UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
[x] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1996
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OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from to
333-06609-01
Commission file number 333-06609-02
-------------------------------------------------
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 48-1165245
DELAWARE 43-1746537
- --------------------------------------------- ----------------------
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Nos.)
4900 Main Street, Kansas City, Missouri 64112
- --------------------------------------------- ----------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (816) 559-1000
----------------------------
Securities registered pursuant to Section 12(b) of the Act: None
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 re-
quired to file such reports), and (2) has been subject to such filing require-
ments for the past 90 days. Yes X No
------------ --------------
Indicate by a check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
As of March 14, 1997 the Sprint Spectrum Finance Corporation had Common Stock
outstanding of 100 shares.
Documents Incorporated by Reference: None
<PAGE>
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM FINANCE CORPORATION
1996 FORM 10-K/A ANNUAL REPORT
Table of Contents
Page
PART IV
Item 14. Exhibits, Financial Statement Schedule and Reports on
Form 8-K................................................. 3
<PAGE>
Part IV
Item 14. Exhibits, Financial Statement Schedule, and Reports on Form 8-K
(a) 1. See "Index to Financial Statements" set forth on page F-1.
2. See "Index to Financial Statements" set forth on page F-1.
3. The following Exhibits are part of this report:
EXHIBITS
3.1 Certificate of Limited Partnership of Sprint Spectrum L.P. (in-
corporated by reference to Registrant's Form S-1 Registration
Statement, Registration No. 333-00609, filed June 21, 1996).
3.2 Agreement of Limited Partnership of MajorCoSub, L.P. (renamed
Sprint Spectrum L.P.) dated as of March 28, 1995, among MajorCo,
L.P. and MinorCo, L.P. (incorporated by reference to Regi-
strant's Form S-1 Registration Statement, Registration No.
333-00609, filed June 21, 1996).
3.3 Amended and Restated Agreement of Limited Partnership of Major-
Co, L.P. (renamed Sprint Spectrum Holding Company, L.P.) dated
January 31, 1996, among Sprint Spectrum, L.P. (renamed Sprint
Enterprises, L.P.), TCI Network Services, Comcast Telephony Ser-
vices and Cox Telephony Partnership (incorporated by reference
to Registrant's Form S-1 Registration Statement, Registration
No. 333-06609, filed on June 21, 1996).
4.1 Senior Note Indenture, dated August 23, 1996, between Sprint
Spectrum L. P., Sprint Spectrum Finance Corporation, and The
Bank of New York, as Trustee (incorporated by reference to
Registrant's Form 10-Q filed November 12, 1996).
4.2 Form of Senior Note (included in Exhibit 4.1).
4.3 Senior Discount Note Indenture dated August 23, 1996, between
Sprint Spectrum L.P., Sprint Spectrum Finance Corporation, and
The Bank of New York, as Trustee (incorporated by reference to
Registrant's Form 10-Q filed November 12, 1996).
4.4 Form of Senior Discount Note (included in Exhibit 4.3).
10.1 Procurement and Services Contract, dated as of January 31, 1996,
between MajorCo, L.P. and Northern Telecom Inc. (incorporated by
reference to Form S-1 Registration Statement, Registration No.
333-06609, filed on July 30, 1996).
10.2 Assignment, Assumption and Amendment No. 1, dated as of June 26,
1996, to Procurement and Services Contract, dated as of January
31, 1996, between MajorCo, L.P. and Northern Telecom, Inc. (in-
corporated by reference to Form S-1 Registration Statement, Reg-
istration No. 333-06609, filed on July 30, 1996).
10.3 Procurement and Services Contract, dated as of January 31, 1996,
between MajorCo, L.P. and AT&T Corp. (incorporated by reference
to Form S-1 Registration Statement, Registration No. 333-06609,
filed on July 30, 1996).
10.4 Assignment, Assumption and Amendment No. 1, dated as of June 21,
1996, to Procurement and Services Agreement, dated as of January
31, 1996, between MajorCo, L.P. and AT&T Corp. (incorporated by
reference to Form S-1 Registration Statement, Registration No.
333-06609, filed on July 30, 1996).
10.5 Amendment No. 2 to the Lucent Technologies/Sprint Spectrum Pro-
curement and Services Contract, dated as of July 15, 1996 be-
tween Sprint Spectrum Equipment Company, L.P. and Lucent Tech-
nologies, Inc. (incorporated by reference to Registrant's Form
10-Q filed November 12, 1996).
10.6 Amended and Restated Procurement and Services Contract, dated as
of October 9, 1996 between Sprint Spectrum Equipment Company,
L.P. and Lucent Technologies Inc. The omitted portions indicated
by brackets have been separately filed with the Securities and
Exchange Commission pursuant to a request for confidential
treatment under Rule 24-b of the Securities Exchange Act of
1934, as amended.
3
<PAGE>
10.7 Amended and Restated Sprint Trademark License Agreement, dated
as of January 31, 1996, between Sprint Communications Company,
L.P. and MajorCo, L.P. (incorporated by reference to Regi-
strant's Form S-1 Registration Statement, Registration No.
333-06609, filed on July 30, 1996).
10.8 First Amendment to Amended and Restated Trademark License Agree-
ment, dated as of September 26, 1996, between Sprint Communica-
tions Company, L.P. and Sprint Spectrum Holding Company, L.P.
(incorporated by reference to Registrant's Form 10-Q filed Nov-
ember 12, 1996).
10.9 Assignment and Acceptance Agreement (regarding the Amended and
Restated Trademark License Agreement, as amended) dated as of
September 30, 1996 between Sprint Spectrum Holding Company, L.P.
and Sprint Spectrum L.P. (incorporated by reference to
Registrant's Form 10-Q filed November 12, 1996).
10.10 Amended and Restated Assignment and Assumption Agreement
(Leases), dated as of July 1, 1996, between Sprint Spectrum
Holding Company, L.P., Sprint Spectrum L.P. and Sprint Spectrum
Realty Company, L.P. (incorporated by reference to Registrant's
Form 10-Q filed November 12, 1996).
10.11 Property Use Agreement, dated as of July 1, 1996, between Sprint
Spectrum Realty Company, L.P. and Sprint Spectrum L.P. (in-
corporated by reference to Registrant's Form S-1 Registration
Statement, Registration No. 333-06609, filed on July 30, 1996).
10.12 Assignment and Assumption, dated as of July 1, 1996, between
Sprint Spectrum Holding Company, L.P., Sprint Spectrum L.P. and
Sprint Spectrum Equipment Company, L.P. (incorporated by refer-
ence to Registrant's Form S-1 Registration Statement, Registra-
tion No. 333-06609, filed on July 30, 1996).
10.13 Equipment Lease Agreement, dated as of July 1, 1996, between
Sprint Spectrum Equipment Company, L.P. and Sprint Spectrum L.P.
(incorporated by reference to Registrant's Form S-1 Registration
Statement, Registration No. 333-06609, filed on July 30, 1996).
10.14 Employment Agreement, dated as of July 29, 1996, between Sprint
Spectrum Holding Company, L.P. and Andrew Sukawaty (incorpor-
ated by reference to Registrant's Form S-1 Registration State-
ment, Registration No. 333-06609, filed on August 12, 1996).
10.15 Employment Agreement, dated as of September 29, 1995, between
MajorCo, L.P. and Joseph M. Gensheimer (incorporated by refer-
ence to Registrant's Form S-1 Registration Statement, Registra-
tion No. 333-06609, filed on July 30, 1996).
10.16 Registration Rights Agreement, dated as of August 23, 1996 among
Sprint Spectrum L.P., Sprint Spectrum Finance Corporation and
Sprint Corporation (incorporated by reference to Registrant's
Form 10-Q filed November 12, 1996).
10.17 Amended and Restated Capital Contribution Agreement dated as of
October 2, 1996, among Sprint Corporation, Tele-Communications,
Inc., Comcast Corporation, Cox Communications, Inc. and Sprint
4
<PAGE>
Spectrum L.P. (incorporated by reference to Registrant's Form
10-Q filed November 12, 1996).
10.18 Paging Sales Agency Agreement, dated as if January 17, 1996, be-
tween MajorCo, L.P. and Sprint Communications Company, L.P. (in-
corporated by reference to Registrant's Form S-1 Registration
Statement, Registration No. 333-06609, filed on July 30, 1996).
10.19 Second Amended and Restated Limited Partnership Agreement dated
as of January 9, 1995 among American Personal Communications,
Inc., WirelessCo, L.P. and The Washington Post Company (in-
corporated by reference to Registrant's Form S-1 Registration
Statement, Registration No. 333-06609, filed on July 30, 1996).
10.20 WirelessCo Affiliation Agreement, dated as of January 9, 1995
between American PCS, L.P., and WirelessCo, L.P. (incorporated
by reference to Registrant's Form S-1 Registration Statement,
Registration No. 333-06609, filed on July 30, 1996).
10.21 Letter Agreement, dated as of August 31, 1996, between American
PCS, L.P., American Personal Communications Inc., WirelessCo,
L.P., Sprint Spectrum L.P. and Sprint Spectrum Holding Company,
L.P. (incorporated by reference to Registrant's Form 10-Q, filed
on September 26, 1996).
10.22 Purchase and Supply Agreement dated as of June 21, 1996, between
Sprint Spectrum L.P., QUALCOMM Personal Electronics, QUALCOMM
Incorporated and Sony Electronics Inc. (incorporated by
reference to Registrant's Form S-1 Registration Statement,
Registration No. 333-06609, filed on August 12, 1996).
10.23 Amendment No. 1, dated as of October 24, 1996, to the Purchase
and Supply Agreement dated as of June 21, 1996, between Sprint
Spectrum L.P., QUALCOMM Personal Electronics, QUALCOMM
Incorporated and Sony Electronics Inc. The omitted portions
indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for
confidential treatment under Rule 24-b of the Securities
Exchange Act of 1934, as amended.
10.24 Customer Account and Billing System Agreement, dated as of
February 26, 1996, between Sprint Spectrum L.P. and Cincinnati
Bell Information Systems Inc. (incorporated by reference to Reg-
istrant's Form S-1 Registration Statement, Registration No.
333-06609, filed on July 30, 1996).
10.25 Subscriber Unit Equipment Purchase and Supply Agreement, dated
as of September 17, 1996, between Sprint Spectrum L.P. and Sam-
sung Electronics Co., Ltd. (incorporated by reference to Regi-
strant's Form 10-Q filed November 12, 1996).
10.26 Letter agreement dated as of September 17, 1996 from Sprint
Spectrum L.P. to Samsung Electronics Co., Ltd. and Samsung Elec-
tronics Co., Ltd./Samsung Telecommunications America, Inc. (in-
corporated by reference to Registrant's Form 10-Q filed November
12, 1996).
10.27 Master Agreement, dated as of September 1996, between Sprint
Communications Company, L.P., Sprint Spectrum L.P., Sprint Uni-
ted Management Company and Tandy Corporation, a Delaware corp-
5
<PAGE>
oration acting by and through its RadioShack division
(incorporated by reference to Registrant's Form 10-Q filed
November 12, 1996).
10.28 Credit Agreement, dated as of October 2, 1996, between Sprint
Spectrum L.P. and Northern Telecom Inc. The omitted portions
indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for
confidential treatment under Rule 24-b of the Securities
Exchange Act of 1934, as amended.
10.29 Credit Agreement, dated as of October 2, 1996, between Sprint
Spectrum L.P. and Lucent Technologies Inc. The omitted portions
indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for
confidential treatment under Rule 24-b of the Securities
Exchange Act of 1934, as amended.
*10.30 Credit Agreement, dated as of October 2, 1996, among Sprint
Spectrum L.P., the several banks and other financial
institutions and entities from time to time parties to the
Credit Agreement and The Chase Manhattan Bank, as administrative
agent for the lenders. The omitted portions indicated by
brackets have been separately filed with the Securities and
Exchange Commission pursuant to a request for confidential
treatment under Rule 24-b of the Securities Exchange Act of
1934, as amended.
10.31 Trust Agreement, dated as of October 2, 1996 among Sprint Spec-
trum L.P., First Union National Bank and Kenneth D. Benton.
10.32 Pledge Agreement, dated as of October 2,1996, made by Sprint
Spectrum L.P. and MinorCo, L.P. in favor
of the Trustees under the Trust Agreement.
10.33 Borrower Security Agreement, dated as of October 2. 1996, made
by Sprint Spectrum L.P. and MinorCo, L.P. in favor of the
Trustees under the Trust Agreement.
10.34 Subsidiary Security Agreement, dated as of October 2, 1996, made
by Sprint Spectrum L.P. and MinorCo, L.P. in favor of the
Trustees under the Trust Agreement.
10.35 Guarantee, dated as of October 2, 1996, by WirelessCo, L.P. in
favor of the Trustees under the Trust Agreement.
10.36 Guarantee, dated as of October 2, 1996, by Sprint Spectrum
Equipment Company, L.P. in favor of the Trustees under the Trust
Agreement.
10.37 Guarantee, dated as of October 2, 1996, by Sprint Spectrum Real-
ty Company, L.P. in favor of the Trustees under the Trust Agree-
ment.
12 Statements re: computation of ratios
21 Subsidiaries of Registrant
27 Financial Data Schedule
(b) No reports on Form 8-K were filed during the fiscal year ended December 31,
1996.
* Filed herewith.
6
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SPRINT SPECTRUM L.P.
(Registrant)
By /s/ Andrew Sukawaty
Andrew Sukawaty
President and Chief Executive
Officer
Date: February 20, 1998
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities indicated on the 20th day of February, 1998.
/s/ Andrew Sukawaty
Andrew Sukawaty
President and Chief Executive
Officer
/s/ Robert M. Neumeister, Jr.
Robert M. Neumeister, Jr.
Chief Financial Officer
/s/ John W. Meyer
John W. Meyer
Vice President and Controller
Principal Accounting Officer
/s/ Ronald T. LeMay
Ronald T. LeMay
Sprint Spectrum Holding Company
Partnership Board Representative
/s/ James O. Robbins
James O. Robbins
Sprint Spectrum Holding Company
Partnership Board Representative
/s/ Lawrence S. Smith
Lawrence S. Smith
Sprint Spectrum Holding Company
Partnership Board Representative
/s/ Gerald W. Gaines
Gerald W. Gaines
Sprint Spectrum Holding Company
Board Representative
7
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
SPRINT SPECTRUM
FINANCE CORPORATION
(Registrant)
/s/ Andrew Sukawaty
Andrew Sukawaty
President
Date: February 20, 1998
Pursuant to the requirements of the Securities Exchange Act of 1934, this report
has been signed below by the following persons on behalf of the registrant and
in the capacities indicated on the 20th day of February, 1998.
/s/ Andrew Sukawaty
Andrew Sukawaty
President and Director
/s/ Robert M. Neumeister, Jr.
Robert M. Neumeister, Jr.
Vice President, Treasurer and Director
8
Exhibit 10.30
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
CREDIT AGREEMENT, dated as of October 2, 1996, among SPRINT
SPECTRUM L.P., a limited partnership organized under the laws of the State of
Delaware (the "Borrower"), the several banks and other financial institutions
and entities from time to time parties to this Agreement (the "Lenders") and THE
CHASE MANHATTAN BANK, a New York banking corporation, as administrative agent
for the Lenders hereunder.
W I T N E S S E T H :
WHEREAS, the Borrower intends to develop and operate a
national wireless telecommunications network;
WHEREAS, the Borrower has requested the Lenders to make
available credit facilities to finance working capital needs, subscriber
acquisition costs, capital expenditures and other general partnership purposes
of the Borrower and its Restricted Subsidiaries; and
WHEREAS, the Lenders are willing to make the requested credit
facilities available on and subject to the terms and conditions set forth in
this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereto hereby agree as follows:
<PAGE>
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum equal to the greater of
(a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
ABR due to a change in the Prime Rate or the Federal Funds Effective
Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate or the Federal Funds Effective
Rate, respectively.
"ABR Loans": Loans bearing interest based upon the ABR.
"Additional Collateral": as defined in the Trust Agreement.
"Additional Guarantee": as defined in the Trust Agreement.
"Additional Security Document": as defined in the Trust
Agreement.
"Adjusted EBITDA": for any fiscal period, the sum of (a)
EBITDA for such period plus (b) the aggregate amount deducted in
determining Net Income or Net Loss for such period in respect of sales,
marketing and advertising expenses and consumer-related equipment
subsidy expenses.
"Adjustment Date": (a) with respect to any adjustment in the
Pricing Level resulting from a change in the Moody's Bond Rating or the
S&P Bond Rating, as the case may be, the date on which such change is
publicly announced by Moody's or S&P and (b) with respect to any
adjustment in the Pricing Level resulting from the Borrower's financial
results or condition as shown on the Borrower's financial statements
delivered pursuant to subsection 5.1(a) or (b), as the case may be, for
any fiscal period, the first Business Day following the date of receipt
by the Administrative Agent of such financial statements.
"Administrative Agent": Chase, as administrative agent for
the Lenders under this Agreement, or any successor thereto appointed
pursuant to subsection 8.9 to act as the administrative agent for the
Lenders under this Agreement.
"Affiliate": as to any Person, any other Person (other than,
in the case of the Borrower and any Restricted Subsidiary, any
Restricted Subsidiary) which, directly or indirectly, is in control of,
is controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, to direct or cause the direction of the
management and policies of such Person, whether through the ownership
of voting interests, by contract or otherwise.
"Aggregate Commitment": with respect to any Lender, the
aggregate amount of such Lender's Term Loan Commitment and Revolving
Credit Commitment.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Annualized Adjusted EBITDA": for the period ending on the
last day of any fiscal quarter, the product of (a) Adjusted EBITDA for
the two consecutive fiscal quarters ending on such last day,
multiplied by (b) two.
"Annualized EBITDA": for the period ending on the last day of
any fiscal quarter, the product of (a) EBITDA for the two consecutive
fiscal quarters ending on such last day, multiplied by (b) two.
"APC": American PCS, L.P., a Delaware limited partnership.
"Applicable Margin": with respect to each Type of Term Loan
and Revolving Credit Loan, for any day, the rate per annum set forth
below, under the column applicable to such Type, opposite the Pricing
Level in effect on such day:
------------------ ---------------------- ---------------------------
Applicable Margin - Applicable Margin -
Term Loans Revolving Credit Loans
------------------ ---------------------- ---------------------------
Pricing ABR Eurodollar ABR Eurodollar
Level Loans Loans Loans Loans
------------------ -------- ------------ --------- ------------------
Level I Pricing 1.50% 2.50% 1.500% 2.500%
------------------ -------- ------------ --------- ------------------
Level II Pricing [
------------------ -------- ------------ --------- ------------------
Level III Pricing
------------------ -------- ------------ --------- ------------------
Level IV Pricing
------------------ -------- ------------ --------- ------------------
Level V Pricing
------------------ -------- ------------ --------- ------------------
Level VI Pricing
------------------ -------- ------------ --------- ------------------
Level VII Pricing
------------------ -------- ------------ --------- ------------------
Level VIII Pricing
------------------ -------- ------------ --------- ------------------
Level IX Pricing ]*
------------------ -------- ------------ --------- ------------------
Level X Pricing 1.00 2.00 0 0.400
------------------ -------- ------------ ---------- -----------------
* The brackets indicate information for which confidential treatment has been
requested from the Commission pursuant to Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.
"Asset Sale": any sale, transfer or other disposition or
series of related sales, transfers or other dispositions (excluding any
sale and leaseback transaction pursuant to a Financing Lease) by the
Borrower or any Restricted Subsidiary of any property or assets of the
Borrower or such Restricted Subsidiary (including property subject to
any Lien under any Security Document) to a Person other than the
Borrower or any Restricted Subsidiary; provided that any Asset Swap
permitted under subsection 6.6(e) shall be deemed an Asset Sale only to
the extent provided for in said subsection.
"Asset Sale Proceeds Sub-Account": as defined in the Trust
Agreement.
"Asset Swap": any exchange, with any other Person, of assets
owned by the Borrower and/or any Restricted Subsidiary comprising one
or more Systems, for assets comprising one or more other Systems owned
by such other Person.
"Assignee": as defined in subsection 9.6(c).
"Available Commitment": as to any Lender at any time, an
amount equal to the excess, if any, of (a) the amount of such Lender's
Aggregate Commitment over (b) the aggregate principal amount of all
Loans made by such Lender then outstanding.
"Bank Credit Facility": as defined in the Trust Agreement.
"Benefitted Lender": as defined in subsection 9.7(a).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a notice pur-
suant to subsection 2.2 as a date on which the Borrower requests the
Lenders to make Loans hereunder.
"BTA": a Basic Trading Area, as defined in 47 C.F.R. ss.
24.202.
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or
required by law to close; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on
which banks are not open for dealings in dollar deposits in the London
interbank market.
"Capital Contribution Agreement": the Amended and Restated
Capital Contribution Agreement, dated as of October 2, 1996, among the
Parents and the Borrower, as amended, supplemented or otherwise
modified from time to time in accordance with subsection 6.12.
"Capital Expenditures": for any fiscal period, all
expenditures incurred by the Borrower and its Restricted Subsidiaries
during such period (a) for the purpose of acquiring, constructing,
expanding or improving fixed assets, real property or equipment or (b)
constituting systems and development expenditures related to the
build-out of the Borrower's national wireless telecommunications
network, all as calculated in accordance with GAAP; provided that
expenditures related to the acquisition of Licenses, capitalized
interest and Investments permitted by subsection 6.8 shall not be
considered to be Capital Expenditures.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person
(other than a corporation) and any and all warrants, rights or options
to purchase or subscribe for any of the foregoing, or any warrants,
rights or options to purchase or subscribe for any such warrants,
rights or options.
"Cash Equivalents": (a) securities with maturities of one year
or less from the date of acquisition issued or fully guaranteed or
insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of
one year or less from the date of acquisition and overnight bank
deposits of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any commercial bank
satisfying the requirements of clause (b) of this definition, having a
term of not more than 30 days with respect to securities issued or
fully guaranteed or insured by the United States Government, (d)
commercial paper of a domestic issuer rated at least A-1 by S&P or P-1
by Moody's, (e) securities with maturities of one year or less from the
date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States or by any political
subdivision or taxing authority of any such state, commonwealth or
territory, the securities of which state, commonwealth, territory,
political subdivision or taxing authority (as the case may be) are
rated at least A by S&P or A by Moody's, (f) securities with maturities
of one year or less from the date of acquisition backed by standby
letters of credit issued by any commercial bank satisfying the
requirements of clause (b) of this definition or (g) shares of open end
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this
definition.
"Change in Control": the occurrence of (a) prior to the time
at which the Borrower has first attained Investment Grade Status, a
reduction to less than $500,000,000 of the sum of (i) the amount of
Contributed Capital held, directly or indirectly, by Sprint Corporation
and (ii) the portion of the then Committed Capital for which Sprint
Corporation is obligated, (b) prior to the Public Offering Date, a
reduction of the percentage of the aggregate economic or voting equity
ownership of the Borrower that is owned directly or indirectly by
Sprint Corporation to less than 25% or (c) at any time, a reduction of
the percentage of the aggregate economic or voting equity ownership of
the Borrower that is owned directly or indirectly by the Parents to a
percentage not greater than 50%.
"Chase": The Chase Manhattan Bank, a New York banking corpor-
ation.
"Closing Date": the date on which the conditions precedent
set forth in subsection 4.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": as defined in the Trust Agreement.
"Commitment Fee Rate": for any day, the rate per annum set
forth below opposite the Pricing Level in effect on such day:
--------------------------- ------------------------------
Pricing Level Commitment Fee Rate
--------------------------- ------------------------------
Level I Pricing [
--------------------------- ------------------------------
Level II Pricing
--------------------------- ------------------------------
Level III Pricing
--------------------------- ------------------------------
Level IV Pricing
--------------------------- ------------------------------
Level V Pricing
--------------------------- ------------------------------
Level VI Pricing
--------------------------- ------------------------------
Level VII Pricing
--------------------------- ------------------------------
Level VIII Pricing
--------------------------- ------------------------------
Level IX Pricing
--------------------------- ------------------------------
Level X Pricing ]
--------------------------- ------------------------------
"Commitments": the Revolving Credit Commitments and the Term
Loan Commitments.
"Committed Capital": as to any Parent at any time, the aggre-
gate amount of cash contributions then committed and available to be
made by such Parent or its Affiliates pursuant to the Capital Contri-
bution Agreement.
"Commonly Controlled Entity": an entity, whether or not in-
corporated, which is part of a group which includes the Borrower and
which is treated as a single employer under Section 414(b) or (c) of
the Code.
"Communications Act": the Communications Act of 1934, and an
similar or successor federal statute, and the rules and regulations of
the FCC thereunder, all as amended and as the same may be in effect
from time to time.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Contributed Capital": at any time, the aggregate amount which
shall theretofore have been received by the Borrower as a contribution
to its capital or as consideration for the issuance of partnership
interests in the Borrower; Contributed Capital shall in any event
exclude the proceeds of any Specified Affiliate Debt and any Restricted
Equity.
"Corporate Trustee": as defined in the definition of Trust
Agreement.
"Covered Pops": at any time, the aggregate number of Pops
within each geographic area for which facilities owned by the Borrower
and its Restricted Subsidiaries that provide service to such geographic
area have achieved "substantial completion" pursuant to the terms of
the applicable Vendor Procurement Contract or, if not constructed under
a Vendor Procurement Contract, have achieved at least the equivalent
degree of completion.
"Currency Rate Agreement": any foreign currency exchange
agreement or other exchange rate hedging arrangement to or under which
the Borrower or any Restricted Subsidiary (other than a Special Purpose
Subsidiary) is a party or a beneficiary that is designed and entered
into to protect against fluctuations in currency exchange rates and not
for speculative purposes.
"Default": any of the events specified in Section 7, whether
or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Direct-Lien Assets": assets of the Borrower or any Restricted
Subsidiary constituting any of the following: accounts, patents,
trademarks, the rights of the Borrower under the Capital Contribution
Agreement, other general intangibles and other types of Personal
Property Assets on which, under applicable law, a consensual Lien can
be perfected by a limited number of Uniform Commercial Code and/or
Federal filings naming the Borrower or such Restricted Subsidiary, as
the case may be, as debtor or by the delivery of a pledged instrument
to the party secured by such Lien
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"EBITDA": for any fiscal period, the Net Income or Net Loss,
as the case may be, for such fiscal period, after restoring thereto
amounts deducted for, without duplication, (a) Interest Expense, (b)
income tax expense, (c) depreciation and amortization and (d) other
non-cash charges, provided, however, that there shall in any event be
excluded from EBITDA any portion thereof attributable to the income of
any Person (other than a Restricted Subsidiary) in which the Borrower
or any Restricted Subsidiary has any ownership interest except to the
extent that any such income has been actually received by the Borrower
or such Restricted Subsidiary in the form of cash dividends or similar
distributions.
"Environmental Laws": any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including common law) regulating, relating to or
imposing liability or standards of conduct concerning pollution or
protection of the environment or human health or safety as relating to
the environment, as now or may at any time hereafter be in effect.
"Environmental Permit": any permit, approval, authorization,
certificate, license, variance, filing or permission required by or
from any Governmental Authority pursuant to any Environmental Law.
"EquipmentCo": Sprint Spectrum Equipment Company, L.P., a
Delaware limited partnership.
"ERISA": the Employee Retirement Income Security Act of 1974
as amended from time to time.
"Eurodollar Loans": Loans bearing interest based upon the
Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate of interest
determined on the basis of the rate for deposits in Dollars for a
period equal to such Interest Period commencing on the first day of
such Interest Period appearing on Page 3750 of the Telerate screen as
of 11:00 A.M., London time, two Business Days prior to the beginning of
such Interest Period. In the event that such rate does not appear on
Page 3750 of the Telerate screen (or otherwise on such screen), the
"Eurodollar Rate" shall be determined by reference to such other
publicly available service for displaying eurodollar rates as may be
agreed upon by the Administrative Agent and the Borrower or, in the
absence of such agreement, the "Eurodollar Rate" shall instead be the
rate per annum equal to the average (rounded to the nearest 1/100th of
1%) of the respective rates notified to the Administrative Agent by
each of the Reference Lenders as the rate at which such Reference
Lender is offered Dollar deposits in the amount of $10,000,000 at or
about 10:00 A.M., New York City time, two Business Days prior to the
beginning of such Interest Period in the interbank eurodollar market
where the eurodollar and foreign currency and exchange operations in
respect of its Eurodollar Loans are then being conducted for delivery
on the first day of such Interest Period for the number of days
comprised therein.
"Event of Default": any of the events specified in Section 7,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Excess Cash Flow": for any period, the sum of (a) Net Income
(or Net Loss) for such period plus (b) the aggregate amount of all
non-cash charges deducted in arriving at such Net Income (or Net Loss)
minus (c) the aggregate amount of all scheduled repayments and
voluntary and mandatory prepayments of Indebtedness for borrowed money
of the Borrower and its Restricted Subsidiaries on a consolidated basis
during such period (but only to the extent, in the case of prepayments
of Indebtedness outstanding under a committed revolving credit
facility, that the commitments to extent credit under such committed
revolving credit facility are permanently reduced in connection
therewith) minus (d) the aggregate amount of distributions made by the
Borrower during such period pursuant to subsections 6.7(i) (to the
extent the tax liabilities related to such distributions are not
deducted in arriving at such Net Income (or Net Loss)) and 6.7(ii)
minus (e) the aggregate amount of all cash Capital Expenditures
incurred during such period minus (f) any net increases in Working
Capital during such period plus (f) any net decreases in Working
Capital during such period plus (g) (to the extent excluded in the
calculation of such Net Income (or Net Loss)) the sum of all cash
payments made to the Borrower during such period in connection with the
termination of any Interest Rate Agreement minus (h) (to the extent
excluded in the calculation of such Net Income (or Net Loss)) the sum
of all cash payments made by the Borrower during such period in
connection with the termination of any Interest Rate Agreement.
"Excluded Assets": at any time, the collective reference to
(a) all assets then subject to a Lien permitted by subsection 6.3(f),
(g), (h), (i), (p), (q) and (r), and (b) any other assets of the
Borrower and its Restricted Subsidiaries (i) which then have a book
value not exceeding $200,000,000 in the aggregate and (ii) none of
which individually then has a book value exceeding $15,000,000.
"FCC": the Federal Communications Commission, or any other
similar or successor agency of the Federal government administering the
Communications Act.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds
brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for
the day of such transactions received by the Administrative Agent from
three federal funds brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or personal,
the obligations of the lessee in respect of which are required in
accordance with GAAP to be capitalized on a balance sheet of the
lessee.
"GAAP": generally accepted accounting principles in the United
States of America used in connection with the preparation of the
consolidated balance sheet and other financial statements described in
subsection 3.1(a) ("Fixed GAAP") or, when such term is used in
subsections 5.1, 5.3, 5.6 and 6.3, generally accepted accounting
principles in the United States of America in effect from time to time
("Floating GAAP").
