expenses of in-house counsel and legal
staff) and the costs and expenses incurred by the Collateral Agent in the course
of performing its duties and obligations as Collateral Agent.
Section 12.13. Amendments, Etc., to Intercreditor Agreement. Neither the
--------------------------------------------
Administrative Agent nor the Lenders shall consent to any amendment or
modification of, supplement to, replacement of or substitution for the
Intercreditor Agreement unless either
(a) the Borrower shall have consented thereto in writing, or
(b) at the time at which such amendment, modification or waiver is
entered into a Default, or any event that, with the passage of time or
giving of notice or both, would constitute an event of default under any
other Permitted Loan Agreement, shall have occurred and be continuing.
Section 12.14. Other Agreements. Ericsson shall present to the Board of
----------------
Directors of LM Ericsson Telefonaktiebolaget, at the next meeting of such Board
of Directors after the date of this Amendment and Restatement, a proposal to
increase the Tranche X Maximum Commitments from $202,500,000 to $217,500,000.
The obligations set forth in this (S)12.14 shall survive any assignment by
Ericsson of any Advances or Commitments.
Section 12.15. Waiver of Jury Trial. Each of the Borrower, the
--------------------
Administrative Agent and the Lenders irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to any of the Loan Documents, the
Advances or the actions of the Administrative Agent or any Lender in the
negotiation, administration, performance or enforcement thereof.
142
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
OMNIPOINT MB HOLDINGS, LLC
By
---------------------------------------
Title:
Tranche X Commitment Percentage: 100% ERICSSON INC., as Administrative
Tranche Y Commitment Percentage: 100% Agent and a Lender
Domestic Lending Office and By
- --------------------------- --------------------------------------
LIBOR Lending Office: Title:
--------------------
740 East Campbell Road
Richardson, Texas 75081
Attn: Vice President-Finance
(fax no. (972) 583-1818)
A copy of any notice delivered pursuant to
(S)12.02 also should be delivered to the
address set forth above to the attention of
the Vice President-General Counsel
(fax no. (972) 583-1839)
<PAGE>
SCHEDULE 6.15(A)
REVENUE
-------
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING REVENUE
- --------------------- -------
<S> <C>
June 30, 1998 $ 100,000
September 30, 1998 800,000
December 31, 1998 1,600,000
March 31, 1999 3,400,000
June 30, 1999 5,100,000
September 30, 1999 6,800,000
December 31, 1999 8,600,000
March 31, 2000 11,800,000
June 30, 2000 15,000,000
September 30, 2000 18,200,000
December 31, 2000 21,400,000
March 31, 2001 25,500,000
June 30, 2001 and thereafter 29,600,000
</TABLE>
<PAGE>
SCHEDULE 6.15(C)
LEVERAGE RATIO (ADJUSTED EBITDA)
-------------- -----------------
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING LEVERAGE RATIO
--------------------- --------------
<S> <C>
December 31, 2000 12.0
March 31, 2001 12.0
June 30, 2001 10.0
September 30, 2001 8.0
December 31, 2001 6.0
March 31, 2002 6.0
June 30, 2002 6.0
September 30, 2002 4.0
December 31, 2002 4.0
</TABLE>
<PAGE>
SCHEDULE 6.15(D)
LEVERAGE RATIO (EBITDA)
-------------- --------
<TABLE>
<CAPTION>
FISCAL QUARTER ENDING LEVERAGE RATIO
- --------------------- --------------
<S> <C>
December 31, 2002 8.0
March 31, 2003 8.0
June 30, 2003 8.0
September 30, 2003 6.0
December 31, 2003 4.0
March 31, 2004 4.0
June 30, 2004 4.0
September 30, 2004 4.0
December 31, 2004 and thereafter 3.0
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE BALANCE
SHEET AND INCOME STATEMENT OF OMNIPOINT CORPORATION AS OF AND FOR THE THREE
MONTHS ENDED JUNE 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<CASH> 235,700
<SECURITIES> 45,848
<RECEIVABLES> 50,010
<ALLOWANCES> 11,816
<INVENTORY> 26,786
<CURRENT-ASSETS> 392,810
<PP&E> 954,197
<DEPRECIATION> (86,574)
<TOTAL-ASSETS> 1,984,355
<CURRENT-LIABILITIES> 311,740
<BONDS> 478,471
0
265,732
<COMMON> 527
<OTHER-SE> (497,962)
<TOTAL-LIABILITY-AND-EQUITY> 1,984,355
<SALES> 73,634
<TOTAL-REVENUES> 76,257
<CGS> 113,369
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 92,232
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> (294,019)
<DISCONTINUED> 0
<EXTRAORDINARY> (11,115)
<CHANGES> 0
<NET-INCOME> (305,134)
<EPS-BASIC> (5.88)
<EPS-DILUTED> (5.88)
</TABLE>