"Governmental Authority": any nation or government, any stat
or other political subdivision thereof and any entity exercising execu-
tive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness or
other obligation (the "primary obligations") of any other third Person
(the "primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the guaranteeing
person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (A) for the purchase or
payment of any such primary obligation or (B) to maintain working
capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation or (iv)
otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation, as to any Person, shall not include
endorsements by such Person of instruments for deposit or collection in
the ordinary course of business but shall include the obligations of
such Person in respect of the Indebtedness and other obligations of any
partnership of which such Person is a general partner (other than any
such Indebtedness or other obligations with respect to which the payee
thereof has no enforceable right of recourse to such Person for the
payment thereof). The amount of any Guarantee Obligation of any
guaranteeing person shall be deemed to be the lower of (a) an amount
equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless
such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be such
guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"Guarantees": as defined in the Trust Agreement.
"Guarantor": any Person delivering a Guarantee pursuant to
the Trust Agreement.
"Hazardous Substances": any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regu-
lated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Hedging Agreement Obligations": at any time, the aggregate
amount of all monetary obligations of the Borrower to any financial in-
stitution that are accrued and unpaid at such time under any one or
more Interest Rate Agreements and Currency Rate Agreements.
"High Yield Debt": the collective reference to the Borrower's
11% Senior Notes Due 2006 and 12 1/2% Senior Discount Notes Due 2006
and the respective indentures under which such Notes have been issued.
"Holding": Sprint Spectrum Holding Company, L.P., a Delaware
limited partnership and the general partner of the Borrower.
"Indebtedness": of any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than trade liabilities
incurred in the ordinary course of business and payable in accordance
with customary practices), (b) any other indebtedness of such Person
which is evidenced by a note, bond, debenture or similar instrument,
(c) all obligations of such Person under Financing Leases, (d) all
obligations of such Person in respect of acceptances and other similar
obligations issued or created for the account of such Person, (e) all
obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such
Person and (f) all liabilities secured by (or for which the holder of
such liabilities has an existing right, contingent or otherwise, to be
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.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section
4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 3.9.
"Interest Expense": for any fiscal period, the amount of (a)
interest expense of the Borrower and its Restricted Subsidiaries for
such fiscal period determined in accordance with GAAP plus (b) interest
expense in respect of Specified Affiliate Debt for such fiscal period
determined in accordance with GAAP.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of
such Interest Period, and (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day which is three
months, or a whole multiple thereof, after the first day of such
Interest Period and the last day of such Interest Period.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing
or conversion date, as the case may be, with respect to such
Eurodollar Loan and ending one, two, three, six or, with the
consent of each Lender in its sole discretion, nine or twelve
months thereafter, as selected by the Borrower in its notice
of borrowing or notice of conversion, as the case may be,
given with respect thereto; and
(b) thereafter, each period commencing on the last
day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three, six or, with the
consent of each Lender in its sole discretion, nine or twelve
months thereafter, as selected by the Borrower by irrevocable
notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that all of the foregoing provisions relating to Interest Per-
iods are subject to the following:
(i) if any Interest Period pertaining to a Eurodollar
Loan would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) no Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date shall be selected
by the Borrower in respect of Revolving Credit Loans, and no
Interest Period that would otherwise extend beyond the final
maturity date of the Term Loans shall be selected by the
Borrower in respect of the Term Loans; and
(iii) any Interest Period pertaining to a Eurodollar
Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate swap or other
interest rate hedge arrangement to or under which the Borrower is a
party or a beneficiary that is designed and entered into to protect
against fluctuations in interest rates and not for speculative pur-
poses.
"Investment Grade Status": shall exist at any time when the
actual or implied rating of the Borrower's senior long-term unsecured
debt is at or above Baa3 from Moody's or BBB- from S&P; if either of
Moody's or S&P shall change its system of classifications after the
date of this Agreement, Investment Grade Status shall exist at any time
when the rating of the Borrower's senior long-term unsecured debt is at
or above the new rating which most closely corresponds to the
above-specified level under the previous rating system.
"Investments": as defined in subsection 6.8.
"Lenders": as defined in the preamble hereto.
"Level I Pricing": applies from (a) (i) the Closing Date and
(ii) any date on which no other Pricing Level is applicable until (b)
the next subsequent Adjustment Date on which another Pricing Level be-
comes applicable.
"Level II Pricing": applies from (a) the Adjustment Date
following a fiscal quarter for which [____________] until (b) the next
subsequent Adjustment Date on which another Pricing Level becomes
applicable.
"Level III Pricing": applies, subject to clause (b) of the
definition of Pricing Level, from (a) the Adjustment Date following a
fiscal quarter for which [____________] until (b) the next subsequent
Adjustment Date on which another Pricing Level becomes applicable.
"Level IV Pricing": applies, subject to clauses (a), (b) and
(c) of the definition of Pricing Level, (a) from the Adjustment Date
(i) following a fiscal quarter for which [____________] until (b) the
next subsequent Adjustment Date on which another Pricing Level becomes
applicable.
"Level V Pricing": applies, subject to clauses (a), (b) and
(c) of the definition of Pricing Level, (a) from the Adjustment Date
(i) following a fiscal quarter for which [_____________] until (b) the
next subsequent Adjustment Date on which another Pricing Level becomes
applicable.
"Level VI Pricing": applies, subject to clauses (a), (b) and
(c) of the definition of Pricing Level, (a) from the Adjustment Date
(i) following a fiscal quarter for which [____________] until the next
subsequent Adjustment Date on which another Pricing Level becomes
applicable.
"Level VII Pricing": applies, subject to clauses (a), (b) and
(c) of the definition of Pricing Level, (a) from the Adjustment Date
(i) following a fiscal quarter for which [____________] until the next
subsequent Adjustment Date on which another Pricing Level becomes
applicable.
"Level VIII Pricing": applies, subject to clauses (a), (b) and
(c) of the definition of Pricing Level, (a) from the Adjustment Date
(i) following a fiscal quarter for which [____________] until the next
subsequent Adjustment Date on which another Pricing Level becomes
applicable.
"Level IX Pricing": applies, subject to clauses (a), (b) and
(c) of the definition of Pricing Level, (a) from the Adjustment Date
(i) following a fiscal quarter for which [____________] until the next
subsequent Adjustment Date on which another Pricing Level becomes
applicable.
"Level X Pricing": applies, subject to clauses (a) and (c) o
the definition of Pricing Level, 9a) from any Adjustment Date on which
[____________] until (b) the next subsequent Adjustment Date on
which another Pricing Level becomes applicable.
"Leverage Ratio": for any fiscal quarter, the ratio of (a)
Total Debt on the last day of such fiscal quarter to (b) Annualized
EBITDA for the period ending on the last day of such fiscal quarter.
"License": any broadband personal communications services li-
cense issued by the FCC in connection with the operation of a System.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or
other security interest (including, without limitation, any conditional
sale or other title retention agreement and any Financing Lease having
substantially the same economic effect as any of the foregoing).
"Loan Documents": this Agreement, the Guarantees, the Trust
Agreement, the Security Documents and the Capital Contribution Agree-
ment.
"Loan Parties": the Borrower, MinorCo and each Subsidiary of
the Borrower which is a party to a Loan Document.
"Loans": Revolving Credit Loans and Term Loans.
"Material Adverse Effect": a material adverse effect on (a)
the business, assets, results of operations or financial condition of
the Borrower and its Restricted Subsidiaries taken as a whole, (b) the
ability of the Borrower to perform its obligations under the Loan
Documents or (c) the validity or enforceability of this Agreement or
any of the other Loan Documents or the rights or remedies of the
Administrative Agent, the Trustees or the Lenders thereunder; provided,
however, that no termination, revocation or non-renewal of any License
shall constitute a Material Adverse Effect unless after giving effect
thereto the aggregate number of Owned Pops is less than 120,000,000.
"Measurement Dates": each January 1 and July 1 (or, in each
case, if such date is not a Business Day, then the first Business Day
after such date) which occurs prior to the fifth anniversary of the
Closing Date, beginning with January 1, 1997.
"MinorCo": MinorCo, L.P., a Delaware limited partnership.
"Moody's": Moody's Investors Service, Inc.
"Moody's Bond Rating": for any day, the actual or implied
rating of the Borrower's senior long-term unsecured debt by Moody's in
effect at 9:00 A.M., New York City time, on such day. If Moody's shall
have changed its system of classifications after the date hereof, the
Moody's Bond Rating shall be considered to be at or above a specified
level if it is at or above the new rating which most closely
corresponds to be specified level under the old rating system.
"Mortgaged Property": as defined in subsection 5.9(c).
"MTA": a Major Trading Area as defined in 47 C.F.R. ss.
24.202.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": of any Asset Sale by any Person, the
aggregate amount of cash and Cash Equivalents received by or on behalf
of such Person in consideration for such Asset Sale or (when and as
received in cash or Cash Equivalents) through payment or disposition of
deferred consideration for such Asset Sale (including by way of
deferred payment of principal pursuant to a note or other security or
installment receivable or purchase price adjustment receivable or
otherwise), after deducting therefrom, as applicable, (a) the amount of
such proceeds required to be applied at the time of such Asset Sale to
repay Indebtedness (other than Secured Obligations) secured by any
asset which is the subject of such Asset Sale, (b) brokerage
commissions and other fees and expenses (including fees and expenses of
legal counsel and investment bankers) payable in connection therewith,
(c) appropriate amounts to be provided by the Borrower or any
Restricted Subsidiary, as the case may be, as a reserve required in
accordance with GAAP against any liabilities associated with such Asset
Sale and retained by the Borrower or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities and liabilities
under any indemnification obligations associated with such Asset Sale
and (d) other out-of-pocket costs incurred in connection therewith; and
adding thereto, as applicable, any reversal of or reduction in any
reserve referred to in clause (c) above.
"Net Income" or "Net Loss": for any fiscal period, the amount
which, in conformity with GAAP, would constitute the net income or net
loss, as the case may be, of the Borrower and its Restricted
Subsidiaries on a consolidated basis for such fiscal period (after
adjustment for minority interests), provided that Net Income or Net
Loss shall exclude extraordinary, unusual or non-recurring gains or
losses.
"New Lending Office": as defined in subsection 2.15(b).
"Non-Excluded Taxes": as defined in subsection 2.15(a).
"Non-U.S. Lender": as defined in subsection 2.15(a).
"Note": as defined in subsection 2.4(e).
"Notice of Enforcement": as defined in the Trust Agreement.
"Owned Pops": at any time, the aggregate number of Pops in-
cluded in those MTA's or BTA's for which the Borrower and its Restrict-
ed Subsidiaries then own Licenses that are in full force and effect.
"Parents": Sprint Corporation, Tele-Communications, Inc.,
Comcast Corporation and Cox Communications, Inc.
"Participant": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Percentage": as to any Lender (a) at any time prior to the
making of the initial Loans, the percentage which such Lender's
Aggregate Commitment then constitutes of the Aggregate Commitments of
all the Lenders, (b) at any time after the making of the initial Loans
and prior to the termination or expiration of the Commitments, the
percentage which the sum of such Lender's then outstanding Term Loans,
then unused Term Loan Commitment and then Revolving Credit Commitment
constitutes of the aggregate of the then outstanding Term Loans, then
unused Term Loan Commitments and then Revolving Credit Commitments and
(c) at any time after the Commitments shall have expired or terminated,
the percentage which such Lender's then outstanding Loans constitutes
of the aggregate of the then outstanding Loans).
"Permitted Refinancing Indebtedness": Indebtedness of the
Borrower to the extent the proceeds thereof are used to refinance
existing Indebtedness of the Borrower; provided that (a) after giving
effect to the incurrence of such Indebtedness, the Borrower is in Pro
Forma Compliance, (b) the documents under which such Indebtedness is
incurred are not inconsistent with the Loan Documents, (c) such
Indebtedness, if secured, will not be secured by any assets other than
those securing the Indebtedness being refinanced thereby, (d) the final
maturity of such Indebtedness is no earlier than the final maturity of
the Indebtedness being refinanced thereby and (e) the other terms
(other than provisions regarding interest and fees) of such
Indebtedness and of any agreement entered into and of any instrument
issued in connection therewith (including, without limitation, those
relating to covenant protection) are not, taken as a whole, in the good
faith judgment of the Borrower's management, materially less favorable
to the Borrower than the terms and conditions (other than provisions
regarding interest and fees) of the Indebtedness being refinanced
thereby.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Personal Property Assets": all personal property of the
Borrower and its Restricted Subsidiaries (other than the Licenses).
"Plan": at a particular time, any employee benefit plan which
is covered by Title IV of ERISA and in respect of which the Borrower or
a Commonly Controlled Entity is (or, if such plan were terminated at
such time, would under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pops": as of any date, with respect to any BTA or MTA, the
population of such BTA or MTA as such number is published in the then
most recently issued Donnelly Marketing Service Population Guide.
"Prepayment Acceptance Amount": with respect to each Lender
receiving a Prepayment/Reduction Offer Notice, the maximum principal
amount of the Term Loans of such Lender subject to such
Prepayment/Reduction Offer Notice that such Lender wishes to be subject
to prepayment, as indicated in the applicable Prepayment/Reduction
Offer Response Notice of such Lender.
"Prepayment Pro Rata Amount": with respect to each Lender in
connection with any Specified Prepayment/Reduction, the product
obtained by multiplying (a) the associated Prepayment/Reduction Amount
by (b) a fraction the numerator of which is such Lender's then
outstanding Term Loans and the denominator of which is the sum of all
then outstanding Term Loans and Revolving Credit Commitments.
"Prepayment/Reduction Amount": with respect to any Specified
Prepayment/Reduction to be made on any date, the amount required to be
applied toward prepayment of the Term Loans and reduction of the
Revolving Credit Commitments on such date in accordance with the
provisions of subsection 2.18 and the definition of the term Pro Rata
Payment Offer.
"Prepayment/Reduction Offer Notice": a written notice (a)
offering to prepay the Term Loans and reduce the Revolving Credit
Commitments, on the Specified Prepayment/Reduction Date designated
therein, in an aggregate amount equal to the Prepayment/Reduction
Amount, (b) requesting each Lender to respond to such offer by
delivering to the Agent and the Borrower a Prepayment/Reduction Offer
Response Notice no later than four Business Days prior to such
Specified Prepayment/ Reduction Date, and (c) informing each such
Lender that the failure by such Lender to deliver a
Prepayment/Reduction Offer Response Notice on or before the fourth
Business Day prior to the Specified Prepayment/Reduction Date shall be
deemed to be the acceptance of the full amount of such offer by such
Lender.
"Prepayment/Reduction Offer Response Notice": a written notice
to the Agent and the Borrower in response to a Prepayment/Reduction
Offer Notice, pursuant to which the Lender delivering such notice
states whether such Lender accepts or rejects the Borrower's offer
contained in such Prepayment/Reduction Offer Notice to prepay Term
Loans and/or reduce such Lender's Revolving Credit Commitment, as
applicable, and, if such offer is accepted, states the maximum
principal amount of such Lender's Term Loans and/or the maximum amount
of such Lender's Revolving Credit Commitment, as applicable, which such
Lender wishes to be subject to prepayment or reduction, as the case may
be.
"Prepayment Share": with respect to each Lender which is the
holder of then outstanding Term Loans in connection with any Specified
Prepayment/Reduction, the lesser of its Prepayment Acceptance Amount
and its Prepayment Pro Rata Amount.
"Pricing Level": as applicable, Level I Pricing, Level II
Pricing, Level III Pricing, Level IV Pricing, Level V Pricing, Level VI
Pricing, Level VII Pricing, Level VIII Pricing, Level IX Pricing or
Level X Pricing; the Pricing Level shall be adjusted on each Adjustment
Date on which there is a change in the Moody's Bond Rating, the S&P
Bond Rating, Adjusted EBITDA or the Leverage Ratio, as the case may be,
that would result in a different Pricing Level being applicable, and,
for purpose of such adjustments, (a) in the event that on any
Adjustment Date the applicable Leverage Ratio, Moody's Bond Rating or
S&P Bond Rating would not result in the same Pricing Level being
applicable, the applicable Pricing Level shall be the lowest Pricing
Level otherwise applicable (Level I Pricing being the highest Pricing
Level and Level X Pricing being the lowest Pricing Level), (b) if more
than one Pricing Level is otherwise applicable under the terms hereof
(including after application of clause (c) below) on any Adjustment
Date, then, notwithstanding anything herein to the contrary, the lowest
of such otherwise applicable Pricing Levels shall be applicable on such
Adjustment Date and no other Pricing Level shall be so applicable, and
(c) notwithstanding anything herein to the contrary, Level IV Pricing
through Level X Pricing shall not be applicable until the first
Adjustment Date after the earlier to occur of (i) the first date on or
after the first anniversary of the Closing Date on which the Borrower
shall have [_______] Wireless Subscribers and (ii) Adjusted EBITDA for
any fiscal quarter theretofore ended being a positive number and the
Borrower having a Moody's Bond Rating or an S&P Bond Rating.
"Prime Rate": the rate of interest per annum publicly
announced from time to time by Chase as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to
be the lowest rate of interest charged by Chase in connection with
extensions of credit to debtors).
"Pro Forma Compliance": shall exist at any time when the
Borrower shall be in pro forma compliance with the covenants set forth
in subsections 6.1 (computed on the basis of (i) Total Debt, Total
Capitalization and Secured Obligations then outstanding and (ii)
Annualized Adjusted EBITDA and Annualized EBITDA calculated using such
amounts for the most recently ended fiscal quarter for which financial
statements shall have been delivered to the Lenders multiplied by
four), provided that no Default or Event of Default shall have occurred
and be continuing either immediately prior to the event with respect to
which Pro Forma Compliance is being determined or after giving effect
to such event.
"Properties": as defined in subsection 3.16(b).
"Pro Rata Payment Offer": an offer made by the Borrower, to
each holder of Secured Obligations as to which such an offer is
required, pursuant to the Secured Instrument under which such Secured
Obligations are outstanding (including, in certain circumstances, this
Agreement), to be made, to have such holder's pro rata share (based on
(i) in the case of Secured Obligations referred to in clause (y) below,
the then outstanding principal amounts of such Secured Obligations and
amounts of unused commitments to extend credit constituting Secured
Obligations and (ii) in the case of Secured Obligations referred to in
clause (x) below, the then outstanding principal amounts of such
Secured Obligations) of a specified amount (x) in the case of Secured
Obligations (including, without limitation, the Term Loans) other than
those referred to in clause (y), applied to prepay such Secured
Obligations or (y) in the case of Secured Obligations under a committed
revolving credit facility (including, without limitation, the Revolving
Credit Commitments), to reduce the commitments under such facility and
to prepay any Secured Obligations outstanding under such facility by
the amount such Secured Obligations exceed such commitments as so
reduced.
"Pro Rata Prepayment/Commitment Reduction": any application of
Net Cash Proceeds (a) in accordance with subsection 6.6(c), (d) or (f),
to reduce the Revolving Credit Commitments and prepay the Term Loans
and (b) to the extent required by and in accordance with any mandatory
prepayment and/or commitment reduction provisions of, or to the extent
that the Borrower determines to do so under any voluntary prepayment
and/or commitment reduction provisions of, Secured Instruments with
respect to any other Secured Obligations, to prepay the loans and/or
reduce the commitments to lend thereunder, with the portion of such Net
Cash Proceeds to be applied to reduce the Revolving Credit Commitments
and prepay the Term Loans being at least equal to a pro rata share
thereof determined on the basis of the respective amounts of the then
outstanding Secured Obligations to which such Net Cash Proceeds will be
applied and unused commitments to lend then in effect under the Secured
Instruments relating to such Secured Obligations.
"Public Offering Date": the date on which there shall be
completed an underwritten public offering of shares of Capital Stock of
the Borrower (or of any direct or indirect partner or shareholder of
the Borrower (other than any Parent) having the economic effect of
transferring to the public equity interests in the Borrower) pursuant
to a registration statement filed with, and declared effective by, the
Securities and Exchange Commission (or its successor) in accordance
with the Securities Act of 1933, as amended.
"Real Estate Assets": all interests in real property of the
Borrower and its Restricted Subsidiaries other than Mortgaged Proper-
ties.
"RealtyCo": Sprint Spectrum Realty Company, L.P., a Delaware
limited partnership.
"Reduction Acceptance Amount": with respect to each Lender
receiving a Prepayment/Reduction Offer Notice, the maximum amount of
the Revolving Credit Commitment of such Lender subject to such
Prepayment/Reduction Offer Notice that such Lender wishes to be subject
to reduction, as indicated in the applicable Prepayment/Reduction Offer
Response Notice of such Lender.
"Reduction Pro Rata Amount": with respect to each Lender in
connection with any Specified Prepayment/Reduction, the product
obtained by multiplying (a) the associated Prepayment/Reduction Amount
by (b) a fraction the numerator of which is such Lender's Revolving
Credit Commitment and the denominator of which is the sum of all then
outstanding Term Loans and Revolving Credit Commitments.
"Reduction Share": with respect to each Lender in connection
with any Specified Prepayment/Reduction, the lesser of its Reduction
Acceptance Amount and its Reduction Pro Rata Amount.
"Reference Lenders": Chase, The Bank of New York and Nations-
Bank of Texas, N.A.
"Register": as defined in subsection 9.6(d).
"Release": any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, dispos-
ing, depositing, dispersing, emanating or migrating of any Hazardous
Substances in, into, onto or through the environment.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(c) of ERISA, other than those events as to which the thirty day
notice period is waived under the regulations adopted by the PBGC.
"Requirement of Law": as to any Person, the partnership
agreement, the certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law,
treaty, rule or regulation, or determination, judgment, writ,
injunction, decree or order of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Requisite Lenders": at any time, Lenders, the Percentages of
which aggregate more than 50%.
"Responsible Officer": any of the president, chief financial
officer, treasurer, assistant treasurer, director-corporate finance or
controller of the Borrower.
"Restricted Equity": equity contributions, the proceeds of
which are used to fund (a) Investments pursuant to clause (i)(A)(I) of
the first proviso contained in subsection 6.8(c) or clause (i)(A)(I) of
the first proviso contained in subsection 6.8(d), or (b) prepayments
pursuant to subsection 6.11(a)(ii)(B).
"Restricted Payments": as defined in subsection 6.7.
"Restricted Subsidiary": any Subsidiary of the Borrower that
is not an Unrestricted Subsidiary.
"Revolving Credit Commitment": as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to the
Borrower in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender's name on
Schedule I under the column captioned "Revolving Credit Commitment", in
each case as such amount may be changed from time to time in accordance
with the terms of this Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at
any time, the percentage which such Lender's Revolving Credit
Commitment then constitutes of the Revolving Credit Commitments of all
the Lenders (or, at any time after the Revolving Credit Commitments
shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Credit Loans then
outstanding constitutes of the aggregate principal amount of the
Revolving Credit Loans then outstanding).
"Revolving Credit Commitment Period": the period from and in-
cluding the date hereof to but not including the Revolving Credit Ter-
mination Date.
"Revolving Credit Loans": as defined in subsection 2.1(a).
"Revolving Credit Termination Date": the date that is 90 days
prior to the ninth anniversary of the Closing Date or such earlier date
on which the Revolving Credit Commitments are terminated pursuant to
this Agreement.
"S&P": Standard and Poor's Ratings Services.
"S&P Bond Rating": for any day, the actual or implied rating
of the Borrower's senior long-term unsecured debt by S&P in effect at
9:00 A.M., New York City time, on such day. If S&P shall have changed
its system of classifications after the date hereof, the S&P Bond
Rating shall be considered to be at or above the new rating which most
closely corresponds to the specified level under the old rating system.
"Secured Instruments": as defined in the Trust Agreement.
"Secured Obligations": as defined in the Trust Agreement.
"Security Documents": as defined in the Trust Agreement.
"Single Employer Plan": any Plan which is covered by Title IV
of ERISA, but which is not a Multiemployer Plan.
"Special Payment Condition": shall be satisfied when, after
giving effect to any Restricted Payment described in subsection 6.7(a)
or (c), any Investment described in subsection 6.8(c) or (d) or any
voluntary prepayment referred to in subsection 6.11 or any other action
which may not be taken under the terms hereof until the Special Payment
Condition is satisfied, the ratio of the then outstanding Total Debt to
Annualized EBITDA for the period ending on the last day of the then
most recently ended fiscal quarter for which financial statements shall
have been delivered to the Lenders pursuant to subsection 5.1 is not
greater than 5.0 to 1 and the ratio of Annualized EBITDA for the period
ending on such last day to Interest Expense for the period of four
consecutive fiscal quarters ended on such last day is not less than 2.5
to 1.
"Special Purpose Subsidiary": each of EquipmentCo, RealtyCo
and WirelessCo.
"Special Purpose Subsidiary Funding Agreement": an agreement
between the Borrower and a Special Purpose Subsidiary whereby (a) such
Special Purpose Subsidiary agrees to provide the Borrower the benefit
of the use of such Special Purpose Subsidiary's assets and (b) the
Borrower agrees to pay to such Special Purpose Subsidiary an amount
equal to all liabilities of such Special Purpose Subsidiary less any
amounts contributed by the Borrower to the equity of such Special
Purpose Subsidiary to fund such liabilities and (c) the Borrower agrees
to cause all Contractual Obligations of such Special Purpose Subsidiary
to be performed and all Requirements of Law of such Special Purpose
Subsidiary to be complied with.
"Specified Affiliate Debt": Indebtedness of an Affiliate of
the Borrower incurred in an arm's length transaction (other than
Indebtedness used to fund capital contributions required to be made by
such Affiliate (or an Affiliate thereof) under the Capital Contribution
Agreement or the partnership agreement of Holding) the proceeds of
which shall have been contributed to the capital of the Borrower or
used to purchase Capital Stock of the Borrower and which shall have
been designated in a written notice from the Borrower to the
Administrative Agent as Specified Affiliate Debt.
"Specified Prepayment/Reduction": any prepayment of Term
Loans and/or reduction of the Revolving Credit Commitments to which the
provisions of subsection 2.18 are applicable.
"Specified Prepayment/Reduction Date": as defined in subsec-
tion 2.18.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"System": as to any Person, assets constituting a radio comm-
unications system authorized under the rules for wireless communica-
tions services (including any license and the network, marketing, dis-
tribution, sales, customer interface and operations functions relating
thereto) owned and operated by such Person.
"Tax Credit": as defined in subsection 2.15(d).
"Term Loan": a Tranche I Term Loan or a Tranche II Term Loan.
"Term Loan Commitments": the Term Loan I Commitments and the
Term Loan II Commitments.
"Term Loan I Commitment": as to any Lender, the obligation of
such Lender to make Tranche I Term Loans to the Borrower in an
aggregate principal amount not to exceed the amount set forth opposite
such Lender's name on Schedule I under the column captioned "Term Loan
I Commitment", in each case as such amount may be changed from time to
time in accordance with the terms of this Agreement.
"Term Loan II Commitment": as to any Lender, the obligation of
such Lender to make Tranche II Term Loans to the Borrower in an
aggregate principal amount not to exceed the amount set forth opposite
such Lender's name on Schedule I under the column captioned "Term Loan
II Commitment", in each case as such amount may be changed from time to
time in accordance with the terms of this Agreement.
"Term Loan Commitment Period": the period from and including
the date hereof to but not including the Term Loan Commitment Termina-
tion Date.
"Term Loan Commitment Termination Date": the date which is
ninety days after the Closing Date or such earlier date on which the
Term Loan Commitments are terminated pursuant to this Agreement.
"Total Capitalization": at any date, the sum of (a) Total Debt
outstanding on such date plus (b) Contributed Capital on such date plus
(c) Committed Capital on such date minus (d) the amount of Restricted
Payments made by the Borrower or any Restricted Subsidiary (other than
Restricted Payments which are permitted to be made pursuant to
subsection 6.7(i) or (ii)), directly or indirectly to any Person other
than the Borrower or any Restricted Subsidiary through such date.
"Total Debt": at any time, the sum of (a) the aggregate amount
of Indebtedness of the Borrower and its Restricted Subsidiaries on a
consolidated basis then outstanding (including capitalized and accreted
interest) plus (b) the aggregate amount of Guarantee Obligations of the
Borrower and its Restricted Subsidiaries then outstanding in respect of
Indebtedness of Persons other than the Borrower and its Restricted
Subsidiaries plus (c) the aggregate amount of Specified Affiliate Debt
then outstanding (including capitalized and accreted interest) minus
(d) the aggregate amount of cash and Cash Equivalents then owned by the
Borrower and its Restricted Subsidiaries.
"Trademark License Agreement": the Amended and Restated
Sprint Trademark License Agreement, dated as of January 31, 1996, by
and between Sprint Communications Company, L.P. and the Borrower
(formerly MajorCo, L.P.), as the same may be amended, supplemented or
otherwise modified from time to time in accordance with subsection
6.12.
"Tranche A Commitment Period": the period (a) beginning on the
later of (i) the Closing Date and (ii) the date on which the Borrower
shall have entered into Vendor Credit Facilities containing commitments
to provide financing to the Borrower in an aggregate amount of at least
$[____________] and (b) ending on the date immediately prior to the
commencement of the Tranche B Commitment Period.
"Tranche B Commitment Period": the period (a) beginning on the
first date on which each of the following shall have occurred: (i) the
Borrower shall have received at least $[____________] in the aggregate
in Contributed Capital in cash subsequent to December 31, 1995, (ii)
the Borrower shall have (A) obtained Additional Financing Commitments
(as defined below) in an aggregate amount of at least $[____________]
and (B) obtained loans or equity contributions (other than Restricted
Equity) in cash under Additional Financing Commitments in an aggregate
amount of at least $[____________], (iii) the Borrower shall have (A)
obtained loans under Vendor Credit Facilities in an aggregate amount of
at least $[____________] and (B) obtained loans and commitments under
Vendor Credit Facilities in an aggregate amount of at least
$[____________], (iv) Systems of the Borrower servicing at least
[____________] Covered Pops shall be performing in accordance with
industry standards and (v) the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer dated as of
such date stating that each of the conditions specified in clauses (i)
through (iv) above shall have been satisfied as of such date, and (b)
ending on the earlier of (i) the date immediately prior to the
commencement of the Tranche C Commitment Period and (ii) the Revolving
Credit Termination Date. For purposes of this definition, "Additional
Financing Commitments" shall mean commitments to provide debt or cash
equity financing (excluding Restricted Equity but including, without
limitation, any vendor financing not included in calculating clause
(a)(iii)(B) of the definition of Tranche B Commitment Period) to the
Borrower under terms and conditions approved by the Administrative
Agent, acting reasonably.
"Tranche C Commitment Period": the period (a) beginning on
the later of (i) the first day of the Tranche B Commitment Period and
(ii) [____________] and (b) ending on the Revolving Credit Termination
Date.
"Tranche I Term Loans": as defined in subsection 2.1(b).
"Tranche II Term Loans": as defined in subsection 2.1(b).
"Transferee": as defined in subsection 9.6(f).
"Trust Agreement": the Trust Agreement, dated as of October 2,
1996, among the Borrower, First Union National Bank, a national banking
association, as corporate trustee (the "Corporate Trustee"), and
Kenneth D. Benton, as individual trustee (together with the Corporate
Trustee, the "Trustees"), as amended, supplemented or otherwise
modified from time to time.
"Trustees": as defined in the definition of Trust Agreement.
"Type": as to any Loan, its nature as an ABR Loan or a Euro-
dollar Loan.
"Unrestricted Subsidiary": APC and any other Subsidiary of the
Borrower (other than any Special Purpose Subsidiary) that the Borrower
designates as an Unrestricted Subsidiary in accordance with subsection
6.8(c) or (d), provided, however, that the Borrower may, so long as no
Default or Event of Default would result therefrom, cause any
Unrestricted Subsidiary to become a Restricted Subsidiary by so
notifying the Administrative Agent in a written instrument executed by
a Responsible Officer.
"Vendor Credit Facility": as defined in the Trust Agreement.
"Vendor Procurement Contracts": (a) the Procurement and Ser-
vices Contract, dated as of January 31, 1996, between the Borrower
(formerly MajorCo, L.P.) and Lucent Technologies Inc. (formerly AT&T
Corp.) and (b) the Procurement and Services Contract, dated as of Jan-
uary 31, 1996, between the Borrower (formerly MajorCo, L.P.) and Nor-
thern Telecom Inc., in each case, as amended, supplemented or other-
wise modified from time to time in accordance with subsection 6.12.
"Weighted Average Life": when applied to any committed
revolving credit facility or any Indebtedness, at any date, the number
of years obtained by dividing (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining scheduled commitment
reduction or, as the case may be, installment, sinking fund or other
scheduled payment of principal, including payment at final maturity, in
respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
reduction or payment, by (b) in the case of the revolving credit
facility under this Agreement, the Revolving Credit Commitments, or, in
the case of any other committed revolving credit facility, the
aggregate maximum commitment to lend then in effect under such
committed revolving credit facility or, in cases other than committed
revolving credit facilities, the then outstanding principal amount of
such Indebtedness.
"Wholly Owned": any Subsidiary of the Borrower or any
Restricted Subsidiary shall be deemed to be Wholly Owned if at least
99% of the voting and economic equity interest in such Subsidiary is
owned by the Borrower or such Restricted Subsidiary and the remainder
of the voting and economic equity interest in such Subsidiary is owned
by MinorCo.
"WirelessCo": WirelessCo, L.P., a Delaware limited partner-
ship.
"Wireless Service": the provision of broadband personal comm-
unications services in one or more Systems.
"Wireless Subscribers": at any time, all customers then re-
ceiving Wireless Services from the Borrower or any of its Restricted
Subsidiaries.
"Working Capital": at any date, the sum of (a) all amounts
(other than cash and Cash Equivalents) which would, in conformity with
GAAP, be included under current assets on a balance sheet of the
Borrower and its Restricted Subsidiaries on a consolidated basis on
such date minus (b) all amounts which would, in conformity with GAAP,
be included under current liabilities on a balance sheet of the
Borrower and its Restricted Subsidiaries on a consolidated basis on
such date.
1.2 Other Definitional Provisions1.2 Other
Definitional Provisions. (a) Unless otherwise specified therein, all
terms defined in this Agreement shall have the defined meanings when
used in any certificate or other document made or delivered pursuant
hereto.
(b) As used herein, and in any certificate or other
document made or delivered pursuant hereto, accounting terms relating
to the Borrower and its Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1, to the extent not
defined, shall have the respective meanings given to them under Fixed
GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references are
to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such
terms.
(e) The words "include", "includes" and "including"
when used herein shall be deemed to be followed by the phrase "without
limitation".
(f) Unless otherwise expressly provided herein, any
reference in this Agreement to any Loan Document shall mean such
document as amended, restated, supplemented or otherwise modified from
time to time.
(g) Any reference herein to a fiscal year or a fiscal
quarter shall be deemed a reference to such fiscal year or such fiscal
quarter of the Borrower.
(h) Unless otherwise defined herein, any term used
herein that is defined in the Uniform Commercial Code in effect in the
State of New York on the date hereof shall have the meanings given such
term therein.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments. (a) Subject to the terms and
conditions hereof, each Lender having a Revolving Credit Commitment
severally agrees to make revolving credit loans ("Revolving Credit
Loans") to the Borrower from time to time during the Revolving Credit
Commitment Period in an aggregate principal amount at any one time
outstanding not to exceed the amount of such Lender's Revolving Credit
Commitment; provided, that no Lender shall be obligated to make
Revolving Credit Loans to the Borrower hereunder in an aggregate
principal amount at any one time outstanding exceeding (i) during the
Tranche A Commitment Period, such Lender's Revolving Credit Commitment
Percentage of the lesser of (A) $450,000,000 and (B) the aggregate
Revolving Credit Commitments of all Lenders, (ii) during the Tranche B
Commitment Period, such Lender's Revolving Credit Commitment Percentage
of the lesser of (A) $1,200,000,000 and (B) the aggregate Revolving
Credit Commitments of all Lenders and (iii) during the Tranche C
Commitment Period, such Lender's Revolving Credit Commitment Percentage
of the aggregate Revolving Credit Commitments of all Lenders. During
the Revolving Credit Commitment Period the Borrower may use the
Revolving Credit Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b) Subject to the terms and conditions hereof, each
Lender having a Term Loan I Commitment severally agrees to make a term
loan (collectively, the "Tranche I Term Loans") to the Borrower in a
principal amount equal to the amount of such Lender's Term Loan I
Commitment, and each Lender having a Term Loan II Commitment severally
agrees to make a term loan (collectively, the "Tranche II Term Loans")
to the Borrower in a principal amount not to exceed the amount of such
Lender's Term Loan II Commitment.
(c) The Loans may from time to time be (i) Eurodollar
Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by
the Borrower and notified to the Administrative Agent in accordance
with subsection 2.2.
2.2 Borrowing Procedures. (a) The Borrower may borrow
under the Revolving Credit Commitments during the Revolving Credit
Commitment Period on any Business Day, provided that the Borrower shall
give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 2:00 P.M., New York City
time, (i) three Business Days prior to the requested Borrowing Date, if
all or any part of the requested Revolving Credit Loans are to be
initially Eurodollar Loans, or (ii) one Business Day prior to the
requested Borrowing Date, otherwise), specifying (A) the amount to be
borrowed, (B) the requested Borrowing Date, (C) whether the borrowing
is to be of Eurodollar Loans, ABR Loans or a combination thereof (and,
if a combination, the respective amounts of each Type of Loan) and (D)
if the borrowing is to be entirely or partly of Eurodollar Loans the
respective lengths of the initial Interest Periods therefor. Each
borrowing under the Revolving Credit Commitments shall be in an amount
equal to (x) in the case of ABR Loans, $10,000,000 or a whole multiple
of $1,000,000 in excess thereof (or, if the then unused amount of the
Revolving Credit Commitments is less than $1,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $10,000,000 or a whole
multiple of $1,000,000 in excess thereof.
(b) The Borrower may borrow the Tranche I Term Loans
not later than 5 Business Days after the Closing Date and may borrow
the Tranche II Term Loans on any Business Day during the Term Loan
Commitment Period, provided that the Borrower shall give the
Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 2:00 P.M., New York City time, (i)
three Business Days prior to the requested Borrowing Date, if all or
any part of the requested Term Loans are to be initially Eurodollar
Loans, or (ii) one Business Day prior to the requested Borrowing Date,
otherwise), specifying (A) the amount to be borrowed, (B) the requested
Borrowing Date, (C) whether the borrowing is to be of Eurodollar Loans,
ABR Loans or a combination thereof (and, if a combination, the
respective amounts of each Type of Loan) and (D) if the borrowing is to
be entirely or partly of Eurodollar Loans the respective lengths of the
initial Interest Periods therefor.
(c) Upon receipt of any notice from the Borrower
pursuant to paragraph (a) or (b) above, the Administrative Agent shall
promptly notify each Lender thereof. Each Lender will make the amount
of its pro rata share of each borrowing available to the Administrative
Agent for the account of the Borrower at the office of the
Administrative Agent specified in subsection 9.2 prior to 11:00 A.M.,
New York City time, on the Borrowing Date requested by the Borrower in
funds immediately available to the Administrative Agent. Such borrowing
will then be made available to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with
the aggregate of the amounts made available to the Administrative Agent
by the Lenders and in like funds as received by the Administrative
Agent.
2.3 Commitment Fee; Other Fees. (a) The Borrower
agrees to pay to the Administrative Agent for the account of each
Lender a commitment fee for the period from and including the first day
of the Revolving Credit Commitment Period to the Revolving Credit
Termination Date, computed at the Commitment Fee Rate on the average
daily amount of the unused Revolving Credit Commitment of such Lender
during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and
on the Revolving Credit Termination Date, commencing on the first of
such dates to occur after the date hereof.
(b) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee for the period
from and including the first day of the Term Loan Commitment Period to
the Term Loan Commitment Termination Date, computed at the Commitment
Fee Rate on the average daily amount of the unused Term Loan Commitment
of such Lender during the period for which payment is made, payable in
arrears on the Term Loan Commitment Termination Date.
(c) The Borrower agrees to pay to the Administrative
Agent for the account of the Administrative Agent such fees as have
been or may from time to time be agreed to in writing between the
Borrower and the Administrative Agent.
2.4 Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each Lender the then unpaid principal amount
of all Revolving Credit Loans of such Lender on the Revolving Credit
Termination Date (or on such earlier date on which the Loans become due
and payable pursuant to Section 7). The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each
Lender the then unpaid principal amount of each Term Loan of such
Lender in installments on the dates and in the amounts set forth in
subsection 2.7(b) (or on such earlier date on which the Loans become
due and payable pursuant to Section 7). The Borrower hereby further
agrees to pay interest on the unpaid principal amount of the Loans from
time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in
subsection 2.9.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of the
Borrower to such Lender resulting from each Loan of such Lender from
time to time, including the amounts of principal and interest payable
and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the
Register pursuant to subsection 9.6(d), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan
made hereunder, the Type thereof and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender hereunder
and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d) The entries made in the Register and the accounts
of each Lender maintained pursuant to subsection 2.4(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account, or
any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to the
Borrower by such Lender in accordance with the terms of this Agreement.
(e) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender a promissory note of the Borrower dated the
Closing Date evidencing the Loans of such Lender, substantially in the
form of Exhibit A-1 (in the case of Revolving Credit Loans) or A-2 (in
the case of Term Loans) with appropriate insertions as to date and
principal amount (each, a "Note"). Thereafter, the Loans evidenced by
any such Note and interest thereon shall at all times (including after
assignment pursuant to subsection 9.6) be represented by one or more
promissory notes in such form payable to the order of the payee named
therein and its registered assigns.
2.5 Optional Prepayments. (a) The Borrower may prepay
the Revolving Credit Loans, in whole or in part, without premium or
penalty, upon giving irrevocable notice to the Administrative Agent
(which notice must be received by the Administrative Agent prior to
2:00 P.M., New York City time, (i) three Business Days prior to the
date of prepayment, if all or any part of the Revolving Credit Loans to
be prepaid are Eurodollar Loans, or (ii) one Business Day prior to the
date of prepayment, otherwise), specifying the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans, ABR Loans
or a combination thereof, and, if of a combination thereof, the amount
allocable to each. Upon receipt of any such notice the Administrative
Agent shall promptly notify each Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on
the date specified therein, together with any amounts payable pursuant
to subsection 2.16 and accrued interest to such date on the amount
prepaid. Partial prepayments pursuant to this subsection shall be in an
aggregate principal amount equal to $10,000,000 or an integral multiple
of $1,000,000 in excess thereof.
(b) The Borrower may at any time after the date which
is one year after the Closing Date prepay the Term Loans, in whole or
in part, without premium or penalty, upon giving irrevocable notice to
the Administrative Agent (which notice must be received by the
Administrative Agent prior to 2:00 P.M., New York City time, (i) three
Business Days prior to the date of prepayment, if all or any part of
the Term Loans to be prepaid are Eurodollar Loans, or (ii) one Business
Day prior to the date of prepayment, otherwise), specifying the date
and amount of prepayment and whether the prepayment is of Eurodollar
Loans, ABR Loans or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof. If
any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 2.16 and accrued interest to
such date on the amount prepaid. Partial prepayments pursuant to this
subsection shall be in an aggregate principal amount equal to
$10,000,000 or an integral multiple of $1,000,000 in excess thereof.
Each such prepayment shall be applied ratably to reduce the then
remaining installments described in subsection 2.7(b).
2.6 Optional Termination or Reduction of Commitments.
(a) The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to terminate the
Revolving Credit Commitments or, from time to time, to reduce the
amount of the Revolving Credit Commitments. Any such reduction shall be
in an aggregate amount equal to $10,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall reduce permanently the Revolving
Credit Commitments then in effect; and such reductions shall be applied
ratably to reduce the then remaining installments described in
subsection 2.7(a).
(b) The Borrower shall have the right, upon not less
than three Business Days' notice to the Administrative Agent, to
terminate the Term Loan Commitments or, from time to time, to reduce
the amount of the Term Loan Commitments. Any such reduction shall be in
an amount equal to $10,000,000 or an integral multiple of $1,000,000 in
excess thereof and shall reduce permanently the Term Loan Commitments
then in effect.
2.7 Automatic Commitment Reductions; Repayment of
Term Loans; Mandatory Prepayments. (a) The Revolving Credit Commitments
shall automatically and permanently reduce in fifteen consecutive
quarterly installments, occurring on the date that is five years and
three months after the Closing Date and on each successive date
thereafter which is three months after the preceding installment date,
in an aggregate amount (which amounts shall be subject to reduction as
provided herein) for each installment equal to the amount set forth
opposite such installment below:
Installment Reduction Amount
1-4 $ 75,000,000
5-8 $ 100,000,000
9-12 $ 150,000,000
13-14 $ 175,000,000
15 $ 50,000,000
(b) The Term Loans shall be repaid in sixteen
consecutively quarterly installments, payable on the date that is five
years and three months after the Closing Date and on each successive
date thereafter which is three months after the preceding installment
date, in an aggregate principal amount of $125,000 for each of the
first fifteen installments (which amounts shall be subject to reduction
as provided herein) and the remaining aggregate outstanding principal
amount of the Term Loans for the last installment.
(c) The Revolving Credit Commitments shall
automatically and permanently reduce and the Term Loans shall be
prepaid on the dates and in the amounts required by subsections 6.6(c)
and (d), 6.7(c), 6.8(c) and (d) and 6.11. Any such reductions and
prepayments required by this paragraph (c) shall be applied ratably to
reduce the then remaining installments described in subsections 2.7(a)
and (b).
(d) The Revolving Credit Commitments shall
automatically and permanently reduce and the Term Loans shall be
prepaid in an aggregate amount equal to 50% of the Excess Cash Flow for
each fiscal year commencing with the fiscal year ending December 31,
2000. The reduction and prepayment required by this paragraph for each
such fiscal year shall occur automatically, and the Borrower shall make
each prepayment required by this paragraph for each such fiscal year,
on the tenth Business Day after the date of delivery of the financial
statements for such fiscal year pursuant to subsection 5.1(a) and shall
be applied ratably to reduce the then remaining installments described
in subsections 2.7(a) and (b).
(e) Any termination or reduction of Commitments
pursuant to subsection 2.6 or this subsection or otherwise shall be
accompanied (i) in the case of the Revolving Credit Commitments, by
prepayment of the Revolving Credit Loans (together in each case with
any additional amounts owing under subsection 2.16), to the extent, if
any, that the amount of the Revolving Credit Loans then outstanding
exceeds the amount of the Revolving Credit Commitments as so reduced
and (ii) in the case of any such Commitments, by payment of any accrued
and unpaid commitment fees on the amount of such Commitments so
terminated or reduced to but excluding the date of such termination or
reduction.
(f) If the Borrower or its Restricted Subsidiaries
shall receive any Net Cash Proceeds from any Asset Sale which are not
required to be deposited in the Asset Sale Proceeds Sub-Account, the
Borrower will prepay the Revolving Credit Loans by the amount of such
Net Cash Proceeds on the first date or dates after the date of such
receipt on which the Borrower may make such prepayment without
incurring an obligation to pay any additional amounts pursuant to
subsection 2.16. Amounts prepaid pursuant to this paragraph (f) may be
reborrowed only for the purpose of purchasing property or assets to be
utilized in connection with the Borrower's national wireless network
or, if not utilized for the foregoing purpose, for the purpose of
providing sufficient funds to effect a Pro Rata Prepayment/ Commitment
Reduction required by subsection 6.6 in connection with such Asset
Sale.
2.8 Conversion and Continuation Options. (a) The
Borrower may elect from time to time to convert Eurodollar Loans to ABR
Loans by giving the Administrative Agent at least one Business Days'
prior irrevocable notice of such election, provided that if any such
conversion of Eurodollar Loans is made on a day which is not the last
day of an Interest Period with respect thereto the Borrower shall pay
to the Administrative Agent on the date of such conversion accrued
interest to the date of such conversion on the principal amount
converted together with any amounts payable pursuant to subsection
2.16. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent at least three
Business Days' prior irrevocable notice of such election. Any such
notice of conversion to Eurodollar Loans shall specify the length of
the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Administrative Agent shall promptly notify each
Lender thereof. All or any part of outstanding Eurodollar Loans and ABR
Loans may be converted as provided herein, provided that (i) no Loan
may be converted into a Eurodollar Loan if a Default or Event of
Default has occurred and is continuing and the Administrative Agent or
the Required Lenders have determined that such a conversion is not
appropriate and (ii) no Revolving Credit Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the Revolving
Credit Termination Date, and no Term Loan may be converted into a
Eurodollar Loan after the date that is one month prior to the final
maturity of the Term Loans.
(b) Any Eurodollar Loans may be continued as such
upon the expiration of the then current Interest Period with respect
thereto by the Borrower giving notice to the Administrative Agent, in
accordance with the applicable provisions of the term "Interest Period"
set forth in subsection 1.1, of the length of the next Interest Period
to be applicable to such Loans, provided that (i) no Eurodollar Loan
may be continued as such if a Default or Event of Default has occurred
and is continuing and the Administrative Agent or the Required Lenders
have determined that such a continuation is not appropriate and (ii) no
Eurodollar Loan may be continued as such after the date that is one
month prior to (A) the Revolving Credit Termination Date, in the case
of Revolving Credit Loans or (B) the final maturity of the Term Loans,
in the case of Term Loans, and provided, further, that if the Borrower
shall fail to give such notice or if such continuation is not permitted
pursuant to the immediately preceding proviso such Loans shall be
automatically converted to ABR Loans on the last day of such then
expiring Interest Period.
2.9 Interest Rates and Payment Dates. (a) Each
Eurodollar Loan shall bear interest for each day during each Interest
Period with respect thereto, payable in arrears on each Interest
Payment Date, at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable Margin.
(b) Each ABR Loan shall bear interest for each day,
payable in arrears on each Interest Payment Date, at a rate per annum
equal to the ABR in effect on such day plus the Applicable Margin.
(c) If all or a portion of (i) any principal of any
Loan, (ii) any interest payable thereon or (iii) any commitment fee or
other amount payable hereunder shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue
principal, interest, fee or other amount shall bear interest at a rate
per annum which is (A) in the case of principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of
this subsection plus 2% or (B) in the case of any such overdue
interest, fee or other amount, the rate described in paragraph (b) of
this subsection plus 2%, in each case from the date of such non-payment
until such overdue principal, interest, fee or other amount is paid in
full (as well after as before judgment).
2.10 Computation of Interest and Fees. (a) Commitment
fees and, whenever it is calculated on the basis of the ABR, interest
shall be calculated on the basis of a 365- (or 366-, as the case may
be) day year for the actual days elapsed; otherwise, interest shall be
calculated on the basis of a 360-day year for the actual days elapsed.
The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate.
Any change in the interest rate on a Loan resulting from a change in
the ABR shall become effective as of the opening of business on the day
on which such change becomes effective. The Administrative Agent shall
as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the
request of the Borrower, deliver to the Borrower a statement showing
the quotations used by the Administrative Agent in determining any
interest rate based upon quotations from Reference Lenders pursuant to
subsection 2.9(a).
(c) If any Reference Lender shall for any reason no
longer have a Commitment or any Loans, such Reference Lender shall
thereupon cease to be a Reference Lender, and if, as a result, there
shall only be one Reference Lender remaining, the Administrative Agent
(after consultation with the Borrower and the Lenders) shall, by notice
to the Borrower and the Lenders, designate another Lender as a
Reference Lender so that there shall at all times be at least two
Reference Lenders.
(d) Each Reference Lender shall use its best efforts
to furnish quotations of rates to the Administrative Agent as
contemplated hereby. If any of the Reference Lenders shall be unable or
shall otherwise fail to supply such rates to the Administrative Agent
upon its request, the rate of interest shall, subject to the provisions
of subsection 2.11, be determined on the basis of the quotations of the
remaining Reference Lenders or Reference Lender.
2.11 Inability to Determine Interest Rate. If prior
to the first day of any Interest Period (a) the Administrative Agent
shall have determined (which determination shall be conclusive and
binding upon the Borrower) that, by reason of circumstances affecting
the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period or (b) the
Administrative Agent shall have received notice from the Requisite
Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period, then the
Administrative Agent shall give telecopy or telephonic notice thereof
to the Borrower and the Lenders as soon as practicable thereafter. If
such notice is given, (i) any Eurodollar Loans requested to be made on
the first day of such Interest Period shall be made as ABR Loans, (ii)
any Loans that were to have been converted on the first day of such
Interest Period to Eurodollar Loans shall be continued as ABR Loans and
(iii) any outstanding Eurodollar Loans shall be converted, on the first
day of such Interest Period, to ABR Loans. So long as such notice shall
not have been withdrawn, the Administrative Agent shall use reasonable
efforts to determine whether or not the circumstances which shall have
caused such notice to be given continue to exist, and, if the
Administrative Agent or the Requisite Lenders, as the case may be,
shall at any time determine that such circumstances no longer exist,
the Administrative Agent shall, as soon as practicable thereafter,
notify the Lenders and the Borrower that the Administrative Agent is
withdrawing such notice. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or
continued as such, nor shall the Borrower have the right to convert
Loans to Eurodollar Loans.
2.12 Pro Rata Treatment and Payments. (a) Except as
provided in subsection 2.18, each borrowing by the Borrower and any
reduction of the Revolving Credit Commitments, Term Loan I Commitments
or Term Loan II Commitments of the Lenders shall be made pro rata among
the Lenders based on their respective Revolving Credit Commitments,
Term Loan I Commitments or Term Loan II Commitments, as the case may
be. Each payment by the Borrower on account of any commitment fee
hereunder shall be distributed pro rata among the Lenders based on (i)
their respective Available Commitments for each day during the period
for which such payment is made and (iii) the Commitment Fee Rate in
effect on each such day. Except as provided in subsection 2.17(b) or
2.18, each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans,
Tranche I Term Loans or Tranche II Term Loans shall be made pro rata
among the Lenders according to the respective outstanding principal
amounts of the Revolving Credit Loans, Tranche I Term Loans or Tranche
II Term Loans then held by the Lenders. All payments (including
prepayments) to be made by the Borrower hereunder, whether on account
of principal, interest or otherwise, shall be made without set off or
counterclaim and shall be made prior to 12:00 Noon, New York City time,
on the due date thereof to the Administrative Agent, for the account of
the Lenders, at the Administrative Agent's Account, in Dollars and in
immediately available funds. The Administrative Agent shall distribute
such payments to the Lenders promptly upon receipt in like funds as
received. If any payment (including any prepayment) hereunder becomes
due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender
will not make the amount that would constitute its Percentage of such
borrowing available to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such amount available to
the Administrative Agent, and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender
shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any
amounts owing under this subsection shall be conclusive in the absence
of manifest error. If such Lender's Percentage of such borrowing is not
made available to the Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the
rate per annum applicable to ABR Loans hereunder, on demand, from the
Borrower.
2.13 Illegality. Notwithstanding any other provision
herein, if the adoption after the date hereof of or any change after
the date hereof in any Requirement of Law or in the interpretation or
application thereof by any Governmental Authority shall make it
unlawful for any Lender to make or maintain Eurodollar Loans as
contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make Eurodollar Loans, continue Eurodollar Loans as such
and convert ABR Loans to Eurodollar Loans shall forthwith be cancelled
and (b) such Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to ABR Loans on the respective
last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last
day of the then current Interest Period with respect thereto, the
Borrower shall pay to such Lender such amounts, if any, as may be
required pursuant to subsection 2.16.
2.14 Requirements of Law. (a) If the adoption after
the date hereof of, or any change after the date hereof in, any
Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not
having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement or any Eurodollar
Loan or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes
covered by subsection 2.15 and taxes imposed on the overall
net income of such Lender by the jurisdiction under the laws
of which it is organized or the jurisdiction in which its
principal office is located or in which its lending office
applicable hereto is located); or
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in
the determination of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condi-
tion;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans or to
reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrower shall promptly pay such Lender such additional
amount or amounts as will compensate such Lender for such increased
cost or reduced amount receivable.
(b) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding capital
adequacy or in the interpretation or application thereof by any
Governmental Authority or compliance by such Lender or any Person
controlling such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) from any Governmental
Authority, in each case made subsequent to the date hereof, shall have
the effect of reducing the rate of return on such Lender's or such
Person's capital as a consequence of its obligations hereunder to a
level below that which such Lender or such Person could have achieved
but for such adoption, change or compliance (taking into consideration
such Lender's or such Person's policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from
time to time, within 10 Business Days after receipt by the Borrower of
such Lender's written demand (with a copy to the Administrative Agent),
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any
additional amounts pursuant to this subsection 2.14, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the
event by reason of which it has become so entitled; provided that the
Borrower shall not be required to compensate a Lender pursuant to this
subsection for any additional costs incurred more than three months
prior to the date on which such Lender notifies the Borrower of such
event giving rise to such additional costs and of such Lender's
intention to claim compensation therefor; and provided, further, that,
if any adoption or change of any Requirement in Law or other event
giving rise to such claim for additional compensation is retroactive,
then the three-month period referred to above shall be extended to
include the period of retroactive effect thereof. A certificate as to
any additional amounts payable pursuant to this subsection, accompanied
by reasonably detailed information with respect to the method of
calculating such additional amounts, submitted by such Lender to the
Borrower (with a copy to the Administrative Agent) shall be conclusive
absent manifest error. The agreements in this subsection shall survive
the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.15 Taxes. (a) All payments made by the Borrower
under this Agreement and any Notes shall be made free and clear of, and
without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges,
fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes imposed in lieu of net
income taxes imposed on the Administrative Agent or any Lender (or
Transferee) as a result of a present or former connection between the
Administrative Agent or such Lender (or Transferee) and the
jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent
or such Lender (or Transferee) having executed, delivered or performed
its obligations or received a payment under, or enforced, this
Agreement or any Note or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings ("Non-Excluded Taxes") are required to be withheld from
any amounts payable to the Administrative Agent or any Lender (or
Transferee) hereunder or under any Note, (i) the Borrower will pay such
Non-Excluded Taxes to the relevant Governmental Authority or political
subdivision imposing such tax and (ii) the amounts so payable to the
Administrative Agent or such Lender (or Transferee) shall be increased
to the extent necessary to yield to the Administrative Agent or such
Lender (or Transferee) (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement, provided, however, that the
Borrower shall not be required to increase any such amounts payable to
any Lender that is not organized under the laws of the United States of
America or a state thereof (a "Non-U.S. Lender") if such Lender fails
to comply with the requirements of paragraph (b) or (c) of this
subsection. Whenever any Non-Excluded Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of such
Lender (or Transferee), as the case may be, a certified copy of an
original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the
Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative
Agent and the Lenders for any incremental taxes, interest or penalties
that may become payable by the Administrative Agent or any Lender (or
Transferee) as a result of any such failure. The Borrower shall
indemnify each Lender (or Transferee) and the Administrative Agent for
the amount of Non-Excluded Taxes paid by such Lender (or Transferee) or
the Administrative Agent, as the case may be, and any penalties,
interest and expenses arising therefrom or with respect thereto. The
agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder; provided, however, that the Borrower shall not be required
to indemnify any Non-U.S. Lender that fails to comply with the
requirements of paragraph (b) or (c) of this subsection.
(b) Each Non-U.S. Lender shall:
(i) in the case of a Lender (or
Transferee) that is a "bank" under Section 881
(c)(3)(A) of the Code;
(A) on or before the date
on which the first payment becomes payable
to it hereunder or under any Note (or, in
the case of a Participant, on or before the
date such Participant becomes a Participant
hereunder) and on or before the date, if
any, such Lender (or Transferee) changes its
applicable lending office by designating a
different lending office (a "New Lending
Office") deliver to the Borrower and the
Administrative Agent (y) two properly
completed and duly executed copies of United
States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the
case may be, and (z) an Internal Revenue
Service Form W-8 or W-9, or successor
applicable form, as the case may be;
(B) deliver to the Borrower
and the Administrative Agent two further
properly completed and duly executed copies
of any such form or certification on or
before the date that any such form or
certification expires or becomes obsolete
and after the occurrence of any event
requiring a change in the most recent form
previously delivered by it to the Borrower
or upon the reasonable request of the
Borrower or the Administrative Agent; and
(C) obtain such extensions
of time for filing and completing such forms
or certifications as may reasonably be
requested by the Borrower;
(ii) in the case of a Lender or
a Transferee that is not a "bank" under Section
881(c)(3)(A) of the Code:
(A) on or before the date
on which the first payment becomes payable
to it hereunder or under any Note (or, in
the case of a Participant, on or before the
date such Participant becomes a Participant
hereunder) deliver to the Borrower and the
Administrative Agent (I) a statement under
penalties of perjury that such Lender (x) is
not a "bank" under Section 881(c)(3)(A) of
the Code, is not subject to regulatory or
other legal requirements as a bank in any
jurisdiction, and has not been treated as a
bank for purposes of any tax, securities law
or other filing or submission made to any
Governmental Authority, any application made
to a rating agency or qualification for any
exemption from tax, securities law or other
legal requirements, (y) is not a 10-percent
shareholder of the Borrower within the
meaning of Section 881(c)(3)(B) of the Code
and (z) is not a controlled foreign
corporation receiving interest from a
related person within the meaning of Section
881(c)(3)(C) of the Code and (II) a properly
completed and duly executed Internal Revenue
Service Form W-8 or applicable successor
form;
(B) deliver to the Borrower
and the Administrative Agent two further
properly completed and duly executed copies
of said Form W-8, or any successor
applicable form on or before the date that
any such Form W-8 expires or becomes
obsolete or after the occurrence of any
event requiring a change in the most recent
form previously delivered by it to the
Borrower or upon the reasonable request of
the Borrower; and
(C) obtain such extensions
of time for filing and completing such forms
or certifications as may be reasonably
requested by the Borrower or the
Administrative Agent;
unless in any such case any change in treaty, law or regulation has
occurred subsequent to the date such Lender (or Transferee) became a
party to this Agreement (or in the case of a Participant, the date such
Participant became a Participant hereunder) which renders all such
forms inapplicable or which would prevent such Lender from properly
completing and executing any such form with respect to it and such
Lender so advises the Borrower and the Administrative Agent in writing
no later than 15 calendar days before any payment hereunder or under
any Note is due. Each such Lender (and each Transferee) shall certify
(i) in the case of a Form 1001 or 4224, that it is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of a Form W-8
or W-9 delivered pursuant to subsection 2.15(b)(i), that it is entitled
to an exemption from United States backup withholding tax. Each Person
that shall become a Lender or a Participant pursuant to subsection 9.6
shall, upon the effectiveness of the related transfer, provide all of
the forms and statements required pursuant to this subsection, provided
that, in the case of a Participant, such Participant shall furnish all
such required forms and statements to the Lender from which the related
participation shall have been purchased.
(c) Each Lender (and the Administrative Agent with
respect to payments to the Administrative Agent for its own account)
agrees that it will (i) take all reasonable actions by all usual means
to maintain all exemptions, if any, available to it from United States
withholding taxes (whether available by treaty, existing administrative
waiver, by virtue of the location of any Lender's applicable lending
office or otherwise) and (ii) otherwise reasonably cooperate with the
Borrower to minimize amounts payable by the Borrower under this
subsection.
(d) If any Lender shall receive a credit or refund
from a taxing authority with respect to, and actually resulting from,
an amount of Non-Excluded Taxes actually paid to or on behalf of such
Lender by the Borrower including any interest received thereon (a "Tax
Credit"), such Lender shall promptly notify the Borrower of such Tax
Credit. If such Tax Credit is received by such Lender in the form of
cash, such Lender shall promptly pay to the Borrower the amount so
received with respect to the Tax Credit. If such Tax Credit is not
received by such Lender in the form of cash, such Lender shall pay the
amount of such Tax Credit not later than the time prescribed by
applicable law for filing the return (including extensions of time) for
such Lender's taxable period which includes the period in which such
Lender receives the economic benefit of such Tax Credit. In any event,
the amount of any Tax Credit payable by a Lender to the Borrower
pursuant to this paragraph shall not exceed the actual amount of cash
refunded to, or credits received and usable by, such Lender from a
taxing authority. In determining the amount of any Tax Credit, a Lender
may use such apportionment and attribution rules as such Lender
customarily employs in allocating taxes among its various operations
and income sources, and such determination shall be presumptively
correct. The Borrower further agrees promptly to return to a Lender the
amount paid to the Borrower with respect to a Tax Credit by such Lender
if such Lender is required to repay, or is determined to be ineligible
for, a Tax Credit for such amount.
2.16 Indemnity. The Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or expense which
such Lender may sustain or incur as a consequence of (a) failure by the
Borrower to make a borrowing of, conversion into or continuation of
Eurodollar Loans after the Borrower has given a notice requesting the
same in accordance with the provisions of this Agreement, (b) failure
by the Borrower to make any prepayment of Eurodollar Loans after the
Borrower has given a notice thereof in accordance with the provisions
of this Agreement or (c) the making of a prepayment of or conversion
from Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto. Such indemnification shall be in an amount
equal to the excess, if any, of (i) the amount of interest which would
have accrued on the amount so prepaid or converted, or not so borrowed,
converted or continued, for the period from the date of such prepayment
or conversion or of such failure to borrow, convert or continue to the
last day of such Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable
rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount
on deposit for a comparable period with leading banks in the interbank
eurodollar market. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.17 Change of Lending Office; Mandatory Assignment
or Prepayment. (a) Each Lender agrees that if it makes any demand for
payment under subsection 2.14 or 2.15(a), or if any adoption or change
of the type described in subsection 2.13 shall occur with respect to
it, it will use reasonable efforts (consistent with its generally
applicable internal policy and its legal and regulatory restrictions
and so long as such efforts would not in its reasonable judgment be
materially disadvantageous to it) to designate a different lending
office if the making of such a designation would reduce or obviate the
need for the Borrower to make payments under subsection 2.14 or 2.15(a)
or would eliminate or reduce the effect of any adoption or change
described in subsection 2.13.
(b) If the Borrower shall be required to pay any
additional amounts or other payments to any Lender in accordance with
subsection 2.14 or 2.15(a) or if any Lender shall, in accordance with
subsection 2.13, no longer be obligated to make or maintain Eurodollar
Loans hereunder, the Borrower may, at its own expense and in its sole
discretion, unless such Lender has theretofore removed or cured the
conditions which result in the obligation to pay such additional
amounts or other payments or which result in such illegality, as the
case may be, after reasonable notice to the Administrative Agent and
such Lender, require such Lender to transfer or assign, in whole or in
part, without recourse (in accordance with subsection 9.6), all or part
of its interests, rights and obligations under this Agreement to
another bank or financial institution reasonably acceptable to the
Administrative Agent (provided that the Borrower, with the full
cooperation of such Lender, can identify a bank or financial
institution reasonably acceptable to the Administrative Agent which is
ready, willing and able to be an Assignee with respect to thereto)
which shall assume such assigned obligations (which Assignee may be
another Lender, if such Assignee Lender accepts such assignment);
provided that (A) the Assignee or the Borrower, as the case may be,
shall have paid to such Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the
Loans made by it hereunder and all other amounts owed to it hereunder,
including, without limitation, any amounts owing pursuant to subsection
2.16 and any amounts that would be owing under said subsection if such
Loans were prepaid on the date of such assignment, and (B) such
assignment does not conflict with any law, rule or regulation or order
of any Governmental Authority.
2.18 Treatment of Certain Prepayments. (a)
Notwithstanding anything to the contrary in this Agreement, in the
event that (i) the Borrower shall be required pursuant to the
provisions of a Bank Credit Facility (other than this Agreement), a
Vendor Credit Facility or any instrument governing any other
Indebtedness of the Borrower to offer to apply any specified amount
toward the prepayment of the Term Loans or the reduction of the
Revolving Credit Commitments or (ii) the Borrower is required to make
any Pro Rata Payment Offer in a specified amount pursuant to the
provisions of this Agreement, the Borrower may, at its option, either
apply such specified amount toward prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments pro rata among the
Lenders in accordance with the amounts of their respective Term Loans
and Revolving Credit Commitments or follow the procedures set forth in
this subsection. Not less than 10 nor more than 20 Business Days prior
to the date (a "Specified Prepayment/Reduction Date") on which any such
prepayment or Revolving Credit Commitment reduction is scheduled to be
made, the Borrower shall deliver a Prepayment/Reduction Offer Notice to
the Administrative Agent, which shall promptly thereafter deliver a
copy thereof to each Lender. Each Lender receiving such
Prepayment/Reduction Offer Notice shall indicate its acceptance or
rejection of such offer (and, in the case of its acceptance, its
Prepayment Acceptance Amount and/or its Reduction Acceptance Amount, as
applicable) by delivering a Prepayment/Reduction Offer Response Notice
to the Administrative Agent and the Borrower no later than four
Business Days prior to the Specified Prepayment/Reduction Date set
forth in the applicable Prepayment/Reduction Offer Notice; provided
that the failure by such Lender to deliver a Prepayment/Reduction Offer
Response Notice on or before the fourth Business Day prior to the
Specified Prepayment/Reduction Date shall be deemed to constitute the
acceptance of the full amount of such offer by such Lender. On such
Specified Prepayment/Reduction Date, the Borrower shall prepay each
Lender's Term Loans and/or reduce each Lender's Revolving Credit
Commitment, as applicable, in an amount equal to such Lender's
Prepayment Share and/or its Reduction Share, as applicable. The
Administrative Agent shall calculate the amounts of the Term Loan
prepayments or Revolving Credit Commitment reductions applicable to the
respective Lenders required by this subsection.
(b) If at any time, as a result of the operation of
this subsection, the Revolving Credit Loans shall no longer be held pro
rata among the Lenders in accordance with their then respective
Revolving Credit Commitments, the Borrower will, as soon as practicable
thereafter as will not result in an obligation to pay additional
amounts pursuant to subsection 2.16, make such prepayments and/or
borrowings (which shall, notwithstanding anything in this Agreement to
the contrary, be on a non-pro rata basis) as shall result in all
Revolving Credit Loans, and all Revolving Credit Loans having the same
Interest Period, being held pro rata among the Lenders in accordance
with their respective Revolving Credit Commitments.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to
enter into this Agreement and to make the Loans, the Borrower hereby
represents and warrants to the Administrative Agent and each Lender
that:
3.1 Financial Condition. (a) The audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at
December 31, 1995, copies of which have heretofore been furnished to
the Lenders, was prepared in accordance with GAAP and presents fairly
the consolidated financial condition of the Borrower and its
consolidated Subsidiaries as at such date. Such balance sheet and the
notes thereto disclose all material liabilities of the Borrower and its
consolidated Subsidiaries as at such date.
(b) The detailed projections contained in the
Borrower's Confidential Information Memorandum dated July 1996 (the
"Information Memorandum") were prepared in good faith on the basis of
the assumptions described in the Information Memorandum, which
assumptions were believed by the Borrower in good faith to be
reasonable in light of conditions existing at the time of preparation
thereof, and the Borrower has no knowledge of any event or circumstance
that would cause it to change any such assumptions in any material
respect as of the date hereof, it being understood by the
Administrative Agent and the Lenders that actual results may vary from
the projected results contained therein.
3.2 No Change. Since December 31, 1995, there has
been no development or event, and no change in the business, assets,
results of operations, financial condition or prospects of the Borrower
and the Restricted Subsidiaries, taken as a whole, which has had or
could reasonably be expected to have a Material Adverse Effect, except
for operating losses contemplated by the Borrower's Business Plan
Overview dated March 1996 which has previously been delivered to the
Administrative Agent.
3.3 Existence; Compliance with Law. Each of the
Borrower and its Restricted Subsidiaries (a) is duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
formation, (b) has the power and authority, and has in effect all
permits, approvals and other authorizations from all applicable
Governmental Authorities, necessary to own and operate its property, to
lease the property it operates as lessee and to conduct the business in
which it is currently engaged and to own and operate Systems in the
areas for which it has Licenses, (c) is duly qualified to do business
and in good standing in each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification and (d) is in compliance with all Requirements of Law,
except to the extent that the failure of any of the statements set
forth in subsection 3.3(b), (c) or (d) to be true and correct could not
reasonably be expected to have a Material Adverse Effect.
3.4 Power; Authorization; Enforceable Obligations.
The Borrower has the power to make, deliver and perform this Agreement
and to borrow hereunder and has taken all necessary partnership action
to authorize the borrowings on the terms and conditions of this
Agreement and to authorize the execution, delivery and performance of
this Agreement. No consent or authorization of, filing with, notice to
or other act by or in respect of, any Governmental Authority or any
other Person is required of the Borrower in connection with the
borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of this Agreement other than those filings
required to be made in connection with the perfection of the Liens
created by the Security Documents. This Agreement has been duly
executed and delivered on behalf of the Borrower. This Agreement
constitutes a legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms, subject
to the effects of bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
3.5 No Legal Bar. The execution, delivery and
performance of this Agreement, the borrowings hereunder and the use of
the proceeds thereof will not violate, result in a default under, or
give rise to any acceleration, prepayment, repurchase or redemption
obligation of the Borrower or any of its Restricted Subsidiaries as a
result of, any Requirement of Law or Contractual Obligation of the
Borrower or of any of its Restricted Subsidiaries and will not result
in, or require, the creation or imposition of any Lien on any of its or
their respective properties or revenues pursuant to any such
Requirement of Law or Contractual Obligation, other than the Liens
created by the Security Documents.
3.6 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority (other than the FCC, matters with respect to which are
covered by subsection 3.22(b)) is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its
Restricted Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of the Loan Documents or
(b) which could reasonably be expected to have a Material Adverse
Effect.
3.7 No Default. Neither the Borrower nor any of its
Restricted Subsidiaries is in default under or with respect to any of
its Contractual Obligations in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each of the
Borrower and its Restricted Subsidiaries has good and marketable title
in fee simple to, or a valid leasehold interest in, all its material
real property, and good title to, or a valid leasehold interest in, all
its other material property (including, without limitation, its
partnership interests in the Special Purpose Subsidiaries), and none of
such property is subject to any Lien except as permitted by subsection
6.3.
3.9 Intellectual Property. The Borrower and each of
its Restricted Subsidiaries owns, or is licensed to use, all patents,
trademarks, tradenames, service marks, copyrights, technology, know-how
and processes used in or necessary for the conduct of its business
except for those the failure to own or license which could not
reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending
(or, to the knowledge of the Borrower, threatened) by any Person
challenging or questioning the use of any Intellectual Property or the
validity or effectiveness of any Intellectual Property, nor does the
Borrower know of any valid basis for any such claim, except for any
such claim which could not reasonably be expected to have a Material
Adverse Effect. The use of the Intellectual Property by the Borrower
and its Restricted Subsidiaries does not infringe on the rights of any
Person, except for such infringements that could not reasonably be
expected to have a Material Adverse Effect.
3.10 Taxes. Each of the Borrower and its Restricted
Subsidiaries has filed or caused to be filed all tax returns which, to
the knowledge of the Borrower, are required to be filed and has paid
all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority which have become due and payable (other than
any the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
Borrower or its Restricted Subsidiaries, as the case may be).
3.11 Federal Regulations. No part of the proceeds of
any Loans will be used in any manner which would result in a violation
of Regulation G or Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect
or to buy or carry "margin stock" (as defined thereunder) or to
refinance any Indebtedness incurred for such purpose.
3.12 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA), whether or not waived, has occurred
during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single
Employer Plan, and each Single Employer Plan has complied in all
respects with the applicable provisions of ERISA and the Code, except
with respect to any such event or failure to comply where the liability
which could reasonably be expected to be incurred would not have a
Material Adverse Effect. No termination of a Single Employer Plan whose
accrued benefits exceeded the assets thereof has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, and neither the Borrower nor
any Commonly Controlled Entity has received a notice from the PBGC or a
plan administrator of an intention to terminate any Single Employer
Plan or to appoint a trustee to administer any Single Employer Plan,
during such five-year period. The present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made, exceed
the value of the assets of such Plan allocable to such accrued benefits
by an amount which if such Plan then terminated could reasonably be
expected to have a Material Adverse Effect. Neither the Borrower nor
any Commonly Controlled Entity has had a complete or partial withdrawal
from any Multiemployer Plan, and neither the Borrower nor any Commonly
Controlled Entity would become subject to any liability under ERISA if
the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most
closely preceding the date on which this representation is made or
deemed made, which in any event could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any Commonly
Controlled Entity has received notice that any such Multiemployer Plan
is in Reorganization or Insolvent, where the liability resulting
therefrom could reasonably be expected to have a Material Adverse
Effect.
3.13 Investment Company Act; Other Regulations. The
Borrower is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended. The Borrower is not subject to regulation under any Federal
or state statute or regulation which limits its ability to incur
Indebtedness as contemplated hereby.
3.14 Subsidiaries; Parents. (a) The following
constitute all the Subsidiaries of the Borrower as of the date hereof:
(a) WirelessCo (the sole general partner of which is the Borrower and
the sole limited partner of which is MinorCo), (b) EquipmentCo (the
sole general partner of which is the Borrower and the sole limited
partner of which is MinorCo), (c) RealtyCo (the sole general partner of
which is the Borrower and the sole limited partner of which is MinorCo)
and (d) Sprint Spectrum Finance Corporation, a Delaware corporation and
a Wholly Owned Subsidiary of the Borrower. Sprint Spectrum Finance
Corporation does not own or lease any material assets on the date
hereof.
(b) The sole general partner of the Borrower is
Holding, and the sole limited partner of the Borrower is MinorCo. As of
the date hereof, Sprint Enterprises, L.P. (having a 40% economic
interest in each of Holding and MinorCo), TCI Telephony Services, Inc.
(having a 30% economic interest in each of Holding and MinorCo),
Comcast Telephony Services (having a 15% economic interest in each of
Holding and MinorCo) and Cox Telephony Partnership (having a 15%
economic interest in each of Holding and MinorCo) are each general and
limited partners of Holding and MinorCo, and there are no other
partners of Holding or MinorCo. Sprint Enterprises, L.P. is a wholly
owned Subsidiary of Sprint Corporation; TCI Telephony Services, Inc. is
a wholly owned Subsidiary of Tele-Communications, Inc.; Comcast
Telephony Services is a wholly owned Subsidiary of Comcast Corporation;
and Cox Telephony Partnership is a wholly owned Subsidiary of Cox
Communications, Inc.
(c) As of the date hereof, there is no issued or
outstanding Capital Stock of the Borrower or any of its Subsidiaries
other than the general partnership interests and limited partnership
interests described in subsections 3.14(a) and (b). All outstanding
Capital Stock of each Restricted Subsidiary is, except as described in
subsection 3.14(a), owned by the Borrower and is free and clear of all
Liens whatsoever (other than Liens created by the Security Documents).
All of the Capital Stock of the Borrower is owned by the Persons
described in subsection 3.14(b) and is free and clear of all Liens
whatsoever.
(d) As of the date hereof: (i) all Licenses which are
directly or indirectly owned by the Borrower or any of its Restricted
Subsidiaries are owned, beneficially and of record, by WirelessCo, (ii)
all Real Estate Assets (other than those which constitute Excluded
Assets) which are directly or indirectly held by the Borrower or any of
its Restricted Subsidiaries are directly held by RealtyCo; and (iii)
all Personal Property Assets (other than those which constitute
Collateral under the Security Documents or Excluded Assets) are
directly owned by EquipmentCo.
3.15 Absence of Material Obligations. None of
WirelessCo, RealtyCo and EquipmentCo has any material obligations or
liabilities other than in connection with (a) the Guarantees, (b) any
lease of real property which RealtyCo has entered into in the ordinary
course of business and other obligations and liabilities incurred in
the ordinary course of business which are incident to being the owner
or lessee of real property, (c) in the case of EquipmentCo, obligations
and liabilities under the Vendor Procurement Contracts, the rights and
benefits of Holding under which have been assigned to it or (d) in the
case of Wireless Co, its obligations to comply with the requirements of
the Licenses.
3.16 Environmental Matters. (a) In the ordinary
course of its business, the Borrower conducts an ongoing review of the
effect of Environmental Laws on the business, operations and properties
of the Borrower and its Restricted Subsidiaries, in the course of which
it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures
required for clean-up or closure of properties presently or previously
owned, any capital or operating expenditures required to achieve or
maintain compliance with environmental protection standards imposed by
law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or
permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat, any costs or
liabilities in connection with off-site disposal of wastes or Hazardous
Substances, and any actual or potential liabilities to third parties,
including employees, and any related costs and expenses). On the basis
of this review, the Borrower has reasonably concluded that such
associated liabilities and costs, including the costs of compliance
with Environmental Laws, could not reasonably be expected to have a
Material Adverse Effect.
(b) The Borrower and its Restricted Subsidiaries have
obtained all Environmental Permits with respect to the facilities and
properties owned, leased or operated by the Borrower or any of its
Restricted Subsidiaries (the "Properties"), and the Borrower and the
Restricted Subsidiaries are in compliance with all Environmental Laws
and all Environmental Permits, except to the extent that such failure
to obtain any Environmental Permits and noncompliance with
Environmental Laws and Environmental Permits could not reasonably be
expected to have a Material Adverse Effect.
(c) There have been no Releases or threatened
Releases at, from, under or proximate to the Properties or otherwise in
connection with the operations of the Borrower or its Restricted
Subsidiaries, which Releases or threatened Releases could reasonably be
expected to have a Material Adverse Effect.
(d) There are no past or present actions, omissions,
activities, events, conditions or circumstances, including the Release,
threatened Release, emission, discharge, generation, treatment, storage
or disposal of Hazardous Substances at, from or under any location,
that will give rise to liability of the Borrower or any of its
Restricted Subsidiaries under any Environmental Law, except to the
extent that such liability could not reasonably be expected to have a
Material Adverse Effect.
3.17 Licenses. (a) On the date hereof, (i) the
Borrower and its Restricted Subsidiaries hold all Licenses necessary on
the date of this Agreement to operate a System in each of the MTA's
listed on Schedule II, (ii) such Licenses have been duly issued by the
FCC, are held by WirelessCo and are in full force and effect and (iii)
the Borrower and its Restricted Subsidiaries are in compliance in all
material respects with all of the provisions of each such License.
(b) The Borrower and its Restricted Subsidiaries hold
all Licenses to operate Systems in MTA's covering at least 120,000,000
Owned Pops, and such Licenses have been duly issued by the FCC, are
held by WirelessCo and are in full force and effect; and the Borrower
and its Restricted Subsidiaries are in compliance in all material
respects with all of the provisions of each such License.
3.18 Use of Proceeds. The Borrower will use the
proceeds of the Loans to finance working capital needs, subscriber
acquisition costs, capital expenditures and other general partnership
purposes of the Borrower and its Restricted Subsidiaries.
3.19 No Burdensome Restrictions. No Requirement of
Law or Contractual Obligation (other than, in the case of clause (b)
below, any restriction in any Secured Instrument on the ability of any
Special Purpose Subsidiary to make cash distributions to the Borrower
at any time when any Default or Event of Default or similar event shall
have occurred and be continuing) applicable to the Borrower or any
Restricted Subsidiary could reasonably be expected to (a) have a
Material Adverse Effect or (b) limit the ability of any Restricted
Subsidiary to pay dividends or to make distributions or advances to the
Borrower or any other Restricted Subsidiary.
3.20 Regulation H. To the extent available, the
Borrower has obtained for all Mortgaged Properties which are located in
a "flood hazard area", as designated in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency, flood insurance
in such total amount as the Administrative Agent has from time to time
reasonably required.
3.21 Accuracy of Disclosure. None of (a) the
Information Memorandum or (b) any other information, report, financial
statement or schedule furnished by or on behalf of the Borrower or any
Subsidiary thereof to the Administrative Agent or any Lender in
connection with the negotiation of any Loan Document or included
therein or delivered pursuant to any Loan Document, taken as a whole,
contains as of the date hereof, any material misstatement of fact or,
as of the date hereof, omits to state any material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided that to the extent any such
information, report, financial statement or schedule was based upon or
constitutes a forecast or projection, the Borrower represents only that
it acted in good faith and utilized reasonable assumptions and due care
in the preparation of such information, report, financial statement or
schedule.
3.22 FCC Compliance. (a) The Borrower and WirelessCo
are in compliance with the Communications Act, except to the extent
that the failure to be in compliance could not reasonably be expected
to have a Material Adverse Effect.
(b) The Borrower has no knowledge of any
investigation, notice of apparent liability, violation, forfeiture or
other order or complaint issued by or before the FCC, or of any other
proceedings (other than proceedings relating to the wireless
communications industries generally) of or before the FCC, which could
reasonably be expected to have a Material Adverse Effect.
(c) No event has occurred which (i) results in, or
after notice or lapse of time or both would result in, revocation,
suspension, adverse modifications, non-renewal, impairment, restriction
or termination of, or order of forfeiture with respect to, any License
in any respect that could reasonably be expected to have a Material
Adverse Effect, or (ii) affects or could reasonably be expected in the
future to affect any of the rights of the Borrower or WirelessCo under
any License in any respect that could reasonably be expected to have a
Material Adverse Effect.
(d) The Borrower and WirelessCo have duly filed in a
timely manner all material filings, reports, applications, documents,
instruments and information required to be filed by it under the
Communications Act, and all such filings were when made true, correct
and complete in all material respects, except to the extent that the
failure of any of the statements made in this paragraph to be true and
correct could not reasonably be expected to have a Material Adverse
Effect.
(e) The Borrower has no reason to believe that
Licenses covering at least 120,000,000 Owned Pops will not be renewed
in the ordinary course.
3.23 Collateral. To the extent required by subsection
5.9, the Trustees hold pursuant to the Security Documents for the
ratable benefit of the Secured Parties a legal, valid, enforceable and
fully perfected Lien on all right, title and interest of the Borrower
and each Restricted Subsidiary in any asset (other than Excluded
Assets) and the proceeds thereof, and none of such assets is subject to
any other Lien (except for Liens permitted by subsection 6.3). None of
the assets held by any Special Purpose Subsidiary is subject to any
Lien other than Liens permitted under subsections 6.3(a), (b), (c),
(d), (e), (j), (k), (l), (m), (n) or (o), and none of the assets held
by WirelessCo is subject to any Lien permitted by subsection 6.3(c) or
(d).
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of the
Lenders to make the initial Loans is subject to the satisfaction of the
following conditions precedent (which satisfaction must occur, if at
all, prior to October 15, 1996):
(a) Credit Agreement. The Administrative Agent shall
have received this Agreement executed and delivered by a duly
authorized officer of the Borrower, with a counterpart for
each Lender and the Administrative Agent.
(b) Capital Contribution Agreement. The
Administrative Agent shall have received the Capital
Contribution Agreement, duly executed by the Borrower and each
Parent, and the Capital Contribution Agreement shall be in
full force and effect.
(c) Vendor Procurement Contracts; Vendor Credit
Facilities. The Administrative Agent shall have received from
the Borrower a conformed copy, certified to be true and
complete (in each case described in clauses (i) through (iv)
below excluding (A) with respect to each Vendor Procurement
Contract described in such clauses, certain provisions
containing proprietary pricing and technological information
that is confidential pursuant to agreements between the
Borrower and the party to such Vendor Procurement Contract and
(B) with respect to each Vendor Credit Facility described in
such clauses, fees and restrictions on the use of proceeds
thereunder to finance items other than equipment provided by
the Vendor party thereto that are confidential pursuant to
agreements between the Borrower and the Vendor party to such
Vendor Credit Facility), of (i) the Vendor Procurement
Contract between the Borrower and Lucent Technologies Inc.,
(ii) the Vendor Procurement Contract between the Borrower and
Northern Telecom Inc., (iii) the Vendor Credit Facility
between the Borrower and Lucent Technologies Inc., (iv) the
Vendor Credit Facility between the Borrower and Northern
Telecom Inc., and (v) any other agreement entered into by the
Borrower or any Restricted Subsidiary that either (A) amends,
waives or otherwise modifies in any material respect any of
the material rights or obligations under such Vendor
Procurement Contracts (other than change orders entered into
in the ordinary course of business) or such Vendor Financing
Agreements or (B) contains material Contractual Obligations
(other than Contractual Obligations entered into in the
ordinary course of business) with Lucent Technologies Inc. or
Northern Telecom Inc., or any of their respective affiliates,
or amends, waives or otherwise modifies in any material
respect any of the material rights or obligations under such
Contractual Obligations (other than change orders entered into
in the ordinary course of business); and each of the
agreements referred to in clauses (i) through (iv) above shall
be in full force and effect, and all conditions precedent to
the initial borrowing under each of the Vendor Credit
Facilities referred to in clauses (iii) and (iv) above shall
have been satisfied.
(d) Trust Agreement. The Administrative Agent shall
have received from the Borrower (i) the Trust Agreement, duly
executed and delivered by the Borrower and the Trustee, (ii)
evidence, in form and substance reasonably satisfactory to the
Administrative Agent, that all documents and other instruments
required to be delivered, and all other actions required to
have been taken, pursuant to subsections 4.1, 4.8(a), 4.9(a)
and 4.10(a) of the Trust Agreement shall have been so
delivered or taken, as the case may be, (iii) conformed copies
of all such documents and instruments referred to in clause
(ii) immediately preceding, and (iv) Acknowledgements and
Consents, in the forms specified by the applicable Security
Document and duly executed by each party thereto other than
the Borrower or a Restricted Subsidiary, in respect of the
Vendor Procurement Contracts (to the extent contemplated by
the Vendor Procurement Contracts), the Trademark License
Agreement and the Special Purpose Subsidiary Funding
Agreements.
(e) Licenses. The Administrative Agent shall have
received from the Borrower photocopies, certified to be true
and complete, of the Licenses described in subsection 3.17,
and all of such Licenses shall be fully paid for and shall be
free and clear of all Liens.
(f) Partnership Agreements; Trademark License
Agreement; Special Purpose Subsidiary Funding Agreements. The
Administrative Agent shall have received from the Borrower
conformed copies, certified to be true and complete, of (i)
the partnership agreements of Holding, MinorCo, the Borrower,
WirelessCo, EquipmentCo and RealtyCo, (ii) the Trademark
License Agreement and (iii) the Special Purpose Subsidiary
Funding Agreements, each of which shall be in full force and
effect.
(g) Contributed Capital. The Administrative Agent
shall have received, with a counterpart for each Lender, a
certificate of a Responsible Officer of the Borrower to the
effect that the Borrower and its Restricted Subsidiaries have
received Contributed Capital net of any payments or
distributions made by the Borrower or any Restricted
Subsidiary to any Parent (or any Affiliate thereof) in an
aggregate amount of at least $2,200,000,000.
(h) Partnership Proceedings of the Borrower. The
Administrative Agent shall have received, with a counterpart
for each Lender, a copy of the resolutions, in form and
substance reasonably satisfactory to the Administrative Agent,
of the Partnership Board of Holding authorizing (i) the
execution, delivery and performance of this Agreement and the
other Loan Documents, (ii) the borrowings contemplated
hereunder and (iii) the granting of the Liens created pursuant
to the Security Documents, certified by the Secretary or an
Assistant Secretary of Holding as of the Closing Date, which
certificate shall be in form and substance reasonably
satisfactory to the Administrative Agent and shall state that
the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(i) Incumbency Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a
certificate of Holding, dated the Closing Date, as to the
incumbency and signature of the officers of Holding executing
this Agreement, reasonably satisfactory in form and substance
to the Administrative Agent, executed by the Secretary or any
Assistant Secretary of Holding.
(j) Legal Opinions. The Administrative Agent shall
have received, with a counterpart for each Lender, the follow-
ing executed legal opinions:
(i) the executed legal opi-
nion of Simpson Thacher & Bartlett, counsel to the
Borrower, substantially in the form of Exhibit B-1;
(ii) the executed legal opi-
nion of Charles R. Wunsch, Esq., Associate General
Counsel of the Borrower, substantially in the form of
Exhibit B-2; and
(iii) the executed legal opinion of
Morrison & Foerster LLP, special counsel to the
Borrower with respect to FCC matters, substantially
in the form of Exhibit B-3.
(k) Search Reports. The Administrative Agent shall
have received copies of the results of recent searches by
Persons reasonably satisfactory to the Administrative Agent of
tax liens, judgments and Uniform Commercial Code records in
all offices in which filings are required to be made in
accordance with the provisions of subsection 4.9(a) of the
Trust Agreement, and such searches shall reveal no Liens other
than those permitted by subsection 6.3.
(l) Fees. The Administrative Agent shall have
received all fees and other amounts due and payable by the
Borrower to the Administrative Agent on or prior to the
Closing Date.
(m) Financial Statements; Annual Budget. The
Administrative Agent shall have received from the Borrower (i)
the audited balance sheet referred to in subsection 3.1(a) and
(ii) a certificate dated the Closing Date and duly executed by
a Responsible Officer of the Borrower certifying that attached
thereto is the annual budget of the Borrower for the current
fiscal year, that such annual budget has been approved by the
Partnership Board of Holding and that such annual budget is
consistent in all material respects with the Information
Memorandum and the information and projections contained
therein.
4.2 Conditions to Each Loan. The agreement of the
Lenders to make any Loan requested to be made by it on any date
(including, without limitation, the initial Loan) is subject to the
satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Borrower and each
other Loan Party in or pursuant to the Loan Documents shall be
true and correct in all material respects on and as of such
date as if made on and as of such date.
(b) No Default. No Default or Event of Default
shall have occurred and be continuing on such date or after
giving effect to the Loans requested to be made on such date.
(c) Borrowing Request. The Administrative Agent
shall have received a notice containing a request for such
Loans if and as required by subsection 2.2.
Each borrowing by the Borrower hereunder shall constitute a
representation and warranty by the Borrower as of the date thereof that
the conditions contained in this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender or
the Administrative Agent hereunder or under any other Loan Document,
the Borrower shall and (except in the case of delivery of financial
information, reports and notices) shall cause each of its Restricted
Subsidiaries to:
5.1 Financial Statements. Furnish to the Admini-
strative Agent, with a copy for each Lender:
(a) as soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower, a copy
of the consolidated balance sheet of the Borrower and its
consolidated Restricted Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income
and retained earnings and of cash flows for such fiscal year,
reported on (without a qualification arising out of the scope
of the audit) by Deloitte & Touche LLP or other independent
certified public accountants of nationally recognized standing
and setting forth in comparative form the figures for the
previous fiscal year (provided, that no such comparison shall
be required in respect of the statements of income and
retained earnings and of cash flows for the 1996 fiscal year);
and
(b) as soon as available, but in any event not later
than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Borrower, the
unaudited consolidated balance sheet of the Borrower and its
consolidated Restricted Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of
income and retained earnings and of cash flows of the Borrower
and its consolidated Restricted Subsidiaries for such quarter
and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the
figures for the corresponding period of the previous fiscal
year (provided, that no such comparison shall be required in
respect of the statements of income and retained earnings and
of cash flows for any quarter in the 1996 fiscal year) and the
figures for the Borrower's budget for the period covered
thereby delivered pursuant to paragraph 5.2(d), certified by a
Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
all such financial statements shall be prepared in accordance with GAAP
applied consistently throughout the periods reflected therein (except
as approved by such accountants or Responsible Officer, as the case may
be, and disclosed therein).
5.2 Certificates; Other Information. Furnish to th
Administrative Agent, with a copy for each Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a), a certificate of
the independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor (and without performing any additional
procedures with respect thereto) no knowledge was obtained of
any Default or Event of Default, except as specified in such
certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 5.1(a) and (b), a
certificate of a Responsible Officer (i) stating that, to the
best of such Responsible Officer's knowledge, the Borrower
during such period has observed or performed all of its
covenants and other agreements contained in this Agreement and
the other Loan Documents to be observed or performed by it and
that such Responsible Officer has obtained no knowledge of any
Default or Event of Default, except as specified in such
certificate, (ii) setting forth computations in reasonable
detail demonstrating compliance with the covenants contained
in subsections 6.1 and 6.7 and (iii) if Floating GAAP used in
the preparation of any such financial statements shall be
different from Fixed GAAP, describing such differences and
reconciling any differences in calculation of compliance with
the covenants set forth in subsections 6.1 and 6.7 which may
result from such differences in GAAP;
(c) concurrently with the delivery of the financial
statements referred to in subsection 5.1(a) for each fiscal
year commencing subsequent to December 31, 1996, a certificate
of a Responsible Officer comparing (i) the figures in such
financial statements with the corresponding figures in the
Borrower's budget for such fiscal year delivered pursuant to
subsection 5.2(d) and (ii) the figures in such financial
statements for the fourth quarter of the fiscal year covered
thereby with the corresponding figures in the Borrower's
budget for such fiscal quarter delivered pursuant to
subsection 5.2(d);
(d) as soon as possible, the annual budget prepared
pursuant to Holding's partnership agreement and approved by
the Partnership Board of Holding for each fiscal year of the
Borrower (which shall be presented on a quarterly basis for
such fiscal year), commencing with its 1997 fiscal year, such
budget to be accompanied by a certificate of a Responsible
Officer of the Borrower to the effect that such budget has
been prepared using assumptions believed in good faith by the
management of the Borrower to be reasonable at the time of
such preparation;
(e) promptly after the filing thereof, copies of all
proxy statements, all registration statements (other than
those on Form S-8 relating to Plans) under the Securities Act
of 1933, as amended, and all reports on Forms 10-K, 10-Q and
8-K filed with the Securities and Exchange Commission by the
Borrower;
(f) within five Business Days after the same are
sent, a copy of any financial statement, report or notice
which Holding, the Borrower or any Subsidiary of the Borrower
sends to any Person under or pursuant to or in connection with
any Vendor Credit Facility, any Vendor Procurement Contract,
the Capital Contribution Agreement, the Trademark License
Agreement and any indenture or note relating to the High Yield
Debt, in each case if such statement, report or notice relates
to an event that has resulted or could reasonably be expected
to result in an Event of Default or a Material Adverse Effect;
and, within five Business Days after the same are received by
Holding, the Borrower or any Subsidiary of the Borrower,
copies of all notices sent to any such Person under or
pursuant to or in connection with any such agreement or
instrument which notice relates to an event that has resulted
or could reasonably be expected to result in an Event of
Default or a Material Adverse Effect;
(g) within 45 days after the end of each fiscal
quarter, a schedule listing (i) the aggregate number of
Wireless Subscribers at the end of the preceding fiscal
quarter, (ii) the aggregate number of Wireless Subscribers at
the end of such fiscal quarter, (iii) the aggregate number of
Wireless Subscribers whose service terminated during such
fiscal quarter and (iv) the aggregate number of Wireless
Subscribers added during such fiscal quarter; and
(h) promptly, such additional financial and other
information as the Administrative Agent may from time to time
reasonably request for itself or on behalf of any Lender.
5.3 Payment of Obligations. Pay, discharge or
otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its material obligations of
whatever nature, including all material taxes imposed upon it or upon
its income or profits or in respect of its property, except where the
amount or validity thereof is currently being contested in good faith
by appropriate proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the Borrower or its
Restricted Subsidiaries.
5.4 Conduct of Business; Maintenance of Existence;
Compliance with Laws. Preserve, renew and keep in full force and effect
its existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct
of its business except as otherwise permitted pursuant to subsection
6.5; comply in all material respects with all of its material
Contractual Obligations (including, without limitation, obligations
under any License) and material Requirements of Law, including, without
limitation, the Communications Act; and not take any action, or fail to
take any action, in any case if the result is (i) to subject the
Borrower or any Restricted Subsidiary to any restrictions relating to
FCC oversight that could reasonably be expected to result in a Material
Adverse Effect or (ii) a violation of the foreign ownership provisions
or any other provisions of the Communications Act that could reasonably
be expected to result in a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. Keep all
property useful and necessary in its business in good working order and
condition, except where the failure to do so would not be reasonably
expected to have a Material Adverse Effect; maintain with financially
sound and reputable insurance companies insurance on all its property
in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the
same or a similar business, and furnish to the Administrative Agent,
upon written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which entries
in conformity with GAAP and all Requirements of Law applicable to it
shall be made of all dealings and transactions in relation to its
business and activities; permit representatives of the Administrative
Agent and any Lender to visit and inspect any of its properties at any
reasonable time (upon reasonable advance notice) and as often as may be
reasonably requested and examine and make abstracts from any of its
books and records and to discuss with officers and employees of the
Borrower and its Restricted Subsidiaries the business, assets,
operations and financial condition of the Borrower and its Restricted
Subsidiaries and, in particular, the annual budget delivered pursuant
to subsection 5.2(d).
5.7 Notices. Promptly after any Responsible Officer
has knowledge thereof, give notice to the Administrative Agent of:
(a) the occurrence of any Default or Event of De-
fault;
(b) any default or event of default under any
Contractual Obligation of the Borrower or any of its
Restricted Subsidiaries which could reasonably be expected to
have a Material Adverse Effect;
(c) any litigation or proceeding affecting the
Borrower or any of its Restricted Subsidiaries which if
adversely determined could reasonably be expected to have a
Material Adverse Effect; and
(d) the following events, as soon as possible and in
any event within 30 days after the Borrower knows or has
reason to know thereof: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the
creation of any Lien in favor of the PBGC or a Plan or any
withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC
or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan, where
such event could reasonably be expected to have a Material
Adverse Effect; and
(e) any other development that has resulted in, or
could reasonably be expected to result in, a Material Adverse
Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Borrower has
taken or proposes to take with respect thereto.
5.8 Environmental Laws. (a) Comply with all
applicable Environmental Laws and obtain and comply in all material
respects with and maintain any Environmental Permits, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions,
required under Environmental Laws, except to the extent that the
failure to do so could not reasonably be expected to have a Material
Adverse Effect, and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same are being
contested in good faith by appropriate proceedings and the pendency of
such proceedings could not reasonably be expected to have a Material
Adverse Effect.
5.9 After-Acquired Assets. (a) Promptly (i) transfer
to WirelessCo any License held by the Borrower or any Restricted
Subsidiary (other than WirelessCo) and (ii) at the option of the
Borrower, either (A) transfer (I) to EquipmentCo any Personal Property
Assets (other than Direct-Lien Assets) hereafter acquired by the
Borrower or any Restricted Subsidiary and any such Personal Property
Assets of any Person that becomes a Restricted Subsidiary or is merged
with or into or consolidated with the Borrower or any Restricted
Subsidiary (in each case other than any such Personal Property Assets
constituting Excluded Assets), (II) to RealtyCo any Real Estate Assets
hereafter acquired by the Borrower or any Restricted Subsidiary and any
Real Estate Assets of any Person that becomes a Restricted Subsidiary
or is merged with or into or consolidated with the Borrower or any
Restricted Subsidiary (in each case other than any such Real Estate
Assets constituting Excluded Assets) and (III) to the Borrower any
Direct-Lien Assets hereafter acquired by the Borrower or any Restricted
Subsidiary and any Direct-Lien Assets of any Person that becomes a
Restricted Subsidiary or is merged with or into or consolidated with
the Borrower or any Restricted Subsidiary (in each case other than any
Direct-Lien Assets constituting Excluded Assets) or (B) create on terms
reasonably acceptable to the Administrative Agent a perfected first
priority security interest (subject to any Liens permitted by
subsection 6.3 (other than those referred to in the definition of the
term "Excluded Assets")) in favor of the Trustees for the benefit of
the Secured Parties in such Personal Property Assets, Real Estate
Assets or Direct-Lien Assets.
(b) Promptly create in favor of the Trustees for the
benefit of the Secured Parties in accordance with the terms of the
Security Documents a first priority perfected security interest
(subject to any Liens permitted by subsection 6.3) in any Direct-Lien
Assets of the Borrower or any Restricted Subsidiary (other than
Excluded Assets) that are not subject to such a security interest,
including with respect to Direct-Lien Assets that are acquired by the
Borrower or any Restricted Subsidiary after the date hereof and
Direct-Lien Assets of any Person that becomes a Restricted Subsidiary
or is merged with or into or consolidated with the Borrower or any
Restricted Subsidiary.
(c) Promptly create a mortgage on terms reasonably
acceptable to the Administrative Agent in favor of the Trustees for the
benefit of the holders of the Secured Obligations on any fee simple
interests in real property having at the time of acquisition thereof a
purchase price or fair market value greater than $15,000,000 (a
"Mortgaged Property") of the Borrower or any Restricted Subsidiary
(other than Excluded Assets) that are not so mortgaged, including
Mortgaged Properties that are acquired by the Borrower or any
Restricted Subsidiary after the date hereof and Mortgaged Properties of
any Person that becomes a Restricted Subsidiary or is merged with or
into or consolidated with the Borrower or any Restricted Subsidiary.
(d) Promptly cause (i) all Capital Stock of any
Restricted Subsidiary (including, without limitation, any Restricted
Subsidiary which shall be acquired by the Borrower in accordance with
the provisions of subsection 6.8(c) or (d) or any Unrestricted
Subsidiary which shall hereafter become a Restricted Subsidiary) to
become Additional Collateral under and pursuant to the Trust Agreement
and (ii) each Restricted Subsidiary to execute and deliver an
"Additional Guarantee" under and pursuant to the Trust Agreement.
(e) Promptly execute, acknowledge and deliver any and
all further documents, financing statements, agreements and
instruments, and thereafter register, file or record or take further
actions (including filing Uniform Commercial Code and other financing
statements, mortgages and deeds of trust), in each case at the
Borrower's sole expense, that may be required under applicable law, or
that the Requisite Lenders, the Administrative Agent or the Trustees
may reasonably request, to effectuate the transactions contemplated by
the Loan Documents and to grant, preserve, protect and perfect the
validity and first priority of the Liens created or intended to be
created by the Security Documents, including such Liens on the
Mortgaged Properties, and the Direct-Lien Assets (other than Excluded
Assets) and all the Capital Stock of each Restricted Subsidiary held by
the Borrower or any other Subsidiary.
5.10 Interest Rate Protection. If on any Measurement
Date the mean average of the six Eurodollar Rates determined for
Interest Periods of one month commencing on such Measurement Date and
on the first day of each of the five months preceding the month in
which such Measurement Date occurs would be greater than 6.50%, (a)
enter into, within 30 days of such Measurement Date, Interest Rate
Agreements the effect of which, when considered together with all other
Interest Rate Agreements then in effect, is to limit to a maximum rate
appropriate in the reasonable judgment of the Borrower consistent with
industry standards for an average weighted period, commencing on the
date that is 30 days after such Measurement Date, of at least three
years (provided that such period shall in no event be required to
extend beyond the date which is the fifth anniversary of the Closing
Date) the interest rate on Indebtedness in an aggregate principal
amount equal to (but only if such amount is a positive number) (i) 40%
of the aggregate amount of Indebtedness of the Borrower and its
Restricted Subsidiaries on a consolidated basis outstanding on such
Measurement Date less (ii) the aggregate amount of Indebtedness of the
Borrower and its Restricted Subsidiaries on a consolidated basis
outstanding on such Measurement Date that bears interest (whether or
not required to be paid in cash) or with respect to which interest
accretes at a fixed rate and either (A) matures after such period
expires or (B) matures before such period expires and is supplemented
by an Interest Rate Agreement which covers at least an equal amount of
Indebtedness and which has a term which commences at or prior to such
maturity and ends after such period expires and (b) deliver evidence of
the execution and delivery of such Interest Rate Agreements to the
Administrative Agent as soon as practicable following such execution
and delivery; provided, however, that the Borrower shall have no
obligations under this subsection after the first day on which the
Special Payment Condition shall have been satisfied.
5.11 Fiscal Year. Cause its respective fiscal year
to end on December 31 and its respective fiscal quarters to end on
March 31, June 30, September 30 and December 31.
5.12 Use of Proceeds. Use the proceeds of the Loans
only for the purposes set forth in subsection 3.18.
5.13 Insurance. Ensure that arrangements are in place
so that the proceeds of any insurance policies with respect to assets
held by any Special Purpose Subsidiary will be owned and paid directly
to such Special Purpose Subsidiary.
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender or
the Administrative Agent hereunder or under any other Loan Document,
the Borrower shall not, and (except with respect to subsection 6.1)
shall not permit any of its Restricted Subsidiaries to, directly or
indirectly:
6.1 Financial Condition Covenants.
(a) Total Debt to Total Capitalization. Permit the
ratio of (i) Total Debt outstanding on any of the dates set forth below
to (ii) Total Capitalization on such date to exceed the ratio set forth
opposite such date:
----------------------- ---------------------------
Date Ratio
----------------------- ---------------------------
12/31/96 .50 to 1
----------------------- ---------------------------
3/31/97 .55 to 1
----------------------- ---------------------------
6/30/97 .55 to 1
----------------------- ---------------------------
9/30/97 .57 to 1
----------------------- ---------------------------
12/31/97 .57 to 1
----------------------- ---------------------------
3/31/98 .60 to 1
----------------------- ---------------------------
6/30/98 .61 to 1
----------------------- ---------------------------
9/30/98 .61 to 1
----------------------- ---------------------------
12/31/98 .61 to 1
----------------------- ---------------------------
3/31/99 .62 to 1
----------------------- ---------------------------
6/30/99 .64 to 1
----------------------- ---------------------------
9/30/99 .66 to 1
----------------------- ---------------------------
12/31/99 .68 to 1
----------------------- ---------------------------
3/31/00 .69 to 1
----------------------- ---------------------------
6/30/00 .69 to 1
----------------------- ---------------------------
9/30/00 .70 to 1
----------------------- ---------------------------
12/31/00 .70 to 1
----------------------- ---------------------------
3/31/01 .70 to 1
----------------------- ---------------------------
6/30/01 .70 to 1
----------------------- ---------------------------
9/30/01 .70 to 1
----------------------- --------------------------
12/31/01 .70 to 1
----------------------- ---------------------------
(b) Total Debt to Annualized Adjusted EBITDA. Permit
the ratio of (i) Total Debt outstanding on any of the dates set forth
below to (ii) Annualized Adjusted EBITDA for the period ending on such
date to exceed the ratio set forth opposite such date:
------------------------- ------------------------------
Date Ratio
------------------------- ------------------------------
12/31/98 23.0 to 1
------------------------- ------------------------------
3/31/99 14.0 to 1
------------------------- ------------------------------
6/30/99 10.0 to 1
------------------------- ------------------------------
9/30/99 8.0 to 1
------------------------- ------------------------------
12/31/99 6.0 to 1
------------------------- ------------------------------
3/31/00 5.0 to 1
------------------------- ------------------------------
6/30/00 4.5 to 1
------------------------- ------------------------------
9/30/00 4.0 to 1
------------------------- ------------------------------
12/31/00 4.0 to 1
------------------------- ------------------------------
(c) Total Debt to Annualized EBITDA. Permit the ratio
of (i) Total Debt outstanding on any of the dates set forth below to
(ii) Annualized EBITDA for the period ending on such date to exceed the
ratio set forth opposite such date:
-------------------------- ------------------------------
Date Ratio
------------------------- -------------------------------
12/31/00 11.0 to 1
------------------------- -------------------------------
3/31/01 8.5 to 1
------------------------- -------------------------------
6/30/01 7.5 to 1
------------------------- -------------------------------
9/30/01 7.0 to 1
------------------------- -------------------------------
12/31/01 6.0 to 1
------------------------- -------------------------------
The last day of
each fiscal quarter
end thereafter 5.0 to 1
------------------------- -------------------------------
(d) Annualized EBITDA to Interest Expense. Permit the
ratio of (i) Annualized EBITDA for the period ending on any of the
dates set forth below to (ii) Interest Expense for the four consecutive
fiscal quarters ending on such date to be less than the ratio set forth
opposite such date:
-------------------------- -----------------------
Date Ratio
-------------------------- -----------------------
3/31/01 1.25 to 1
-------------------------- -----------------------
6/30/01 1.25 to 1
-------------------------- -----------------------
9/30/01 1.50 to 1
-------------------------- -----------------------
12/31/01 2.00 to 1
-------------------------- -----------------------
3/31/02 2.25 to 1
-------------------------- -----------------------
6/30/02 2.25 to 1
-------------------------- -----------------------
The last day of
each fiscal quarter
end thereafter 2.50 to 1
-------------------------- -----------------------
(e) Capital Expenditures. Permit Capital Expendi-
tures for any of the periods set forth below to exceed the amount set
forth opposite such period:
Period Amount
Date of formation of the
Borrower through 12/31/98 $4,500,000,000
1/1/99 through 12/31/99 1,000,000,000
1/1/00 through 12/31/00 1,000,000,000
1/1/01 through 12/31/01 1,000,000,000;
provided that any permitted amount which is not expended in any of the
periods specified above may be carried over for expenditure in any
subsequent period.
(f) Covered Pops. Create, incur or assume any
Indebtedness (other than Indebtedness permitted by paragraphs (b) and
(h) of subsection 6.2) or Guarantee Obligations in respect of
Indebtedness (other than Guarantee Obligations permitted by paragraph
(b) of subsection 6.4) at any time after any of the dates set forth
below if the number of Covered Pops on the last of such dates prior to
the date of such incurrence is less than the number set forth opposite
such last prior date:
Date Number
12/31/97 80,000,000
12/31/98 95,000,000
12/31/99 105,000,000
12/31/00 110,000,000
(g) Wireless Subscribers. Create, incur or assume any
Indebtedness (other than Indebtedness permitted by paragraphs (b) and
(h) of subsection 6.2) or Guarantee Obligations in respect of
Indebtedness (other than Guarantee Obligations permitted by paragraph
(b) of subsection 6.4) at any time after any of the dates set forth
below if the average of the numbers of Wireless Subscribers in
existence on the last of such dates prior to the date of such
incurrence and on the last day of each of the three previous calendar
quarters is less than the number set forth opposite such last prior
date:
Date Number
12/31/97 450,000
6/30/98 850,000
12/31/98 1,350,000
6/30/99 2,300,000
12/31/99 3,500,000
(h) Secured Obligations to Total Capitalization.
Permit the ratio of (i) Secured Obligations on the last day of any
fiscal quarter during any fiscal year set forth below to (ii) Total
Capitalization on such last day to exceed the ratio set forth opposite
such fiscal year:
Fiscal Year Ratio
1996 .45 to 1
1997 .55 to 1
1998 .60 to 1
1999 .65 to 1
2000 .65 to 1
2001 .65 to 1
6.2 Limitation on Indebtedness. Create, incur, assume
or suffer to exist any Indebtedness, except (subject to the provisions
of subsection 6.1(f) and (g)):
(a) Indebtedness of the Borrower under this Agree-
ment;
(b) Indebtedness of the Borrower to any Restricted
Subsidiary (other than any Special Purpose Subsidiary) and of
any Restricted Subsidiary (other than any Special Purpose
Subsidiary) to the Borrower or any other Restricted
Subsidiary;
(c) (i) Indebtedness of the Borrower and any of its
Restricted Subsidiaries (other than the Special Purpose
Subsidiaries) incurred to finance the acquisition,
construction, expansion or improvement of property or assets,
whether pursuant to a loan, a Financing Lease or otherwise,
(ii) Indebtedness constituting obligations of the Borrower and
its Restricted Subsidiaries (other than the Special Purpose
Subsidiaries) under Financing Leases arising out of
sale-leaseback transactions; and (iii) (A) Indebtedness of a
Person that is acquired by the Borrower or a Restricted
Subsidiary (other than a Special Purpose Subsidiary), and
which becomes a Restricted Subsidiary, after the date of this
Agreement, (B) Indebtedness of an Unrestricted Subsidiary
which becomes a Restricted Subsidiary after the date of this
Agreement and (C) Indebtedness secured by property or assets
acquired by the Borrower or any Restricted Subsidiary after
the date of this Agreement, provided that such Indebtedness
exists at the time such Person becomes a Restricted Subsidiary
or such property or assets are acquired, as the case may be,
and is not created in anticipation thereof; provided, however,
that the aggregate principal amount of Indebtedness permitted
by clauses (i), (ii) and (iii) of this paragraph at any one
time outstanding shall not exceed 5% of then Total
Capitalization;
(d) (i) Indebtedness of the Borrower under the Vendor
Credit Facilities described in subsections 4.1(c)(iii) and
(iv), and (ii) Indebtedness of the Borrower under other Vendor
Credit Facilities provided that the aggregate unpaid principal
amount of Indebtedness permitted under this clause (ii) shall
not exceed (x) $250,000,000 at any time prior to the date upon
which the Borrower shall have 80,000,000 Covered Pops or (y)
$500,000,000 at any time thereafter;
(e) Indebtedness of the Borrower incurred to finance
the acquisition of handsets; provided that the aggregate
principal amount of such Indebtedness shall not exceed
$300,000,000 at any time outstanding;
(f) Indebtedness of the Borrower and its Restricted
Subsidiaries (other than the Special Purpose Subsidiaries) in
existence on the date of this Agreement and listed on Schedule
III;
(g) the High Yield Debt;
(h) Permitted Refinancing Indebtedness; and
(i) additional Indebtedness (including Indebtedness
of any type specifically described above in this subsection)
of the Borrower and its Restricted Subsidiaries (other than
the Special Purpose Subsidiaries) provided, that (i) the
Weighted Average Life thereof is not shorter than the Weighted
Average Life of the Commitments, (ii) the terms of such
Indebtedness and of any agreement entered into and of any
instrument issued in connection therewith (including, without
limitation, those relating to collateral (if any) and covenant
protection) are not, taken as a whole, in the good faith
judgment of the Borrower's management, materially less
favorable to the Borrower than the terms and conditions of
this Agreement and (iii) at the time of incurrence of any of
the Indebtedness referred to in this paragraph, both before
and after giving effect thereto, the Borrower shall be in Pro
Forma Compliance; provided, further, that clauses (i) and (ii)
of the preceding proviso shall be inapplicable to Indebtedness
incurred pursuant to this paragraph for general partnership
purposes of the Borrower in an aggregate principal amount at
any time outstanding not exceeding $200,000,000.
6.3 Limitation on Liens. Create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on
the books of the Borrower or its Restricted Subsidiaries, as
the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business for sums which are not overdue for
a period of more than 60 days or which are being contested in
good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, do not materially detract
from the value of the property of the Borrower and its
Restricted Subsidiaries taken as a whole or materially
interfere with the ordinary conduct of the business of the
Borrower and its Restricted Subsidiaries taken as a whole;
(f) Liens securing Indebtedness of the Borrower and
its Restricted Subsidiaries (other than the Special Purpose
Subsidiaries) permitted by subsection 6.2(c)(i) incurred with
respect to the property and assets described in said
subsection, provided that (i) such Liens and the Indebtedness
secured thereby are incurred prior to or within 270 days after
the acquisition, construction, expansion or improvement to
which such Indebtedness relates, (ii) the Indebtedness secured
by such Liens does not exceed 100% of the cost of the
acquisition, construction, expansion or improvement financed
therewith and (iii) such Liens do not at any time encumber any
property or assets other than the property and assets with
respect to which such Indebtedness is incurred;
(g) Liens securing Indebtedness of the Borrower and
its Restricted Subsidiaries (other than the Special Purpose
Subsidiaries) permitted by subsection 6.2(c)(ii), provided
that (i) such Liens and the Indebtedness secured thereby are
incurred within 270 days after the purchase by the Borrower or
such Restricted Subsidiary of the property or assets which is
or are the subject of the sale-leaseback transaction to which
such Indebtedness relates, (ii) the Indebtedness secured by
such Liens does not exceed 100% of the purchase price of such
property or assets and (iii) such Liens do not at any time
encumber any property or assets other than the assets that are
the subject of such sale-leaseback;
(h) Liens on the property or assets of a Person which
becomes a Restricted Subsidiary after the date of this
Agreement or on property or assets acquired by the Borrower or
any Restricted Subsidiary after the date of this Agreement, in
each case securing Indebtedness permitted by subsection
6.2(c)(iii), provided that (i) such Liens exist at the time
such Person becomes a Restricted Subsidiary or such property
or assets are acquired, as the case may be, and are not
created in anticipation thereof, (ii) any such Lien is not
extended to cover any property or assets of such Person or any
other property or assets of the Borrower or such Restricted
Subsidiary, as the case may be, after the time such Person
becomes a Restricted Subsidiary or such property or assets are
acquired, as the case may be and (iii) the aggregate book
value of such property or assets securing any such
Indebtedness shall not exceed 200% of the amount of such
Indebtedness;
(i) Liens in existence on the date of this Agreement
and listed on Schedule IV and securing Indebtedness permitted
by subsection 6.2(f), provided that no such Lien is extended
to cover any additional property after the date of this
Agreement and that the amount of Indebtedness secured thereby
is not increased;
(j) Liens created pursuant to the Security Docu-
ments;
(k) Liens of attachments, judgments or awards against
the Borrower or its Restricted Subsidiaries, as the case may
be, with respect to which an appeal or proceeding for review
shall be pending or a stay of execution shall have been
obtained, or which are otherwise being contested in good faith
and by appropriate proceedings diligently conducted, and in
respect of which adequate reserves shall have been established
in accordance with GAAP on the books of the Borrower or such
Restricted Subsidiary;
(l) restrictions on the transfer of assets imposed
by any of the Licenses or by the Communications Act or any
other Requirement of Law;
(m) leases or subleases granted to others not
interfering in any material respect with the business of the
Borrower and its Subsidiaries taken as a whole and any
interest or title of a lessor under any lease not prohibited
by this Agreement;
(n) the filing of financing statements regarding
leases not prohibited by this Agreement;
(o) ground leases in respect of real property on
which facilities owned or leased by the Borrower or its Re-
stricted Subsidiaries are located;
(p) Liens on goods (and the documents of title
related thereto) the purchase price of which is financed by a
documentary letter of credit issued for the account of the
Borrower or its Restricted Subsidiaries (other than the
Special Purpose Subsidiaries) and not prohibited by subsection
6.4, provided that such Lien secures only the obligations of
the Borrower or such Restricted Subsidiaries in respect of
such letter of credit;
(q) Liens on shares of the Capital Stock of Unre-
stricted Subsidiaries; and
(r) additional Liens which secure Indebtedness and
other obligations and liabilities of the Borrower and its
Restricted Subsidiaries not exceeding $100,000,000 in the
aggregate at any time outstanding, provided that the aggregate
book value of the assets that are subject to the Liens
described in this paragraph shall not exceed 150% of the
principal amount of the Indebtedness secured thereby.
6.4 Limitation on Guarantee Obligations. Create,
incur, assume or suffer to exist any Guarantee Obligation ex-
cept (subject to subsection 6.1(f) and (g)):
(a) Guarantee Obligations of the Borrower in exi-
stence on the date of this Agreement and listed on Schedule V;
(b) Guarantee Obligations incurred in the ordinary
course of its business by the Borrower and its Restricted
Subsidiaries (other than the Special Purpose Subsidiaries) in
respect of Indebtedness and other obligations and liabilities
of the Borrower and its Restricted Subsidiaries (other than
any Special Purpose Subsidiary) not prohibited by this
Agreement;
(c) Guarantee Obligations in respect of the undrawn
portion of the face amount of letters of credit issued for the
account of the Borrower or any Restricted Subsidiary (other
than the Special Purpose Subsidiaries) in the ordinary course
of business in respect of obligations that do not constitute
Indebtedness;
(d) the Guarantees; and
(e) additional Guarantee Obligations of the Borrower
and its Restricted Subsidiaries (other than the Special
Purpose Subsidiaries) not exceeding $50,000,000 in the
aggregate at any time outstanding;
provided that neither the Borrower nor any Restricted Subsidiary shall
be permitted to create, incur or assume any of the Guarantee
Obligations referred to in paragraphs (c) and (e) of this subsection
unless, after giving effect thereto, the Borrower would be in Pro Forma
Compliance.
6.5 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, liquidate, dissolve or wind up
and terminate itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of, all or
substantially all of its property, business or assets, except that, so
long as, after giving effect thereto, the Borrower would be in Pro
Forma Compliance:
(a) any Restricted Subsidiary (other than any Special
Purpose Subsidiary) may be merged or consolidated with or into
the Borrower (provided that the Borrower shall be the
continuing or surviving entity) or with or into any one or
more other Wholly Owned Restricted Subsidiaries (other than,
if such Restricted Subsidiary has any Indebtedness or other
liabilities, with or into any Special Purpose Subsidiary)
(provided that the Wholly Owned Restricted Subsidiary or
Wholly Owned Restricted Subsidiaries shall be the continuing
or surviving entity or entities);
(b) any Wholly Owned Restricted Subsidiary (other
than any Special Purpose Subsidiary) may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Borrower or any one
or more other Wholly Owned Restricted Subsidiaries; provided
that the liabilities of such selling, leasing, transferring or
disposing Restricted Subsidiary are not transferred to or
assumed by, and do not otherwise become liabilities of, any
Special Purpose Subsidiary;
(c) the Borrower may merge or consolidate with any
corporation with the result that the Borrower shall become a
corporation; provided, that (i) the Borrower shall have
provided to the Administrative Agent written notice of such
merger or consolidation at least 10 Business Days prior to the
consummation thereof, (ii) such corporation to survive such
merger or consolidation shall confirm in writing to the
Administrative Agent its agreement to be bound by the terms of
this Agreement and the other Loan Documents as and to the
extent that the Borrower is so bound, (iii) the Borrower and
such corporation shall promptly take such other actions as the
Administrative Agent shall request as reasonably necessary to
ensure that the rights and benefits of the Lenders under this
Agreement and the other Loan Documents, including with respect
to the Liens created by the Security Documents, are in no way
impaired or diminished and (iv) immediately after giving
effect to such transaction on a pro forma basis (including,
without limitation, any Indebtedness incurred or anticipated
to be incurred in connection with or in respect of such
transaction) the surviving entity could incur $1.00 of
additional Indebtedness pursuant to the terms of subsection
6.1(f) and (g); and
(d) the Borrower or any Restricted
Subsidiary (other than a Special Purpose Subsidiary) may
effect pursuant to a merger or consolidation any Investment
permitted by subsection 6.8(c) or (d) so long as the Borrower
or such Restricted Subsidiary is the surviving entity.
6.6 Limitation on Sale of Assets. Convey, sell,
lease, assign, transfer or otherwise dispose of any of its property,
business or assets (including, without limitation, receivables and
leasehold interests), whether now owned or hereafter acquired, or, in
the case of any Restricted Subsidiary, issue or sell any shares of such
Restricted Subsidiary's Capital Stock to any Person other than the
Borrower or any Wholly Owned Restricted Subsidiary, except:
(a) the sale or other disposition of inventory or any
other property in the ordinary course of business (provided
that no sale of a License or any System shall be considered to
be in the ordinary course of business);
(b) as permitted by subsection 6.5(b);
(c) so long as after giving effect thereto the
Borrower is in Pro Forma Compliance, any Asset Sale (other
than any sale of receivables permitted by subsection 6.6(f))
the aggregate fair market value of the property and assets
that are the subject of which is equal to or less than
$25,000,000; provided that (i) if such Asset Sale includes one
or more Licenses and, after giving effect thereto, the then
aggregate number of Owned Pops would be less than 120,000,000,
such Asset Sale shall have been approved by the Requisite
Lenders and (ii) if the aggregate fair market value of the
property and assets sold or otherwise disposed of pursuant to
this paragraph during any period of two consecutive calendar
years shall exceed $100,000,000, the Net Cash Proceeds of such
excess property and assets, to the extent not applied to
purchase other property or assets to be utilized in connection
with the Borrower's national wireless telecommunications
network within 270 days from the date of the applicable Asset
Sale, shall be applied to effect a Pro Rata
Prepayment/Commitment Reduction;
(d) so long as after giving effect thereto the
Borrower is in Pro Forma Compliance, any Asset Sale (other
than any sale of receivables permitted by subsection 6.6(f))
the aggregate fair market value of the property and assets
that are the subject of which are in excess of $25,000,000,
provided that, (i) if such Asset Sale includes one or more
Licenses and, after giving effect thereto, the then aggregate
number of Owned Pops would be less than 120,000,000, such
Asset Sale shall have been approved by the Requisite Lenders,
(ii) to the extent the Net Cash Proceeds of such Asset Sale
are in excess of $100,000,000, such excess Net Cash Proceeds
shall be deposited in the Asset Sale Proceeds Sub-Account,
from which the Borrower may withdraw and apply such funds,
together with all earnings thereon, to the purchase, within
270 days from the date of the applicable Asset Sale, of other
property or assets to be utilized in connection with the
Borrower's national wireless telecommunications network, (iii)
the Borrower may apply such Net Cash Proceeds (whether or not
required to be deposited in the Asset Sale Proceeds
Sub-Account as described above) to purchase other property or
assets to be utilized in connection with the Borrower's
national wireless telecommunications network if the Borrower
shall (A) notify the Administrative Agent reasonably promptly
following the completion of such Asset Sale that it intends to
do so and (B) deliver to the Administrative Agent evidence
that the Borrower has, within 270 days from the date of such
Asset Sale, in fact done so and (iv) if and to the extent that
the aggregate amount of the Net Cash Proceeds of all such
Asset Sales described in this paragraph that are not used as
specified in clause (iii) of this proviso, such amount shall
be applied to effect a Pro Rata Prepayment/Commitment
Reduction;
(e) so long as after giving effect thereto the
Borrower is in Pro Forma Compliance, any Asset Swap, provided
that, (i) if such Asset Swap includes one or more Licenses
and, after giving effect thereto, the then aggregate number of
Owned Pops would be less than 120,000,000, such Asset Swap
shall have been approved by the Requisite Lenders and (ii) if
and to the extent that the Borrower and its Restricted
Subsidiaries receive consideration for the System or Systems
transferred by them in connection with such Asset Swap that is
in addition to the System or Systems received in exchange
therefor, such Asset Swap shall be deemed to be an Asset Sale
and shall be permitted only if the provisions of subsection
6.6(c) or 6.6(d) (whichever shall be applicable) shall be
complied with in connection therewith;
(f) sales of receivables, provided that (i) in the
case of any such sales completed prior to the date upon which
the Special Payment Condition shall be satisfied, (A) the Net
Cash Proceeds thereof shall be applied to effect a Pro Rata
Prepayment/Commitment Reduction or (B) a Pro Rata Payment
Offer in an amount equal to such Net Cash Proceeds shall be
made to all the Lenders and (ii) in the case of any such sales
completed on or subsequent to the date upon which the Special
Payment Condition shall be satisfied, the Net Cash Proceeds
thereof shall be used (A) to prepay Secured Obligations or (B)
for general purposes of the Borrower and its Restricted
Subsidiaries;
(g) as permitted by subsection 6.7;
(h) the sale of any shares of the Capital Stock of
any Unrestricted Subsidiary; and
(i) the sale of any assets in connection with any
sale and leaseback transaction, provided (i) that such sale
occurs within 270 days after the purchase by the Borrower or
such Restricted Subsidiary of such asset and (ii) in the case
of any such sale and leaseback transaction pursuant to an
operating lease, the asset subject to such sale and leaseback
transaction was not acquired with the Net Cash Proceeds of any
Asset Sale that the Borrower would have been required to apply
to effect a Pro Rata Prepayment/Commitment Reduction if such
Net Cash Proceeds had not been applied to purchase such asset;
provided, that in each case described in paragraphs (c), (d) and (f)
and, to the extent an Asset Sale is involved, (e) of this subsection,
the consideration received by the Borrower or its Restricted
Subsidiaries for such Asset Sale shall be cash, Cash Equivalents,
promissory notes, other deferred payment obligations and property or
assets to be utilized in connection with the Borrower's national
wireless telecommunications network, provided, further, that at least
80% of such consideration shall consist of cash, Cash Equivalents
and/or property or assets to be utilized in connection with the
Borrower's national wireless telecommunications network, and provided,
still further, that the aggregate outstanding principal amount of such
promissory notes and other deferred payment obligations held by the
Borrower and its Restricted Subsidiaries shall not exceed $250,000,000
at any time. Anything in this subsection to the contrary
notwithstanding, in no event may the Borrower or any Restricted
Subsidiary sell, assign or otherwise dispose of any Capital Stock of
any Special Purpose Subsidiary or any rights under either Vendor
Procurement Contract, the Trademark License Agreement, any Special
Purpose Subsidiary Funding Agreement or the Capital Contribution
Agreement.
6.7 Limitation on Restricted Payments. Pay any
distributions (other than distributions payable solely in Capital Stock
of the Borrower) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any Capital
Stock of the Borrower or any Restricted Subsidiary or any warrants or
options to purchase any such Capital Stock, whether now or hereafter
outstanding, either directly or indirectly, whether in cash or property
or in obligations of the Borrower or any Restricted Subsidiary (such
payments, prepayments, distributions, setting apart, purchases,
redemptions, defeasances, retirements and acquisitions and
distributions being herein called "Restricted Payments"), except that
(a) the Borrower may make any Restricted Payment constituting a
distribution of any ownership interest it may hold in APC, (b) any
Restricted Subsidiary may make cash distributions to the Borrower
and/or any Wholly Owned Restricted Subsidiary, provided that no
distribution referred to in this clause (b) shall be permitted to be
made by any Special Purpose Subsidiary if any Default or Event of
Default shall have occurred and be continuing or would result
therefrom, and (c) if no Default or Event of Default shall have
occurred and be continuing or would result, after giving effect
thereto, the Borrower may make Restricted Payments:
(i) so long as the Borrower is a partnership, to the
extent of the amount of Federal, state and local income taxes
assumed to be payable by the Borrower in any fiscal year in
respect of the income of the Borrower and its Subsidiaries for
such fiscal year if the Borrower were a corporation subject to
taxation as such for such fiscal year (calculated at the
maximum applicable Federal corporate income tax rate plus an
assumed state and local tax rate of 5%), provided that (x)
nothing in this paragraph (i) shall be deemed to permit any
such Restricted Payment for the purpose of paying any tax
liabilities of the Parents resulting from the conversion of
the Borrower from partnership to corporate form and (y) no
Restricted Payment shall be permitted under this paragraph (i)
unless after giving effect thereto, the Special Payment
Condition shall be satisfied;
(ii) to the extent necessary to provide the issuer of any
Specified Affiliate Debt with amounts sufficient to pay
principal, interest and other amounts then required to be paid
under the terms of such Specified Affiliate Debt, if at the
time such distribution is made, the Borrower is in Pro Forma
Compliance; and
(iii) to the extent that (x) after giving effect thereto,
the Special Payment Condition shall be satisfied and (y) the
Borrower shall have made a Pro Rata Payment Offer in an amount
equal to such Restricted Payment.
6.8 Limitation on Investments, Loans and Advances.
Make any advance, loan, extension of credit or capital contribution to,
or purchase any stock, bonds, notes, debentures or other securities of
or any assets constituting a business unit of, or make any other
investment in (such advances, loans, extensions of credit, capital
contributions, purchases and investments being herein called
"Investments"), any Person, except:
(a) extensions of trade credit in the ordinary
course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted
Subsidiary (other than any Special Purpose Subsidiary) in
Persons engaged in the telecommunications business or
businesses related thereto, provided that (i) such Person, if
it shall be a Subsidiary, shall become a Restricted Subsidiary
unless (A) such Person or assets shall be acquired with (I)
proceeds of capital contributed to the Borrower expressly for
such purpose and/or (II) funds of the Borrower in such amount
that, after giving effect thereto, the Special Payment
Condition shall be satisfied, provided that the Borrower shall
have made a Pro Rata Payment Offer in an amount equal to such
Investment and (B) the Borrower designates such Person, by
notice to the Administrative Agent, as an Unrestricted
Subsidiary and (ii) immediately prior and after giving effect
to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted
Subsidiary (other than any Special Purpose Subsidiary) in
Persons not engaged in the telecommunications business or
businesses related thereto if, after giving effect thereto,
the aggregate amount of such Investments then held by the
Borrower and its Restricted Subsidiaries does not exceed (x)
at any time prior to the date on which the Special Payment
Condition shall have occurred, $50,000,000, or (y) thereafter,
5% of then Total Capitalization; provided that (i) such
Person, or the Person which shall become the owner of any
assets acquired in connection with such Investment, shall
become a Restricted Subsidiary unless (A) such Person or
assets shall be acquired with (I) proceeds of capital
contributed to the Borrower expressly for such purpose and/or
(II) funds of the Borrower in such amount that after giving
effect thereto, the Special Payment Condition shall be
satisfied, provided that the Borrower shall have made a Pro
Rata Payment Offer in an amount equal to such Investment and
(B) the Borrower designates such Person, by notice to the
Administrative Agent, an Unrestricted Subsidiary and (ii)
immediately prior and after giving effect to such Investment,
the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by
the Borrower and its Restricted Subsidiaries of any System or
Systems in connection with any Asset Swap, provided that (i)
to the extent that the Borrower and its Restricted
Subsidiaries give consideration for the System or Systems
acquired by them in connection with such Asset Swap that is in
addition to the System or Systems transferred by them in
exchange therefor, such Asset Swap shall be deemed to
constitute an Investment and shall be permitted only if the
provisions of subsection 6.6(e) and 6.8(c) shall be complied
with in connection therewith and (ii) immediately prior and
after giving effect to such Investment the Borrower is in Pro
Forma Compliance;
(f) loans and advances to employees of the Borrower
and its Restricted Subsidiaries in an aggregate principal
amount outstanding not to exceed $10,000,000 at any one time
outstanding;
(g) Investments by the Borrower in its Restricted
Subsidiaries and Investments by any Restricted Subsidiary
(other than any Special Purpose Subsidiary) in the Borrower or
by any Restricted Subsidiary (other than any Special Purpose
Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment
obligations that constitute proceeds of Asset Sales that are
permitted by subsection 6.6.
6.9 Limitation on Transactions with Affiliates. Enter
into any transaction or agreement, or participate in any arrangement,
including, without limitation, any purchase, sale, lease or exchange of
property or the rendering of any service, with any Affiliate unless
such transaction, agreement or arrangement is (a) not prohibited by
this Agreement, (b) in the ordinary course of the Borrower's or such
Restricted Subsidiary's business, and (c) upon terms no less favorable
to the Borrower or such Restricted Subsidiary, as the case may be, than
those that could be obtained on an arm's length basis from a Person
which is not an Affiliate.
6.10 Limitation on Lines of Business; Liabilities of
Subsidiaries. (a) Enter into any business, either directly or through
any Restricted Subsidiary, except for the telecommunications business
and businesses which are related thereto and in any business which the
Borrower or any Restricted Subsidiary enters into as a result of an
Investment permitted pursuant to subsection 6.8(d).
(b) Permit WirelessCo to incur any material
liabilities (other than the Guarantee executed by it) or to engage in
any business or activities other than the holding of Licenses.
(c) Permit EquipmentCo to incur any material
liabilities (other than the Guarantee executed by it and liabilities
under the Vendor Procurement Contracts) or to engage in any business or
activities other than the owning of Personal Property Assets and the
leasing thereof to the Borrower.
(d) Permit RealtyCo to incur any material liabilities
(other than the Guarantee executed by it and other liabilities incurred
in the ordinary course of business which are incident to being the
owner or lessee of real property) or to engage in any business or
activities other than the owning or leasing, as lessee, of Real Estate
Assets and the leasing, as lessor, or, as the case may be, subleasing,
as sublessor, thereof to the Borrower.
6.11 Limitation on Prepayments of Certain Indebted-
ness.
(a) Prepay or set aside any funds as a sinking fund
for the prepayment of, or redeem, defease or acquire, any Indebtedness
permitted by subsections 6.2(d)(i), (f), (g), (h) or (except to the
extent incurred as permitted by the second proviso thereto) (i), except
(i) pursuant to a Pro Rata Payment Offer to all holders of Secured
Obligations or to less than all of such holders (provided that such
lesser group of holders includes all the Lenders) or pursuant to a Pro
Rata Prepayment/Commitment Reduction, (ii) with (A) proceeds of
Permitted Refinancing Indebtedness, (B) proceeds of capital contributed
to the Borrower expressly for such purpose and/or (C) funds of the
Borrower in such amount that after giving effect thereto, the Special
Payment Condition shall be satisfied, provided that, in the case of
this clause (ii)(C), the Borrower shall have made a Pro Rata Payment
Offer in an amount equal to such amount, (iii) a prepayment of any
Indebtedness issued subsequent to the date hereof pursuant to
subsection 6.2(h) or (i) if, had such Indebtedness, when created,
included a scheduled amortization payment on the date of such
prepayment that was in an amount equal to such prepayment, such
Indebtedness would have contained no provisions which would have caused
such Indebtedness not to comply with such subsection or (iv) a
prepayment of any committed revolving credit facility to the extent
that the commitments to lend thereunder are not reduced in connection
therewith.
(b) Enter into any amendment or other Contractual
Obligation (including any mandatory prepayment or similar provision)
that has the effect of shortening the maturity of any Indebtedness
permitted by subsections 6.2(d)(i), (f), (g), (h) or (except to the
extent incurred as permitted by the second proviso thereof) (i);
provided, however, that nothing in this subsection shall be deemed to
limit the ability of the Borrower to amend the terms of, or enter into
any such Contractual Obligation with respect to, any Indebtedness
issued subsequent to the date hereof pursuant to subsection 6.2(h) or
(i) if, after giving effect to such amendment or Contractual
Obligation, such Indebtedness (as modified by such Contractual
Obligation) shall contain no provisions which would have caused such
Indebtedness not to comply with such subsection if such provisions had
been included in the terms and conditions of such Indebtedness when
originally incurred.
6.12 Limitation on Certain Amendments. Amend or
otherwise modify or waive, or permit to be amended, supplemented or
otherwise modified or waived, in any manner that is materially adverse
to the interests of the Lenders, any provision of any of (a) the
Capital Contribution Agreement, (b) the Trademark License Agreement,
(c) the Vendor Procurement Contracts, (d) the partnership agreement of
the Borrower, (e) the Special Purpose Subsidiary Funding Agreements or
(f) the partnership agreement of Holding.
6.13 Limitation on Designation of Secured
Obligations. Designate any Indebtedness as Secured Obligations under
the Trust Agreement other than (a) the Loans, (b) the Vendor Credit
Facilities, (c) Interest Rate Agreement Obligations (i) under any
Interest Rate Agreement to which a Lender or any lender under a Vendor
Credit Facility or other Bank Credit Facility is the counterparty or
(ii) related to Secured Obligations, (d) Permitted Refinancing
Indebtedness or (e) Indebtedness permitted by subsection 6.2(i);
provided that in no event shall any Indebtedness secured by a Lien
permitted under subsection 6.3(f), (g), (h), (i), (p), (q) or (r) be
designated as a Secured Obligation.
6.14 Hedging Arrangements. Enter into any interest
rate swap agreement, foreign currency exchange agreement or other
interest rate or foreign currency hedging arrangement other than an
Interest Rate Agreement or a Currency Rate Agreement.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) the Borrower shall fail to pay any principal of
any Loan when such principal becomes due in accordance with
the terms hereof; or the Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder,
within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed
made by the Borrower or any other Loan Party in this Agreement
or in any other Loan Document or by any Parent in the Capital
Contribution Agreement or which is contained in any
certificate, document or financial or other statement
furnished by it or on its behalf at any time under or in
connection with this Agreement or any such other Loan Document
shall prove to have been incorrect in any material respect on
or as of the date made or deemed made, and, if the facts and
circumstances resulting in such breach are capable of being
remedied within 30 days such that the rights and interests of
the Lenders and the creditworthiness of the Borrower reflected
in such representation or warranty would be the same after
giving effect to such remedy as they would have been if such
representation or warranty had originally been true, such
facts and circumstances shall not have been so remedied within
such 30-day period; or
(c) the Borrower shall default in the observance or
performance of any agreement contained in subsection 5.4 (with
respect to the existence of the Borrower and the Special
Purpose Subsidiaries only), 5.7(a) or 5.12 or Section 6; or
(d) the Borrower or any other Loan Party shall
default in the observance or performance of any agreement
contained in this Agreement or any other Loan Document (other
than as provided in paragraphs (a), (b) and (c) of this
Section), and such default shall continue unremedied for a
period of 30 days after the earlier of (i) the first date on
which a Responsible Officer of the Borrower first learns of
such default and (ii) receipt by the Borrower of notice
thereof from the Administrative Agent or any Lender; or
(e) the Borrower or any Restricted Subsidiary shall
(i) default in any payment of principal of or interest on any
Indebtedness (other than the Loans), any Guarantee Obligation
in respect of Indebtedness or any Hedging Agreement Obligation
beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness, Guarantee
Obligation or Hedging Agreement Obligation was created; or
(ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness,
Guarantee Obligation or Hedging Agreement Obligation, or any
other event shall occur or condition exist, the effect of
which is to cause, or to permit the holder or holders of such
Indebtedness, Guarantee Obligation or Hedging Agreement
Obligation (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or
such Guarantee Obligation or Hedging Agreement Obligation to
become payable; provided, however, that no Event of Default
shall occur under this paragraph unless the aggregate
principal amount of Indebtedness or Guarantee Obligations, or
the aggregate amount of Hedging Agreement Obligations, in
respect of which any such default or defaults shall occur is
in excess of the lesser of (A) $50,000,000 and (B) 10% of the
sum of the aggregate then outstanding principal amount of all
Indebtedness and (without duplication of underlying
Indebtedness) Guarantee Obligations and aggregate then
outstanding Hedging Agreement Obligations of the Borrower and
its Restricted Subsidiaries; or
(f) (i) the Borrower, any Restricted Subsidiary,
MinorCo or (so long as the Borrower remains a partnership)
Holding shall commence any case, proceeding or other action
(A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order
for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its
assets, or the Borrower, any Restricted Subsidiary, MinorCo or
(so long as the Borrower remains a partnership) Holding shall
make a general assignment for the benefit of its creditors; or
(ii) there shall be commenced against the Borrower, any
Restricted Subsidiary, MinorCo or (so long as the Borrower
remains a partnership) Holding any case, proceeding or other
action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower, any Restricted
Subsidiary, MinorCo or (so long as the Borrower remains a
partnership) Holding any case, proceeding or other action
seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Borrower, any Restricted
Subsidiary, MinorCo or (so long as the Borrower remains a
partnership) Holding shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii) or (iii) above;
or (v) the Borrower, any Restricted Subsidiary, MinorCo or (so
long as the Borrower remains a partnership) Holding shall
generally not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due; or
(g) (i) any Parent shall commence any case,
proceeding or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its
assets, or any Parent shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced
against any Parent any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be
commenced against any Parent any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial
part of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged,
or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) any Parent shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii)
or (iii) above; or (v) any Parent shall generally not, or
shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; provided, however, that
no Event of Default shall occur under this paragraph if (x)
all amounts to be contributed to the capital of the Borrower
pursuant to the Capital Contribution Agreement have been so
contributed or (y) within 30 days after an Event of Default
would otherwise occur pursuant to this paragraph (g) as a
result of one of the events enumerated above with respect to
any Parent, one or more of the other Parents shall have
assumed all the obligations of such affected Parent under the
Capital Contribution Agreement in writing in form and
substance reasonably satisfactory to the Administrative Agent;
or
(h) (i) any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or Section
4975 of the Code) involving any Plan, (ii) any "accumulated
funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Single
Employer Plan or any Lien in favor of the PBGC or a Plan shall
arise on the assets of the Borrower or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to,
or proceedings shall commence to have a trustee appointed, or
a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or
commencement of proceedings or appointment of a trustee is, in
the reasonable opinion of the Requisite Lenders, likely to
result in the termination of such Plan for purposes of Title
IV of ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA or (v) the Borrower or any
Commonly Controlled Entity shall incur any liability in
connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan; and in each case in
clauses (i) through (v) above, such event or condition,
together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse
Effect; or
(i) one or more judgments or decrees shall be entered
against the Borrower or any Restricted Subsidiary involving in
the aggregate a liability (not paid or fully covered by
insurance) of an amount in excess of the lesser of (A)
$50,000,000 and (B) 10% of the aggregate then outstanding
principal amount of all Indebtedness of the Borrower and its
Restricted Subsidiaries on a consolidated basis, and each such
judgment or decree shall not have been vacated, discharged,
stayed or bonded pending appeal within 30 days from the entry
thereof; or
(j) (i) any of the Security Documents shall cease,
for any reason, to be in full force and effect, or the
Borrower or any other Loan Party which is a party to such
Security Document shall so assert in writing or (ii) except in
accordance with the terms thereof or of any other Loan
Document, the Lien created by any of the Security Documents
shall cease to be enforceable and of the same effect and
priority purported to be created thereby; or
(k) any Guarantee shall cease, for any reason, to b
in full force and effect or the Guarantor party thereto shall
so assert in writing; or
(l) the Capital Contribution Agreement shall cease,
for any reason, to be in full force and effect prior to the
date on which all amounts required to be contributed
thereunder have been contributed to the Borrower, or any
Parent shall so assert in writing; or
(m) the Borrower's right to use the "Sprint" trade-
mark pursuant to the Trademark License Agreement shall termi-
nate; or
(n) any termination, revocation or non-renewal by the
FCC of one or more Licenses of the Borrower or its Restricted
Subsidiaries if, after giving effect thereto, the aggregate
number of Owned Pops is less than 120,000,000; or
(o) the commencement by the Trustee of foreclosure
proceedings with respect to any of the Collateral while a No-
tice of Enforcement is in effect; or
(p) the failure of the full amount of any required
capital contribution to be made under the Capital Contribution
Agreement for a period of more than 30 days after the date
when due; or
(q) any Change in Control;
then, and in any such event, (i) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) of this Section 7 with
respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement shall
immediately become due and payable, and (ii) if such event is any other
Event of Default, either or both of the following actions may be taken:
(A) with the consent of the Requisite Lenders, the Administrative Agent
may, or upon the request of the Requisite Lenders, the Administrative
Agent shall, by notice to the Borrower declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately
terminate; and (B) with the consent of the Requisite Lenders, the
Administrative Agent may, or upon the request of the Requisite Lenders,
the Administrative Agent shall, by notice to the Borrower, declare the
Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable. Except as expressly
provided above in this Section 7, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the administrative
agent of such Lender under this Agreement and the other Loan Documents
and irrevocably authorizes the Administrative Agent, in such capacity,
to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Administrative Agent shall not have any duties or
responsibilities to any Lender, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or
liabilities to any Lender shall be read into this Agreement or
otherwise exist against the Administrative Agent. Notwithstanding
anything to the contrary contained in this Agreement, the parties
hereto hereby agree that no co-agent shall have any rights, duties or
responsibilities in its capacity as co-agent hereunder and that no
co-agent shall have the authority to take any action hereunder in its
capacity as such.
8.2 Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible to any Lender
for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable to any
Lender for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with this Agreement or any other
Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (b) responsible in any manner to any of the
Lenders for any recitals, statements, representations or warranties
made by the Borrower or any officer thereof contained in this
Agreement, any other Loan Document or any certificate, report,
statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any
other Loan Document or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Administrative Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Borrower.
8.4 Reliance by the Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by
the proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by the
Administrative Agent with reasonable care. The Administrative Agent may
deem and treat the payee of any Loan or Note as the owner thereof for
all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent.
The Administrative Agent shall be fully justified in failing or
refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of
the Requisite Lenders as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance
with a request of the Requisite Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative Agent
has received notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent
shall give notice thereof to the Lenders. The Administrative Agent
shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Requisite Lenders; provided that
unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Borrower,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the
Administrative Agent 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
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Borrower and
made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and
without reliance upon the 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 analysis, appraisals and
decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Borrower.
Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder and
under the Trust Agreement, the Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower
which may come into the possession of the Administrative Agent or any
of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
8.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such (to the extent not
reimbursed by the Borrower and without limiting the obligation of the
Borrower to do so), ratably according to their respective Percentages
in effect on the date on which indemnification is sought (or, if
indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full,
ratably in accordance with their Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including,
without limitation, at any time following the payment of the Loans) be
imposed on, incurred by or asserted against the Administrative Agent in
any way relating to or arising out of, the Commitments, this Agreement,
any other Loan Document or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or
any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. The agreements in this subsection
shall survive the payment of the Loans and all other amounts payable
hereunder.
8.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the
Borrower as though the Administrative Agent were not the Administrative
Agent hereunder or under the other Loan Documents. With respect to the
Loans made by it, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any
Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall
include the Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The
Administrative Agent may resign as Agent upon 30 days' notice to the
Lenders. If the Administrative Agent shall resign as Administrative
Agent under this Agreement and the other Loan Documents, then the
Requisite Lenders shall appoint from among the Lenders a successor
administrative agent for the Lenders, which successor administrative
agent (provided that it shall have been approved by the Borrower, which
approval shall not be unreasonably withheld) shall succeed to the
rights, powers and duties of the Administrative Agent. Effective upon
such appointment and approval, the term "Administrative Agent" shall
mean such successor agent, and the former Administrative Agent's
rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section
shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. (a) Neither this
Agreement, the other Loan Documents nor any terms hereof or thereof may
be amended, supplemented or otherwise modified or waived except in
accordance with the provisions of this subsection. The Requisite
Lenders may, from time to time, (i) enter into with the Borrower
written amendments, supplements or modifications hereto for the purpose
of adding any provisions to this Agreement or changing in any manner
the rights of the Lenders or of the Borrower hereunder or (ii) waive,
on such terms and conditions as the Requisite Lenders may specify in
such instrument, any of the requirements of this Agreement or any
Default or Event of Default and its consequences; provided, however,
that no such waiver and no such amendment, supplement or modification
shall (A) reduce the amount or extend the scheduled date of maturity of
any installment of any Loan provided for in subsection 2.7(b) or of any
required Commitment reduction provided for in subsection 2.7(a) or
reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof or increase the amount
or extend the expiration date of any Lender's Commitment, in each case
without the consent of such Lender, (B) amend, modify or waive any
provision of this subsection or subsection 9.15 hereof or reduce the
percentage specified in the definition of Requisite Lenders, or consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement, in each case without the written
consent of all the Lenders, or (C) amend, modify or waive any provision
of Section 8 without the written consent of the then Administrative
Agent. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the Lenders and shall be
binding upon the Borrower, the Lenders, the Administrative Agent and
all future holders of the Loans. In the case of any waiver, the
Borrower, the Lenders and the Administrative Agent shall be restored to
their former positions and rights hereunder, and any Default or Event
of Default waived shall be deemed to be cured and not continuing; no
such waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.
(b) The Trust Agreement, any Guarantee and any
Security Document and any Acknowledgement and Consent referred to in
Section 4.11 of any Security Agreement listed on Schedule III of the
Trust Agreement may only be amended, supplemented or otherwise
modified, and any provision thereof may only be waived, in accordance
with subsection 9.3 of the Trust Agreement, provided, however, that,
until the first date upon which neither Lucent Technologies Inc. nor
Northern Telecom Inc. or their Affiliates holds loans and commitments
under the Vendor Credit Facility referred to in subsection 4.1(c) to
which it is a party which constitute more than 50% of the aggregate
amount of the loans and commitments under such Vendor Credit Facility,
no such amendment, supplement, modification or waiver shall be
effective without the consent of the Requisite Lenders; and provided,
further, that (i) in no event shall any Collateral (other than any
Collateral which is the subject of any Asset Sale permitted by
subsection 6.6) or Guarantee be released without the consent of Lenders
whose Percentages aggregate at least 75%, as provided in subsection
9.15 and (ii) subsection 9.3(a) of the Trust Agreement may not be
amended, nor may any of the amendments referred to in clause (i) (B) of
the proviso to subsection 9.3(a) of the Trust Agreement be made,
without the consent of all the Lenders.
9.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in writing
(including by facsimile transmission) and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made (a) in
the case of delivery by hand or by courier, when delivered, (b) in the
case of delivery by mail, five days after being deposited in the mails,
postage prepaid, or (c) in the case of delivery by facsimile
transmission, when received in legible form, addressed as follows in
the case of the Borrower, the Vendor and the Administrative Agent, and
in the case of the other parties hereto, to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower: Sprint Spectrum L.P.
4717 Grand Avenue, 5th Floor
Kansas City, Missouri 64112
Attention: Treasurer
Fax: (816) 559-3550
with a copy to:
Sprint Spectrum L.P.
4900 Main Street, 12th Floor
Kansas City, Missouri 64112
Attention: General Counsel
Fax: (816) 559-2591
The Administrative
Agent: The Chase Manhattan Bank
One Chase Manhattan Plaza
New York, New York 10018
Attention: John Huber
Fax: (212) 552-4266
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsection 2.2, 2.6,
2.8 or 2.12(b) shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Administrative
Agent or any Lender, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution
and delivery of this Agreement and the making of the Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrower
agrees (a) to pay or reimburse the Administrative Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative
Agent, (b) to pay or reimburse each Lender and the Administrative Agent
for all its reasonable costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, the reasonable fees and disbursements of counsel to each
Lender and of counsel to the Administrative Agent; provided that the
Borrower shall only reimburse the reasonable fees, disbursements and
other charges of one counsel to the Administrative Agent and the
Lenders in connection with any amendment, restructuring or work-out of
the Loan Documents, (c) to pay, indemnify, and hold each Lender and the
Administrative Agent harmless from, any and all recording and filing
fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be
payable or determined to be payable in connection with the execution
and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and
(d) to pay, indemnify, and hold each Lender and the Administrative
Agent harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such
other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under,
any Environmental Law applicable to the operations of the Borrower, any
of its Subsidiaries or any of their properties (all the foregoing in
this clause (d), collectively, the "indemnified liabilities"), provided
that the Borrower shall have no obligation hereunder to the
Administrative Agent or any Lender with respect to indemnified
liabilities arising from the gross negligence or willful misconduct of
the Administrative Agent or any such Lender. The agreements in this
subsection shall survive repayment of the Loans and all other amounts
payable hereunder.
9.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Lenders, the Administrative Agent and
their respective successors and assigns, except that the Borrower may
not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to any
bank, mutual or other investment fund or financial institution or
affiliate thereof (a "Participant") participating interests in any
Tranche I Term Loan, Tranche II Term Loan or Revolving Credit Loan
owing to such Lender, any Term Loan I Commitment, Term Loan II
Commitment or Revolving Credit Commitment of such Lender or any other
interest of such Lender hereunder or under the other Loan Documents in
each case on a pro rata or non-pro rata basis. In the event of any such
sale by a Lender of a participating interest to a Participant, such
Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the
other Loan Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. No Lender shall be entitled to
create in favor of any Participant, in the participation agreement
pursuant to which such Participant's participating interest shall be
created or otherwise, any right to vote on, consent to or approve any
matter relating to this Agreement or any other Loan Document except for
those specified in clauses (i) and (ii) of the first proviso to
subsection 9.1. The Borrower agrees that if amounts outstanding under
this Agreement are due and unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable
law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be
deemed to have agreed to share with the Lenders the proceeds thereof as
provided in subsection 9.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of subsections 2.14, 2.15 and 2.16 with
respect to its participation in the Commitments and the Loans
outstanding from time to time as if it was a Lender; provided that, in
the case of subsection 2.15, such Participant shall have complied with
the requirements of said subsection and provided, further, that no
Participant shall be entitled to receive any greater amount pursuant to
any such subsection than the transferor Lender would have been entitled
to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time and from
time to time assign to any other Lender or any affiliate of any Lender
or, with the consent of the Borrower and the Administrative Agent
(which in each case shall not be unreasonably withheld), to another
bank, mutual or other investment fund or financial institution or
affiliate thereof (an "Assignee") all or any part of its rights and
obligations under this Agreement (including any Tranche I Term Loan,
Tranche II Term Loan or Revolving Credit Loan or any Term Loan I
Commitment, Term Loan II Commitment or Revolving Credit Commitment, in
each case on a pro rata or non-pro rata basis) and the other Loan
Documents pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit C, executed by such Assignee, such assigning Lender
(and, in the case of an Assignee that is not then a Lender, by the
Borrower and the Administrative Agent) and delivered to the
Administrative Agent for its acceptance and recording in the Register,
provided that, in the case of any such assignment to an additional bank
or financial institution, the sum of the aggregate principal amount of
the Loans and the aggregate amount of unused Commitment being assigned
and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the sum of the aggregate principal
amount of the assigning Lender's remaining Loans and the aggregate
amount of unused Commitment are each not less than $10,000,000 (or such
lesser amount as may be agreed to by the Borrower and the
Administrative Agent). Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to
such Assignment and Acceptance, (i) the Assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder with
a Commitment as set forth therein, and (ii) the assigning Lender
thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such assigning Lender shall cease to be a party
hereto). Notwithstanding any provision of this paragraph (c) and
paragraph (d) or (e) of this subsection, the consent of the Borrower
shall not be required, and, unless requested by the Assignee or the
assigning Lender, new Notes shall not be required to be executed and
delivered by the Borrower, for any assignment that occurs when any of
the events described in Section 7(f) shall have shall have occurred and
be continuing.
(d) The Administrative Agent, on behalf of the
Borrower, shall maintain at the address of the Administrative Agent
referred to in subsection 9.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of
the names and addresses of the Lenders and the registered owners of the
obligations evidenced by the Notes and the principal amount of the
Loans owing to each Lender from time to time. The entries in the
Register shall be conclusive absent manifest error, and the Borrower,
the Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of a Loan or Note
hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary.
Any assignment of any Loan hereunder (whether or not evidenced by a
Note) or Note shall be effective only upon appropriate entries with
respect thereto being made in the Register. Any assignment or transfer
of all or part of any Loan evidenced by a Note evidencing the same
shall be registered on the Register only upon surrender for
registration of assignment or transfer of the Notes evidencing such
Loans, duly endorsed by (or accompanied by a written instrument of
assignment or transfer duly executed by) the holder thereof, and
thereupon one or more new Note(s) in the same aggregate principal
amount shall be issued to the designated Assignee(s) and the old Note
shall be returned to the Borrower marked "cancelled". The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case of an
Assignee that is not then a Lender, by the Borrower and the
Administrative Agent), together with payment by the assignor or
assignee Lender, as agreed between them, to the Administrative Agent of
a registration and processing fee of $3,500, the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on
the effective date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Borrower.
(f) The Borrower authorizes each Lender to disclose
to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee, any and all information in such Lender's
possession concerning the Borrower and its Subsidiaries which has been
delivered to such Lender by or on behalf of the Borrower pursuant to
this Agreement or which has been delivered to such Lender by or on
behalf of the Borrower in connection with such Lender's credit
evaluation of the Borrower and its Subsidiaries prior to becoming a
party to this Agreement.
(g) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this subsection concerning
assignments of Loans relate only to absolute assignments and that such
provisions do not prohibit assignments creating security interests,
including, without limitation, any pledge or assignment by a Lender of
any Loan to any Federal Reserve Bank in accordance with applicable law.
To facilitate such pledge or assignment, the Borrower hereby agrees
that, upon request of any Lender at any time and from time to time
after the Borrower has made its initial borrowing hereunder, the
Borrower shall provide to such Lender, at the Borrower's own expense, a
Note evidencing the Loans owing to such Lender.
9.7 Adjustments; Set-off. (a) If any Lender (a
"Benefitted Lender") shall at any time receive any payment of all or
part of its Loans, or interest thereon, (whether voluntarily or
involuntarily, by set-off, or otherwise) in a greater proportion than
any such payment to any other Lender, if any, in respect of such other
Lender's Loans then due and owing, or interest thereon, such Benefitted
Lender shall purchase for cash from the other Lenders a participating
interest in such portion of each such other Lender's Loans then due and
owing, as shall be necessary to cause such Benefitted Lender to share
the excess payment ratably with each of the other Lenders, provided,
however, that if all or any portion of such excess payment is
thereafter recovered from such Benefitted Lender, such purchase shall
be rescinded, and the purchase price returned, to the extent of such
recovery, but without interest and, provided, further, that,
notwithstanding the foregoing, if such Benefitted Lender shall receive
such payment at a time when a Notice of Enforcement shall have been
delivered to the Trustee and be in effect, such Benefitted Lender shall
turn over to the Trustee an amount equal to such payment for deposit in
the Collateral Account (as defined in the Trust Agreement) to be
applied in the manner provided for in the Trust Agreement.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without
prior notice to the Borrower, any such notice being expressly waived by
the Borrower to the extent permitted by applicable law, upon any amount
becoming due and payable by the Borrower hereunder (whether at the
stated maturity, by acceleration or otherwise) to set-off and
appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and
any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrower.
Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by
such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the
same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Borrower and the Administrative
Agent.
9.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
9.10 Integration. This Agreement and the other Loan
Documents represent the agreement of the Borrower, the Administrative
Agent and the Lenders with respect to the subject matter hereof, and
there are no promises, undertakings, representations or warranties by
the Administrative Agent or any Lender relative to subject matter
hereof not expressly set forth or referred to herein or in the other
Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CON-
STRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
9.12 Submission To Jurisdiction; Waivers. Each of
the Borrower, the Administrative Agent and the Lenders hereby irrevo-
ably and unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement, or for
recognition and enforcement of any judgement in respect
thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United
States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to it at its address set forth
or referred to in subsection 9.2 or at such other address of
which the other parties shall have been notified pursuant
thereto; and
(d) agrees that nothing herein shall affect the right
to effect service of process in any other manner permitted by
law or shall limit the right to sue in any other jurisdiction.
9.13 Confidentiality. Each Lender agrees to keep
confidential all nonpublic information (a) provided to it by or on
behalf of the Borrower or any of its Subsidiaries pursuant to or in
connection with this Agreement or (b) obtained by such Lender based on
a review of the books and records of the Borrower or any of its
Subsidiaries; provided that nothing herein shall prevent any Lender
from disclosing any such information (i) to the Administrative Agent or
any other Lender, (ii) to any prospective Transferee which shall have
agreed to comply with the provisions of this subsection, (iii) to its
employees, directors, agents, attorneys, accountants, affiliates and
other professional advisors who have been made aware of the
confidential nature of such information and have agreed to maintain the
confidentiality thereof, (iv) upon the request or demand of any
Governmental Authority having jurisdiction over such Lender and the
authority to make such request or demand, (v) in response to any order
of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, provided that prior
written notice of such disclosure is given to the Borrower (if legally
permitted), (vi) which has been publicly disclosed other than in breach
of this Agreement or (vii) in connection with the exercise of any
remedy hereunder or under any other Loan Document or any litigation
involving any Loan Document. Each Lender acknowledges that the
provisions of this subsection 9.13 are material to this Agreement and
are specifically enforceable.
9.14 No-Recourse. No claim may be made under this
Agreement or any other Loan Document against any of the direct or
indirect partners of the Borrower for the payment of principal of, or
interest on, the Loans, or any expenses or other amounts payable
hereunder or under any other Loan Document, provided, however, that
this subsection shall not (a) affect the validity or enforceability of
the obligations of any Partner under the Capital Contribution Agreement
or (b) operate as a waiver of any rights or claims against any Partner
arising out of or resulting from such Partner's misrepresentations or
fraud in or in respect of the Capital Contribution Agreement.
9.15 Release of Guarantees and Collateral. If the
Borrower shall wish to effect the release of any Collateral or any
Guarantee, it shall give notice thereof to the Administrative Agent.
Upon receipt of such notice, the Administrative Agent shall request the
Lenders to give notice to the Administrative Agent in writing of their
approval or disapproval of the requested release. If Lenders whose
Percentages aggregate at least 75% approve such request, the
Administrative Agent shall give written notice of such approval to the
Borrower, and such release may thereafter be effected without violation
of this Agreement. For avoidance of doubt, no approval of the Requisite
Lenders shall be necessary to effect the release of any Collateral
which is the subject of any Asset Sale permitted by subsection 6.6.
9.16 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
LENDERS AND THE ADMINISTRATIVE AGENT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
SPRINT SPECTRUM L.P.
By: Sprint Spectrum
Holding Company, L.P.,
its general partner
By: __/s/ Robert E. Sleet, Jr.
Title: Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a
Lender
By: /s/ Mary E. Cameron_____
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ Dana Klein
Title: Vice President
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AKTIENGESELLSCHAFT,
NEW YORK BRANCH
By: /s/ David Rockwell
Title: Senior Vice President
By: /s/ Christian Walter
Title: Assistant Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Arnaud Collin du Bocage
Title: Executive Vice President and
General Manager
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Stephen C. Levi
Title: Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Doug Stuart
Title: Senior Vice President
SOCIETE GENERALE
By: : /s/ John Sadik-Khan
Title: Vice President
THE BANK OF NEW YORK COMPANY, INC.
By: /s/ Kalpana Raina
Title: Authorized Signer
THE MITSUBISHI
TRUST AND BANKING CORPORATION
By: /s/ Hachiro Hosada
Title: Senior Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
By: /s/ Charles Columbus
Title: Managing Director
By: /s/ Michael F. McWalters
Title: Managing Director
BANQUE PARIBAS NEW YORK
By: /s/ Philippe Vuarchex
Title: Vice President
By: /s/ Everett M. Schenk
Title: Managing Director
CHIAO TUNG BANK CO., LTD.,
NEW YORK AGENCY
By: /s/ Samuel S.T. Liu
Title: Vice President and Deputy
General Manager
CREDIT LOCAL DE FRANCE,
NEW YORK AGENCY
By: /s/ Philippe Ducos
Title: Deputy General Manager
FLEET NATIONAL BANK
By: /s/ Jeffrey J. McLaughlin
Title: Senior Vice President
KOREA FIRST BANK,
NEW YORK AGENCY
By: /s/ Myung Ho Oh
Title: Deputy General Manager
THE SUMITOMO BANK, LIMITED,
CHICAGO BRANCH
By: /s/ Hiroyuki Iwami
Title: Joint General Manager
THE FIRST NATIONAL BANK OF BOSTON
By: /s/Shepard D. Rainie
Title: Director
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Jeffrey Cole
Title: Senior Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH
By: /s/ Armund J. Schoen, Jr.
Title: Vice President and
Deputy General Manager
THE SAKURA BANK, LIMITED
By: /s/ Tamihiro Kawauchi
Title: Senior Vice President and Head of
Real Estate/Project Finance Dept.
THE SANWA BANK, LIMITED
By: /s/ Laurance J. Bressler
Title: Vice President and Area Manager
BANCA COMMERCIALE ITALIANA,
CHICAGO BRANCH
By: /s/ Diana R. Lamb
Title: Vice President
By: /s/ Matthew V. Trujillo
Title: Assistant Vice President
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
By: /s/ John P. Judge
Title: Vice President
EXPORT DEVELOPMENT CORPORATION
By: /s/ Peter Foran
Title: Vice President,
Information Technologies Team
By: /s/ Rajesh Sharma
Title: Financial Services Manager,
Project Finance and Equity
THE FUJI BANK, LIMITED
By: /s/ Hidehiko Ide
Title: General Manager
SKANDINAVISKA ENSKILDA BANKEN CORPORATION
By: /s/ Stefan Hegneil
Title: Head of Commercial Banking
By: /s/ Philip Montemurro
Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD.,
CHICAGO BRANCH
By: /s/ Seilchiro Ino
Title: Vice President
THE NIPPON CREDIT BANK, LTD.,
LOS ANGELES AGENCY
By: /s/ Bernardo E. Correa-Henschke
Title: Vice President and Senior Manager
THE ROYAL BANK OF SCOTLAND PLC
By: /s/ Russell M. Gibson
Title: Vice President and Deputy Manager
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK BRANCH
By: /s/ Suraj P. Bhatia
Title: Senior Vice President,
Manager, Corporate Finance Department
CRESTAR BANK
By: /s/Thomas C. Palmer
Title: Vice President
VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME TRUST
By: /s/ Brian W. Good
Title: Vice President
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ John E. Schlifske
Title: Vice President
KZH HOLDING CORPORATION
By: /s/ Robert Goodwyn
Title: Authorized Agent
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, AS TRUSTEE OF A
COMMINGLED TRUST FUND
By: /s/David T. Ellis
Title: Vice President
CHL HIGH YIELD LOAN PORTFOLIO
(A UNIT OF THE CHASE MANHATTAN BANK)
By: /s/ Andrew D. Gordon
Title: Managing Director
PROTECTIVE LIFE INSURANCE COMPANY
By: /s/ Mark K. Okada
Title: Executive Vice President
ALLSTATE INSURANCE COMPANY
By: /s/ Charles D. Mires
Title: Authorized Signatory
By: /s/ Stephen M. Laude
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
By: /s/ Charles D. Mires
Title: Authorized Signatory
By: /s/ Stephen M. Laude
Title: Authorized Signatory
ORIX USA CORPORATION
By: /s/ Hiroyuki Miyauchi
Title: Senior Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company, its
investment manager
By: /s/Mark L. Gold
Title: Managing Director
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By: /s/ R. Douglas Henderson
Title: Authorized Signatory
SCHEDULE I
COMMITMENTS; ADDRESSES OF LENDERS
Name and Revolving Term Term
Address Credit Loan I Loan II Total
of Lender Commitment Commitment Commitment Commitments
The Chase Manhattan Bank [
One Chase Manhattan Plaza
New York, NY 10018
Attn: John Huber
Tel: (212) 552-1366
Fax: (212) 552-4266
Bankers Trust Company
130 Liberty Street
New York, NY 10006
Attn: Dana Klein
Tel: (212) 250-1724
Fax: (212) 250-7218
Bayerische Hypotheken-und
WechselBank Aktiengesellschaft,
New York Branch
Financial Square
32 Old Slip, 32nd Floor
New York, NY 10005
Attn: Christian Walter
Tel: (212) 440-0742
Fax: (212) 440-0741
Banque Nationale de Paris
209 S. LaSalle
Chicago IL 60604
Attn: Rosalie Hawley
Tel: (312) 977-2203
Fax: (312) 977-1380
Credit Lyonnais New York Branch
1301 Avenue of the Americas
New York, NY 10019
Attn: Stephen Levi
Tel: (212) 261-7324
Fax: (212) 261-3288
NationsBank of Texas, N.A.
901 Main Street, 64th Floor
Dallas, TX 75202
Attn: Doug Stuart
Tel: (214) 508-0922
Fax: (214) 508-9390
Societe Generale
1221 Avenue of the Americas
New York, NY 10020
Attn: John Sadik-Khan
Tel: (212) 278-6873
Fax: (212) 278-6240
The Bank of New York Company, Inc.
One Wall Street, 16th Floor
New York, NY 10286
Attn: Jim Whitaker
Tel: (212) 635-8843
Fax: (212) 635-8595
The Mitsubishi Trust and Banking
Corporation
520 Madison Avenue, 26th Floor
New York, NY 10022
Attn: Beatrice Kossodo
Tel: (212) 891-8363
Fax: (212) 644-6825
Westdeutsche Landesbank Girozentrale,
New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attn: Charles Columbus
Tel: (212) 852-6164
Fax: (212) 921-5947
Banque Paribas New York
787 Seventh Avenue
New York, NY 10019
Attn: John Andersen
Tel: (212) 841-2229
Fax: (212) 841-2217
Chiao Tung Bank Co., Ltd.,
New York Agency
One World Financial Center, 30th Fl.
New York, NY 10281
Attn: Carbin Lin/ Robert Chen
Tel: (212) 285-2666
Fax: (212) 285-2922
Credit Local de France,
New York Agency
450 Park Avenue, 3rd Floor
New York NY 10022
Attn: Michael Wiskind
Tel: (212) 753-2349
Fax: (212) 753-5522
Fleet National Bank
75 State Street
Boston, MA 02109
Attn: Jeffrey J. McLaughlin
Tel: (617) 346-3774
Fax: (617) 346-3777
Korea First Bank, New York Agency
410 Park Avenue, 8th Floor
New York, NY 10022
Attn: Bong Y. Kim
Tel: (212) 593-2525
Fax: (212) 319-0255
The Sumitomo Bank, Limited,
Chicago Branch
233 South Wacker Drive
Suite 4800
Chicago, IL 60606-6448
Attn: John Byrd
Tel: (312) 876-6453
Fax: (312) 876-6436
The First National Bank of Boston
100 Federal Street
Boston, MA 02110
Attn: Julie Jalelian
Tel: (617) 434-9974
Fax: (617) 434-3401
The Industrial Bank of Japan,
Limited
245 Park Avenue
New York, NY 10167-0037
Attn: A. Kawai/R. Garcia
Tel: (212) 309-6521
Fax: (212) 949-0134
The Long-Term Credit Bank of Japan,
Ltd. Chicago Branch
190 S. LaSalle Street, Suite 800
Chicago, IL 60603
Attn: Gregory Hara
Tel: (312) 704-5454
Fax: (312) 704-8505
The Sakura Bank, Limited
277 Park Avenue, 46th Fl.
New York, NY 10172
Attn: Kazumiro Kuramoto
Tel: (212) 756-6802
Fax: (212) 888-7651
The Sanwa Bank, Limited
10 South Wacker Drive, Suite 3100
Chicago, IL 60606
Attn: Laurance J. Bressler/Kenneth
Eichenwald
Tel: (212) 339-6213
Fax: (212) 754-2360
Banca Commerciale Italiana,
Chicago Branch
150 N. Michigan Avenue, Suite 1500
Chicago, IL 60601
Attn: Matthew V. Trujillo
Tel: (312) 346-1112
Fax: (312) 346-5758
Bank of Tokyo-Mitsubishi
Trust Company
1251 Avenue of the Americas,
12th Floor
New York NY 10020-1104
Attn: Rolando Uy
Tel: (212) 782-4383
Fax: (212) 782-4935
Export Development Corporation
151 O'Connor Street
Ottawa, Ontario K1A 1K3
Attn: Robert Forbes
Tel: (613) 598-2844
Fax: (613) 598-6858
The Fuji Bank, Limited
225 West Wacker Drive, Suite 2000
Chicago, IL 60606
Attn: Richard T. Ashbeck
Tel: (312) 621-3380
Fax: (312) 621-0539
Skandinaviska Enskilda Banken
Corporation
245 Park Avenue, 42nd Floor
New York, NY 10167
Attn: Alan Plamer/Andrew Balin
Tel: (212) 907-4700
Fax: (212) 370-1709
The Dai-ichi Kangyo Bank, Ltd.,
Chicago Branch
10 South Wacker Drive, 26th Floor
Chicago, IL 60606
Attn: Gary Marthalar
Tel: (312) 715-6451
Fax: (312) 876-2011
The Nippon Credit Bank, Ltd.,
Los Angeles Agency
550 S. Hope Street, Suite 2500
Los Angeles, CA 90071
Attn: Jay Schwartz
Tel: (213) 243-5722
Fax: (213) 892-0111
The Royal Bank of Scotland plc
88 Pine Street
Wall Street Plaza, 26th Fl.
New York, NY 10023
Attn: Karen Stefancic
Tel: (212) 269-3390
Fax: (212) 480-0791
The Sumitomo Trust & Banking Co.,
Ltd., New York Branch
527 Madison Avenue
New York, NY 10022
Attn: Robin Schreiber
Tel: (212) 326-0781
Fax: (212) 418-4848
Crestar Bank
919 East Main Street
Richmond, VA 23219
Attn: Thomas C. Palmer
Tel: (804) 782-5833
Fax: (804) 782-5413
Van Kampen American Capital Prime
Rate Income Trust
One Parkview Plaza
Oakbrook Terrace, IL 60181
Attn: Brian Murphy
Tel: (630) 684-6479
Fax: (630) 684-6740
Copy to: State Street Bank & Trust
Company Corporate Trust Department
P.O. Box 778
Boston, MA 02102
Attn: Laura Magazu
Tel: (617) 664-5481
Fax: (617) 664-5366
The Northwestern Mutual Life
Insurance Company
720 East Wisconsin Avenue
Milwaukee, WI 53202
Attn: John E. Schlifske
Tel: (414) 299-2454
Fax: (414) 299-7124
KZH Holding Corporation
In care of The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, NY 10001
Attn: Robert Goodwyn
Tel: (212) 552-1366
Fax: (212) 552-1366
Morgan Guaranty Trust Company of New
York as Trustee of a Commingled
Trust Fund
522 Fifth Avenue
New York, NY 10036
Attn: E. Clifford Cole
Tel: (212) 837-2107
Fax: (212) 837-2677
CHL High Yield Loan Portfolio (a
unit of The Chase Manhattan Bank)
380 Madison Avemue - 12th Floor
New York, NY 10017
Attn: Andrew D. Gordon
Tel: (212) 622-3064
Fax: (212) 622-3797
Protective Life Insurance Company
1150 Two Galleria Tower
13455 Noel Road LB #45
Dallas, TX 75240
Attn: Mark Okada
Tel: (972) 233-4300
Fax: (972) 233-4343
Allsate Insurance Company
3075 Sanders Road
Northbrook, IL 60062-7127
Attn: Linda Dewine
Tel: (847) 402-7946
Fax: (847) 402-3092
Allstate Life Insurance Company
3075 Sanders Road
Northbrook, IL 60062-7127
Attn: Linda Dewine
Tel: (847) 402-7946
Fax: (847) 402-3092
Orix USA Corporation
780 Third Avenue, 48th fl.
New York, NY 10017
Attn: Chet Malhotra
Tel: (212) 418-8356
Fax: (212) 418-8308
Crescent/Mach I Partners, L.P.
TCW Asset Management Company
200 Park Avenue, Suite 2200
New York, NY 10166-0228
Attn: Mark L. Gold
Tel: (212) 297-4000
Fax: (212) 297-4159
Copy to: State Street Bank
and Trust Co.
Two International Place
Boston, MA 02110
Attn: Jackie Sweeney
Tel: (617) 664-5482
Fax: (617) 664-5366
Merrill Lynch Senior Floating Rate
Fund, Inc.
800 Scudders Mill Road - Area 2C
Plainsboro, NJ 08536
Attn: Jill Montayne
Tel: (609) 282-3102
Fax: (609) 282-2550
Copy To: MLAM Accounting
500 College Road - 4E
Plainsboro, NJ 08536
Attn: John Dugan
Tel: (609) 282-7705
Fax: (609) 282-7616 ]*
Total $1,700,000,000 $150,000,000 $150,000,000 $2,000,000,000
* The brackets indicate information for which confidential treatment has been
requested from the Commission pursuant to Rule 24b-2 of the Securities Exchange
Act of 1934, as amended.
<PAGE>
SCHEDULE II
THE BORROWER'S MTA'S
Birmingham
Boston-Providence
Buffalo-Rochester
Dallas-Fort Worth
Denver
Des Moines-Quad Cities
Detroit
Indianapolis
Kansas City
Little Rock
Louisville-Lexington-Evansville
Miami-Fort Lauderdale
Milwaukee
Minneapolis-St. Paul
Nashville
New Orleans-Baton Rouge
New York
Oklahoma City
Phoenix
Pittsburgh
Portland
St. Louis
Salt Lake City
San Antonio
San Francisco-Oakland-San Jose
Seattle
Spokane-Billings
Tulsa
Wichita
<PAGE>
SCHEDULE III
EXISTING INDEBTEDNESS
10% Notes Payable - Zimmer Co., due 1006 $757,522.61
<PAGE>
SCHEDULE IV
EXISTING LIENS
-None-
<PAGE>
SCHEDULE V
EXISTING GUARANTEE OBLIGATIONS
-None-
<PAGE>
EXHIBIT A-1
FORM OF
REVOLVING CREDIT NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$ New York, New York
October __, 1996
FOR VALUE RECEIVED, the undersigned, SPRINT SPECTRUM L.P., a
Delaware limited partnership (the "Borrower"), hereby unconditionally promises
to pay to the order of (the "Lender") at the office of The Chase Manhattan Bank
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, the principal
amount of DOLLARS ($ ) or, if less, the unpaid principal amount of the Revolving
Credit Loans made by the Lender pursuant to subsection 2.1 of the Credit
Agreement, as hereinafter defined. The principal amount shall be paid in the
amounts and on the dates specified in subsection 2.7 of the Credit Agreement.
The Borrower further agrees to pay interest in like money at such office on the
unpaid principal amount hereof from time to time outstanding at the rates and on
the dates specified in subsection 2.9 of the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of each Revolving Credit Loan made pursuant to the Credit Agreement and the date
and amount of each payment or prepayment of principal thereof, each continuation
thereof, each conversion of all or a portion thereof to another Type and, in the
case of Eurodollar Loans, the length of each Interest Period with respect
thereto. Each such endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed. The failure to make any such endorsement
shall not affect the obligations of the Borrower in respect of such Revolving
Credit Loan.
This Note (a) is one of the Notes referred to in the Credit
Agreement, dated as of October 2, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions and entities from time to
time parties thereto and The Chase Manhattan Bank, as Administrative Agent, (b)
is subject to the provisions of the Credit Agreement and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Loan
Documents. Reference is hereby made to the Loan Documents for a description of
the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
No claim may be made under this Note against any of the direct
or indirect partners of the Borrower for the payment of principal of, or
interest on, the Loans, or any other amounts payable under the Credit Agreement
or this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPRINT SPECTRUM L.P.
By:Sprint Spectrum
Holding Company, L.P.,
its general partner
By:
Title:
<PAGE>
Schedule A
to Revolving Credit Note
------------------------
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
- ----- ------- ----------- ---------- ------------- --------------- -------------
Amount of Amount of
Amount Principal ABR Loans
Amount Converted of ABR Converted to Unpaid Prin-
of ABR to Loans Eurodollar cipal Balance Notation
Date Loans ABR Loans Repaid Loans of ABR Loans Made By
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
<PAGE>
Schedule B
to Revolving Credit Note
------------------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- ----- -------- --------- ---------- ---------- ----------- ----------- ---------
Interest Amount of Amount of Unpaid
Amount Period & Principal Eurodollar Principal
Amount Converted Eurodollar of Loans Con- Balance
of Euro to Euro- Rate with Eurodollar verted to of Notation
dollar dollar Respect Loans ABR Eurodollar Made
Date Loans Loans Thereto Repaid Loans Loans Eurodollar
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
<PAGE>
EXHIBIT A-2
FORM OF
TERM NOTE
THIS NOTE MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND
PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. TRANSFERS OF THIS NOTE
MUST BE RECORDED IN THE REGISTER MAINTAINED BY THE ADMINISTRATIVE AGENT PURSUANT
TO THE TERMS OF SUCH CREDIT AGREEMENT.
$ New York, New York
October __, 1996
FOR VALUE RECEIVED, the undersigned, SPRINT SPECTRUM L.P., a
Delaware limited partnership (the "Borrower"), hereby unconditionally promises
to pay to the order of (the "Lender") at the office of The Chase Manhattan Bank
located at 270 Park Avenue, New York, New York 10017, in lawful money of the
United States of America and in immediately available funds, the principal
amount of DOLLARS ($ ) or, if less, the unpaid principal amount of the Term
Loans made by the Lender pursuant to subsection 2.1 of the Credit Agreement, as
hereinafter defined. The principal amount shall be paid in the amounts and on
the dates specified in subsection 2.7 of the Credit Agreement. The Borrower
further agrees to pay interest in like money at such office on the unpaid
principal amount hereof from time to time outstanding at the rates and on the
dates specified in subsection 2.9 of the Credit Agreement.
The holder of this Note is authorized to endorse on the
schedules annexed hereto and made a part hereof or on a continuation thereof
which shall be attached hereto and made a part hereof the date, Type and amount
of the Term Loan and the date and amount of each payment or prepayment of
principal with respect thereto, each conversion of all or a portion thereof to
another Type, each continuation of all or a portion thereof as the same Type
and, in the case of Eurodollar Loans, the length of each Interest Period with
respect thereto. Each such endorsement shall constitute prima facie evidence of
the accuracy of the information endorsed. The failure to make any such
endorsement shall not affect the obligations of the Borrower in respect of such
Term Loan.
This Note (a) is one of the Notes referred to in the Credit
Agreement, dated as of October 2, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
Lender, the other banks and financial institutions and entities from time to
time parties thereto and The Chase Manhattan Bank, as Administrative Agent, (b)
is subject to the provisions of the Credit Agreement and (c) is subject to
optional and mandatory prepayment in whole or in part as provided in the Credit
Agreement. This Note is secured and guaranteed as provided in the Loan
Documents. Reference is hereby made to the Loan Documents for a description of
the properties and assets in which a security interest has been granted, the
nature and extent of the security and the guarantees, the terms and conditions
upon which the security interests and each guarantee were granted and the rights
of the holder of this Note in respect thereof.
Upon the occurrence of any one or more of the Events of
Default, all amounts then remaining unpaid on this Note shall become, or may be
declared to be, immediately due and payable, all as provided in the Credit
Agreement.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise, hereby
waive presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit
Agreement.
No claim may be made under this Note against any of the direct
or indirect partners of the Borrower for the payment of principal of, or
interest on, the Loans, or any other amounts payable under the Credit Agreement
or this Note.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SPRINT SPECTRUM L.P.
By: Sprint Spectrum
Holding Company, L.P.,
its general partner
By:
Title:
<PAGE>
Schedule A
to Term Note
------------
LOANS, CONVERSIONS AND REPAYMENTS OF ABR LOANS
- ----- ------- ----------- ---------- ------------- --------------- -------------
Amount of Amount of
Amount Principal ABR Loans
Amount Converted of ABR Converted to Unpaid Prin-
of ABR to Loans Eurodollar cipal Balance Notation
Date Loans ABR Loans Repaid Loans of ABR Loans Made By
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
- ----- ------- ----------- ---------- ------------- --------------- -------------
<PAGE>
Schedule B
to Term Note
------------
LOANS, CONTINUATIONS, CONVERSIONS AND REPAYMENTS OF EURODOLLAR LOANS
- ----- -------- --------- ---------- ---------- ----------- ----------- ---------
Interest Amount of Amount of Unpaid
Amount Period & Principal Eurodollar Principal
Amount Converted Eurodollar of Loans Con- Balance
of Euro to Euro- Rate with Eurodollar verted to of Notation
dollar dollar Respect Loans ABR Eurodollar Made
Date Loans Loans Thereto Repaid Loans Loans By
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
- ----- -------- --------- ---------- ---------- ----------- ---------- ----------
<PAGE>
EXHIBIT B-1
FORM OF LEGAL OPINION OF SIMPSON THACHER & BARTLETT
October __, 1996
The Chase Manhattan Bank, as Administrative Agent
under the Credit Agreement, as
hereinafter defined (the "Agent")
and
The Lenders listed on Schedule I hereto which are parties to the Credit
Agreement on the date hereof
Re: Credit Agreement, dated as of October 2, 1996 (the
"Credit Agreement"), among Sprint Spectrum L.P. (the
"Borrower"), the entities from time to time parties
thereto as lenders (the "Lenders") and the Agent
Ladies and Gentlemen:
We have acted as counsel to the Borrower in connection with
the preparation, execution and delivery of the Credit Agreement. Unless
otherwise indicated, capitalized terms used but not defined herein shall have
the respective meanings set forth in the Credit Agreement. This opinion is
furnished to you pursuant to subsection 4.1(j)(i) of the Credit Agreement.
In connection with this opinion, we have examined:
(A) the Credit Agreement; and
(B) the form of the Notes which may be delivered pursuant to
the Credit Agreement after the date hereof.
We also have examined the originals, or certified, conformed or reproduction
copies, of such records, agreements, instruments and other documents and have
made such other investigations as we have deemed relevant and necessary in
connection with the opinions expressed herein. As to questions of fact material
to this opinion, we have relied upon certificates as to matters of fact of
public officials and of officers and representatives of the Loan Parties. In
addition, we have examined, and have relied as to matters of fact upon the
representations made in the Loan Documents.
In rendering the opinions set forth below, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
As to all matters covered by the opinion letter delivered to
you on the date hereof by Charles R. Wunsch, Associate General Counsel of the
Borrower, we have assumed the accuracy of the legal opinions expressed therein
to the extent relating to the law of the State of Missouri and the State of
Delaware.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth herein, we are of the opinion that:
(1) The Credit Agreement constitutes, and each Note, when
executed and delivered by the Borrower in accordance with the Credit Agreement,
will constitute, a valid and legally binding obligation of the Borrower
enforceable against the Borrower in accordance with its terms.
(2) The Borrower is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended. The Borrower is not a
"holding company" within the meaning of the Public Utility Holding Company Act
of 1935.
(3) No consent, order or authorization of, filing with, notice
to or approval or other act by or in respect of, any United States or State of
New York Governmental Authority is required to be obtained or made by the
Borrower in connection with the borrowings under the Credit Agreement or with
the execution, delivery, performance, validity or enforceability of the Credit
Agreement or any Notes other than those filings required in connection with the
perfection of the Liens created by the Security Documents.
(4) The execution, delivery and performance of the Credit
Agreement and any Notes, the borrowings under the Credit Agreement and the use
of the proceeds thereof will not violate any law, rule or regulation of any
United States or State of New York Governmental Authority applicable to the
Borrower or any of its Subsidiaries.
Our opinion in paragraph (1) above is subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
We express no opinion with respect to:
(A) any matters subject to the Communications Act of
1934, as amended;
(B) the effect of any provision of the Credit Agreement
insofar as it provides that any Person purchasing a
participation from a Lender may exercise set-off or
similar rights with respect to such participation or
that any Lenders may exercise set-off or similar
rights other than in accordance with applicable law;
(C) the effect of any provision of the Credit Agreement
relating to indemnification or exculpation that is
inconsistent with public policy; and
(D) the effect of the compliance or noncompliance with
any federal or state laws or regulations applicable
to any of the Lenders or their affiliates because of
their legal or regulatory status or the nature of
their businesses.
In addition, we express no opinion as to the enforceability of
any provision of the Credit Agreement whereby the Borrower purports to submit to
the subject matter jurisdiction of the United States District Court for the
Southern District of New York. We note the limitations of 28 U.S.C. ss. 1332 on
federal court jurisdiction where diversity of citizenship is lacking, and we
also note that such submission cannot supersede that court's discretion in
determining whether to transfer an action from one federal court to another
under 28 U.S.C. ss. 1404(a).
We are members of the Bar of the State of New York, and we do
not express any opinion herein concerning any law other than the law of the
State of New York and the federal law of the United States.
This opinion letter is rendered to you in connection with the
above-described transactions. It may not be relied upon by you for any other
purpose, or relied upon by any other Person without our prior written consent.
Very truly yours,
SIMPSON THACHER & BARTLETT
<PAGE>
SCHEDULE I
LENDERS
[To be provided]
<PAGE>
EXHIBIT B-2
FORM OF LEGAL OPINION OF CHARLES R. WUNSCH, ESQ.
October __, 1996
The Chase Manhattan Bank, as Administrative Agent
under the Credit Agreement (the "Agent")
and
The Lenders listed on Schedule I to this opinion letter which are parties
to the Credit Agreement on the date of this opinion letter
Re: Credit Agreement, dated as of October 2, 1996 (the
"Credit Agreement"), between Sprint Spectrum L.P.
(the "Borrower"), the lending institutions identified
in the Credit Agreement (the "Lenders") and the
Agent
Ladies and Gentlemen:
I am the Associate General Counsel of the Borrower and have
acted in such capacity in connection with the preparation, execution and
delivery of the Credit Agreement. Unless otherwise indicated, capitalized terms
used but not defined in this opinion letter shall have the respective meanings
set forth in the Credit Agreement. This opinion is furnished to you pursuant to
subsection 4.1(j)(ii) of the Credit Agreement.
In connection with this opinion letter, I have examined or had
attorneys on my staff examine:
(A) the Credit Agreement; and
(B) the form of the Notes which may be delivered pursuant to
the Credit Agreement after the date of this opinion letter.
I or attorneys on my staff also have examined the originals, or certified,
conformed or reproduction copies, of such records, agreements, instruments and
other documents and have made such other investigations as I have deemed
relevant and necessary in connection with the opinions expressed in this opinion
letter. As to questions of fact material to this opinion, I have relied upon
certificates as to matters of fact of public officials and of officers and
representatives of the Borrower. In addition, I have examined, and have relied
as to matters of fact upon the representations made in the Loan Documents.
In rendering the opinions set forth below, I have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as certified or photostatic
copies, and the authenticity of the originals of such latter documents.
Based upon and subject to the foregoing, and subject to the
qualifications and limitations set forth in this opinion letter, I am of the
opinion that:
(1) Each of the Borrower and its Restricted Subsidiaries (a)
is duly formed, validly existing and in good standing under the laws of
the jurisdiction of the State of Delaware, (b) has the partnership
power and authority to own and operate its property, to lease the
property it operates as lessee and to conduct the business in which it
is currently engaged and (c) is duly qualified to do business and in
good standing in each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect.
(2) The Borrower has the power and authority to make, execute,
deliver and perform the Credit Agreement and any Notes and to borrow
under the Credit Agreement and has taken all necessary partnership
action to authorize the borrowings on the terms and conditions of the
Credit Agreement and to authorize the execution, delivery and
performance of the Credit Agreement and any Notes. The Credit Agreement
has been duly executed and delivered on behalf of the Borrower.
(3) No consent, order or authorization of, filing with, notice
to or approval or other act by or in respect of, any United States or
State of Missouri Governmental Authority is required to be obtained or
made by the Borrower in connection with the borrowings under the Credit
Agreement or with the execution, delivery, performance, validity or
enforceability of the Credit Agreement or any Notes other than those
filings required in connection with the perfection of the Liens created
by the Security Documents.
(4) The execution, delivery and performance of the Credit
Agreement and any Notes, the borrowings under the Credit Agreement and
the use of the proceeds thereof will not violate the partnership
agreement of Holding or the Borrower or any of its Subsidiaries or any
law, rule or regulation of any United States or State of Missouri
Governmental Authority applicable to the Borrower or any of its
Subsidiaries, or, to my knowledge, any Contractual Obligation of, or
any determination, judgment, writ, injunction, decree or order of any
arbitrator or court or other United States or State of Missouri
Governmental Authority applicable to, the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or
revenues pursuant to any such Partnership Agreement, law, rule or
regulation or, to my knowledge, any such Contractual Obligation or any
determination, judgment, writ, injunction, decree or order or
Contractual Obligation, other than the Liens created by the Security
Documents.
(5) To my knowledge, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is
pending or threatened by or against the Borrower or any of its
Restricted Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of the Loan Documents or
(b) which could reasonably be expected to have a Material Adverse
Effect.
(6) To my knowledge, the following constitute all the
Subsidiaries of the Borrower as of the date of this opinion letter: (a)
WirelessCo, L.P. (the sole general partner of which is the Borrower and
the sole limited partner of which is MinorCo), (b) Sprint Spectrum
Equipment Company, L.P. (the sole general partner of which is the
Borrower and the sole limited partner of which is MinorCo), (c) Sprint
Spectrum Realty Company, L.P. (the sole general partner of which is the
Borrower and the sole limited partner of which is MinorCo) and (d)
Sprint Spectrum Finance Corporation, a Delaware corporation and a
wholly owned Subsidiary of the Borrower.
I express no opinion with respect to any matters subject to
the Communications Act of 1934, as amended.
I am a member of the Bar of the State of Missouri, and I do
not express any opinion herein concerning any law other than the law of the
State of Missouri, the federal law of the United States and the Delaware Revised
Uniform Limited Partnership Act.
This opinion letter is rendered to you in connection with the
above described transactions. It may not be relied upon by you for any other
purpose, or relied upon by any other Person without my prior written consent.
Very truly yours,
Charles R. Wunsch
<PAGE>
EXHIBIT B-3
FORM OF LEGAL OPINION OF MORRISON & FOERSTER LLP
October __, 1996
The Chase Manhattan Bank, as Administrative
Agent under the Credit Agreement, as
hereinafter defined (the "Agent")
and
The Lenders listed on Schedule I hereto which are parties to the Credit
Agreement on the date hereof
Re: Credit Agreement, dated as of October 2, 1996
(the "Credit Agreement"), among Sprint Spectrum L.P.
(the "Borrower"), the lending institutions identified
in the Credit Agreement (the "Lenders") and the Agent
Ladies and Gentlemen:
We have been requested to provide you with this opinion
pursuant to subsection 4.1(j)(iii) of the Credit Agreement. This opinion
addresses certain licenses listed in Schedule II that are held by WirelessCo,
L.P. ("WirelessCo"), a subsidiary of the Borrower. Except as otherwise provided
herein, capitalized terms used in this opinion shall be defined as set forth in
the Credit Agreement.
This Firm has been engaged as special Federal Communications
Commission ("FCC") counsel to the Borrower in connection with the Credit
Agreement. WirelessCo has been authorized by the FCC to provide Personal
Communications Services ("PCS"). As special FCC counsel, this opinion is limited
to those matters within the jurisdiction of the FCC pertaining to PCS. As to
questions of law, the following opinions are based upon only the Communications
Act of 1934, as amended by the Telecommunications Act of 1996 ("Communications
Act"), and the rules, regulations and published opinions of the FCC relating
thereto. We offer no opinion as to any other federal law or the laws, rules or
regulations of any state or local government or regulatory authority.
In connection with this opinion, we have examined, and relied
upon, the FCC licensing records and copies of documents filed by WirelessCo with
the FCC and have compared these records to the licenses listed in Schedule II
(the "Licenses"). We also have obtained, and relied upon as to matters of fact,
without independent investigation, such certifications from officers of the
Borrower (the "Officers' Certificates") as we have deemed necessary for purposes
of this opinion. We have also examined FCC orders and other records of the FCC's
Wireless Telecommunications Bureau (the "FCC Files") and have made telephone
inquiries to FCC staff in the FCC's Wireless Telecommunications Bureau with
respect to the opinions stated in paragraphs (iii), (iv), (v), and (vi) herein.
We have also examined the Credit Agreement and the form of Notes which may be
delivered pursuant to the Credit Agreement after the date hereof and have
examined such other documents and records and made such other investigations as
we have deemed relevant and necessary in connection with this opinion.
As to matters of fact, we have relied upon and assumed the
accuracy and completeness of the FCC Files, the documents filed by WirelessCo
with the FCC, and the Officers' Certificate(s). In rendering this opinion, we
have not independently investigated, established or verified the factual basis
of any opinion set forth herein, and, unless otherwise indicated herein, have
relied for such matters solely upon the FCC Files, the documents filed by
WirelessCo with the FCC and the Officers' Certificate(s).
We have assumed: (i) the authenticity of all documents
submitted to us as originals and the conformity with the original documents of
any copies thereof submitted to us as certified, conformed or photostatic copies
for our examination; (ii) that the signatures on all documents examined by us
are genuine; (iii) that where any such signature purports to have been made in a
corporate, governmental, fiduciary or other capacity, the person who affixed
such signature to such documents had authority to do so; and (iv) that all
public files, records and certificates of, or furnished by, governmental or
regulatory agencies or authorities are true, correct and complete.
As to all matters covered by the opinion letter delivered to
you on the date hereof by Charles R. Wunsch, Associate General Counsel of the
Borrower, we have relied upon such opinion letter and assumed the accuracy of
the legal opinions expressed therein.
Based upon our examination of the foregoing documents, records
and disclosures and subject to the qualifications, assumptions and limitations
set forth herein, we are of the opinion that:
(i) The execution and delivery of the Loan Documents and the
consummation by the Loan Parties of all of the transactions contemplated thereby
and the performance thereunder will not result in a violation of the
Communications Act or any order, rule or regulation of the FCC.
(ii) No consent, approval, authorization, order, registration,
filing or qualification of or with, or any other act by, any court or
governmental agency or body is required under the Communications Act or the
rules, regulations and published policies of the FCC for the valid execution,
delivery and consummation of and performance under the Loan Documents or the
consummation by the Loan Parties of the transactions contemplated thereby.
(iii) WirelessCo holds and has the right to use all of the
Licenses, without any conflict known to us with the rights of others, except as
such conflict, taken in the aggregate, would not have a Material Adverse Effect.
Such Licenses are in full force and effect and we are not aware of any other
licenses or other approvals or authorizations required by the Borrower or any
Restricted Subsidiary to conduct its business as now operated or as contemplated
to be operated by it.
(iv) To the best of our knowledge, there is no material
respect in which the operation of the Borrower and the Restricted Subsidiaries'
businesses is not in accordance with the Licenses, the Communications Act and
all orders, rules, regulations and published policies of the FCC.
(v) To the best of our knowledge, there are no material
proceedings threatened, pending or contemplated before the FCC against or
involving the properties, businesses or Licenses of the Borrower or any
Restricted Subsidiary.
(vi) To the best of our knowledge, no event has occurred as of
the date hereof that permits, or with notice or lapse of time or both would
permit, the suspension, revocation or termination of any of the Licenses or that
might result in any other material impairment of the rights of the Borrower or
the Restricted Subsidiaries therein.
Whenever our opinion herein with respect to the existence or
absence of facts is indicated to be based on the best of our knowledge or words
to such effect it is intended to signify that, in the course of our
representation of the Borrower in connection with Communications Act and FCC
regulatory matters, none of Cheryl A. Tritt, Joan E. Neal, Joyce H. Jones, Diane
S. Killory, Charles H. Kennedy, Susan H. Crandall, James A. Casey and Stephen J.
Kim (the only attorneys of this Firm with substantive involvement in
representing the Borrower in Communications Act and FCC regulatory matters)
acquired actual knowledge of the existence or absence of any such facts. Except
to the extent expressly stated herein, we have not undertaken any independent
investigation to determine the existence or absence of such facts, and no
inference as to our knowledge of the existence of such facts should be drawn
from the fact of our representation of the Borrower.
The opinion expressed herein is rendered as of the date of
this letter and is specific to the transactions and the documents referred to
herein. This opinion may not be relied upon for any other purpose or by any
other person or entity without our prior written consent. This opinion is
furnished solely for your benefit, and may not be relied upon by any other
person without our prior written consent.
Very truly yours,
Morrison & Foerster LLP
<PAGE>
SCHEDULE I
LENDERS
The Chase Manhattan Bank
Bankers Trust Company
Bayerische Hypotheken-und Wechsel-Bank Aktiengesellschaft, New York Branch
Banque Nationale de Paris
Credit Lyonnais New York Branch
NationsBank of Texas, N.A.
Societe Generale
The Bank of New York Company, Inc.
The Mitsubishi Trust and Banking Corporation
Westdeutsche Landesbank Girozentrale, New York Branch
Banque Paribas New York
Chiao Tung Bank Co., Ltd., New York Agency
Credit Local de France, New York Agency
Fleet National Bank
Korea First Bank, New York Agency
The Sumitomo Bank, Limited, Chicago Branch
The First National Bank of Boston
The Industrial Bank of Japan, Limited
The Long-Term Credit Bank of Japan, Ltd., Chicago Branch
The Sakura Bank, Limited
The Sanwa Bank, Limited
Banca Commerciale Italiana, Chicago Branch
Bank of Tokyo-Mitsubishi Trust Company
Export Development Corporation
The Fuji Bank, Limited
Skandinaviska Enskilda Banken Corporation
The Dai-ichi Kangyo Bank, Ltd., Chicago Branch
The Nippon Credit Bank, Ltd., Los Angeles Agency
The Royal Bank of Scotland plc
The Sumitomo Trust & Banking Co., Ltd., New York Branch
Crestar Bank
Van Kampen American Capital Prime Rate Income Trust
The Northwestern Mutual Life Insurance Company
KZH Holding Corporation
Morgan Guaranty Trust Company of New York, as Trustee of a Commingled Trust Fund
CHL High Yield Loan Portfolio, (a unit of The Chase Manhattan Bank)
Protective Life Insurance Company
Allstate Insurance Company
Orix USA Corporation
Crescent/Mach I Partners, L.P.
<PAGE>
SCHEDULE II
PCS LICENSES HELD BY WIRELESSCO, L.P.1/
Location Call Sign Market No.
New York KNLF204 M001 B
San Francisco-Oakland- KNLF208 M004 A
San Jose
Detroit KNLF211 M005 B
Dallas-Fort Worth KNKF215 M007 B
Boston-Providence KNLF217 M008 B
Minneapolis-St. Paul KNLF223 M012 A
Miami-Fort Lauderdale KNLF229 M015 A
New Orleans-Baton Rouge KNLF233 M017 A
St. Louis KNLF238 M019 B
Milwaukee KNLF239 M020 A
Pittsburgh KNLF241 M021 A
Denver KNLF243 M022 A
Seattle KNLF248 M024 B
Louisville-Lexington- KNLF252 M026 B
Evansville
Phoenix KNLF254 M027 B
Birmingham KNLF257 M029 A
Portland KNLF260 M030 B
Indianapolis KNLF261 M031 A
Des Moines-Quad Cities KNLF264 M032 B
San Antonio KNLF265 M033 A
Kansas City KNLF267 M034 A
Buffalo-Rochester KNLF269 M035 A
Salt Lake City KNLF272 M036 B
Little Rock KNLF280 M040 B
Oklahoma City KNLF282 M041 B
Spokane-Billings KNLF284 M042 B
Nashville KNLF285 M043 A
Wichita KNLF292 M046 B
Tulsa KNLF296 M048 B
1/ WirelessCo, L.P. PCS licenses were granted by the FCC June 23, 1995 and
will expire June 23, 2005.
<PAGE>
SCHEDULE I
LENDERS
[To be provided]
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of October
2, 1996 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Sprint Spectrum L.P., a Delaware limited partnership
(the "Borrower"), the Lenders named therein and The Chase Manhattan Bank, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"). Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
The Assignor identified on Schedule l hereto (the "Assignor")
and the Assignee identified on Schedule l hereto (the "Assignee") agree as
follows:
<PAGE>
1. The Assignor hereby irrevocably sells and assigns to the
Assignee without recourse to the Assignor, and the Assignee hereby irrevocably
purchases and assumes from the Assignor without recourse to the Assignor, as of
the Effective Date (as defined below), the interest described in Schedule 1
hereto (the "Assigned Interest").
2. The Assignor (a) makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or with
respect to the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan Document or any
other instrument or document furnished pursuant thereto, other than that the
Assignor has not created any adverse claim upon the interest being assigned by
it hereunder and that such interest is free and clear of any such adverse claim;
(b) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower, any of its Subsidiaries or
any other obligor or the performance or observance by the Borrower, any of its
Subsidiaries or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other instrument or
document furnished pursuant hereto or thereto; and (c) attaches any Notes held
by it evidencing the Assigned Interest and (i) requests that the Administrative
Agent, upon request by the Assignee, exchange the attached Notes for a new Note
or Notes payable to the Assignee and (ii) if the Assignor has retained any
Loans, requests that the Administrative Agent exchange the attached Notes for a
new Note or Notes payable to the Assignor, in each case in amounts which reflect
the assignment being made hereby (and after giving effect to any other
assignments which have become effective on the Effective Date).
3. The Assignee (a) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (b) confirms that it
has received a copy of the Credit Agreement, together with copies of the
financial statements delivered pursuant to subsection 3.1 of the Credit
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon the
Assignor, 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 the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto; (d) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are incidental thereto; and (e) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with its terms
all the obligations which by the terms of the Credit Agreement are required to
be performed by it as a Lender including, if it is organized under the laws of a
jurisdiction outside the United States, its obligation pursuant to subsection
2.15(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall
be the Effective Date of Assignment described in Schedule 1 hereto (the
"Effective Date"). Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance by it and recording
by the Administrative Agent pursuant to the Credit Agreement, effective as of
the Effective Date (which shall not, unless otherwise agreed to by the
Administrative Agent, be earlier than five Business Days after the date of such
acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the Assigned Interest (including payments of principal, interest, fees and other
amounts) to the Assignee whether such amounts have accrued prior to the
Effective Date or accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and shall be bound by the
provisions thereof and (b) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first above written by
their respective duly authorized officers on Schedule 1 hereto.
<PAGE>
Schedule 1
to Assignment and Acceptance
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
[Principal Amount of Revolving Credit Loans Assigned: $ ]
----------------------
Revolving Credit Commitment Percentage Assigned**: . %]
[Principal Amount of Trance [I][II] Term Loans Assigned: $ ]
[Term Loan [I] [II] Commitment Percentage Assigned*: . %]
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By: By:
Title: Title:
Accepted: Consented To:
THE CHASE MANHATTAN BANK, as SPRINT SPECTRUM L.P.
Administrative Agent
By: By:
Title: Title:
** Calculate Percentage that is assigned to at least 15 decimal places and
show as a percentage of the aggregate Revolving Credit or Term Loan
Commitments, as applicable, of all the Lenders.
<PAGE>
[CONFOMED COPY]
SPRINT SPECTRUM L.P.
$2,000,000,000
CREDIT AGREEMENT
Dated as of October 2, 1996
THE CHASE MANHATTAN BANK,
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...................................................... 1
1.1 Defined Terms.................................................. 1
1.2 Other Definitional Provisions.................................. 26
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS AND LOANS........................ 27
2.1 Commitments.................................................... 27
2.2 Borrowing Procedures........................................... 27
2.3 Commitment Fee; Other Fees..................................... 28
2.4 Repayment of Loans; Evidence of Debt........................... 29
2.5 Optional Prepayments........................................... 30
2.6 Optional Termination or Reduction of Commitments............... 30
2.7 Automatic Commitment Reductions; Repayment of Term Loans;
Mandatory Prepayments......................................... 31
2.8 Conversion and Continuation Options............................ 32
2.9 Interest Rates and Payment Dates............................... 33
2.10 Computation of Interest and Fees............................... 33
2.11 Inability to Determine Interest Rate........................... 34
2.12 Pro Rata Treatment and Payments................................ 35
2.13 Illegality..................................................... 35
2.14 Requirements of Law............................................ 36
2.15 Taxes.......................................................... 37
2.16 Indemnity...................................................... 40
2.17 Change of Lending Office; Mandatory Assignment or Prepayment... 41
2.18 Treatment of Certain Prepayments............................... 42
SECTION 3. REPRESENTATIONS AND WARRANTIES................................... 43
3.1 Financial Condition............................................ 43
3.2 No Change...................................................... 43
3.3 Existence; Compliance with Law................................. 43
3.4 Power; Authorization; Enforceable Obligations.................. 44
3.5 No Legal Bar................................................... 44
3.6 No Material Litigation......................................... 44
3.7 No Default..................................................... 44
3.8 Ownership of Property; Liens................................... 44
3.9 Intellectual Property.......................................... 45
3.10 Taxes.......................................................... 45
3.11 Federal Regulations............................................ 45
3.12 ERISA.......................................................... 45
3.13 Investment Company Act......................................... 46
3.14 Subsidiaries; Parents.......................................... 46
3.15 Absence of Material Obligations................................ 47
3.16 Environmental Matters.......................................... 47
3.17 Licenses....................................................... 48
3.18 Use of Proceeds................................................ 48
SECTION 4. CONDITIONS PRECEDENT............................................. 50
4.1 Conditions to Initial Loans.................................... 50
4.2 Conditions to Each Loan........................................ 53
SECTION 5. AFFIRMATIVE COVENANTS............................................ 53
5.1 Financial Statements........................................... 53
5.2 Certificates; Other Information................................ 54
5.3 Payment of Obligations......................................... 55
5.4 Conduct of Business; Maintenance of Existence;
Compliance with Laws.................................... 56
5.5 Maintenance of Property; Insurance............................. 56
5.6 Inspection of Property; Books and Records; Discussions......... 56
5.7 Notices........................................................ 56
5.8 Environmental Laws............................................. 57
5.9 After-Acquired Assets.......................................... 57
5.10 Interest Rate Protection....................................... 59
5.11 Fiscal Year.................................................... 59
5.12 Use of Proceeds................................................ 59
5.13 Insurance...................................................... 59
SECTION 6. NEGATIVE COVENANTS............................................... 60
6.1 Financial Condition Covenants.................................. 60
6.2 Limitation on Indebtedness..................................... 63
6.3 Limitation on Liens............................................ 64
6.4 Limitation on Guarantee Obligations............................ 67
6.5 Limitation on Fundamental Changes.............................. 67
6.6 Limitation on Sale of Assets................................... 68
6.7 Limitation on Restricted Payments.............................. 71
6.8 Limitation on Investments, Loans and Advances.................. 72
6.9 Limitation on Transactions with Affiliates..................... 73
6.10 Limitation on Lines of Business; Liabilities of Subsidiaries... 73
6.11 Limitation on Prepayments of Certain Indebtedness.............. 74
6.12 Limitation on Certain Amendments............................... 74
6.13 Limitation on Designation of Secured Obligations............... 74
6.14 Hedging Arrangements........................................... 75
SECTION 7. EVENTS OF DEFAULT................................................ 75
SECTION 8. THE ADMINISTRATIVE AGENT......................................... 79
8.1 Appointment.................................................... 79
8.2 Delegation of Duties........................................... 80
8.3 Exculpatory Provisions......................................... 80
8.4 Reliance by the Administrative Agent........................... 80
8.5 Notice of Default.............................................. 81
8.6 Non-Reliance on Administrative Agent and Other Lenders......... 81
8.7 Indemnification................................................ 81
8.8 Administrative Agent in Its Individual Capacity................ 82
8.9 Successor Administrative Agent................................. 82
SECTION 9. MISCELLANEOUS.................................................... 82
9.1 Amendments and Waivers......................................... 82
9.2 Notices........................................................ 83
9.3 No Waiver; Cumulative Remedies................................. 84
9.4 Survival of Representations and Warranties..................... 84
9.5 Payment of Expenses and Taxes.................................. 85
9.6 Successors and Assigns; Participations and Assignments......... 85
9.7 Adjustments; Set-off........................................... 88
9.8 Counterparts................................................... 89
9.9 Severability................................................... 89
9.10 Integration.................................................... 89
9.11 GOVERNING LAW.................................................. 89
9.12 Submission To Jurisdiction; Waivers............................ 89
9.13 Confidentiality................................................ 90
9.14 No-Recourse.................................................... 90
9.15 Release of Guarantees and Collateral........................... 90
9.16 WAIVER OF JURY TRIAL........................................... 91
<PAGE>
SCHEDULES:
Schedule I Commitments; Addresses of Lenders
Schedule II The Borrower's MTA's
Schedule III Existing Indebtedness
Schedule IV Existing Liens
Schedule V Existing Guarantee Obligations
EXHIBITS:
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Term Note
Exhibit B-1 Form of Legal Opinion of Simpson Thacher & Bartlett
Exhibit B-2 Form of Legal Opinion of Charles R. Wunsch, Esq.
Exhibit B-3 Form of Legal Opinion of Morrison & Foerster LLP
Exhibit C Form of Assignment and Acceptance
