<PAGE>
Exhibit 10.4
SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement") dated as of February 3, 1998, as amended and
restated as of September 22, 1999 and September 14, 2000 among
TRITON PCS, INC., a Delaware corporation (the "Borrower"), TRITON
PCS HOLDINGS, INC. ("Holdings"), the LENDERS (as defined in
Article I) party hereto, and THE CHASE MANHATTAN BANK, as
Administrative Agent.
WHEREAS the Borrower intends to construct and operate the Network (as
defined in Article I);
WHEREAS the Borrower has requested the Lenders (i) to make available
credit facilities to finance capital expenditures related to the construction of
the Network, the acquisition of Related Businesses, working capital needs of the
Borrower and subscriber acquisition costs and (ii) to amend and restate the
Original Credit Agreement (as defined in Article I) as provided herein; and
WHEREAS the Lenders are willing to make the requested credit
facilities available and amend and restate the Original Credit Agreement on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth below, the parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
--------------
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
---
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Additional Lender" shall have the meaning assigned thereto in Section
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2.19.
"Additional Capital Contributions" means (i) the issuance by Holdings
--------------------------------
of $50,000,000 of Common Stock or Series C or D Preferred Stock to Holdings'
existing investors or other investors reasonably acceptable to the
Administrative Agent and (ii) the issuance by Holdings of $25,000,000 of Common
Stock, Series E Preferred Stock or Deeply Subordinated Debt to a Qualified
Vendor or other investors reasonably acceptable to the Administrative Agent, in
each case for cash pursuant to the Additional Capital Contribution Commitments.
<PAGE>
"Additional Capital Contribution Commitments" means unconditional,
-------------------------------------------
irrevocable commitments from Holdings' existing investors, a Qualified Vendor or
other investors reasonably acceptable to the Administrative Agent to purchase
additional shares of Common Stock or Series C, D or E Preferred Stock or Deeply
Subordinated Debt for cash in an aggregate amount of $75,000,000, the proceeds
of which will, on receipt by Holdings, be immediately contributed to the
Borrower; provided, however, that the Additional Capital Contribution
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Commitments may be terminable upon receipt by the Borrower of $75,000,000 of Net
Proceeds from an initial public offering of equity securities of Holdings.
"Adjusted EBITDA" means for any fiscal period, the sum of (a)
---------------
Consolidated EBITDA for such period plus (b) the aggregate amount deducted in
----
determining Consolidated Net Income for such period in respect of sales,
marketing and advertising expenses and consumer-related equipment subsidy
expenses.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
------------------
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
--------------------
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
----------------------------
in the form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified and with
respect to any Lender that is a fund that invests in commercial loans, any other
fund that invests in commercial loans and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Aggregate Service Revenue" means for any period, total revenues less
-------------------------
revenues from equipment sales of the Borrower and the Subsidiaries.
"Alternate Base Rate" means, for any day, a rate per annum equal to
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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
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Annualized Adjusted EBITDA" means for the period ending on the last
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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.
<PAGE>
"Annualized EBITDA" means for the period ending on the last day of any
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fiscal quarter, the product of (a) Consolidated EBITDA for the two consecutive
fiscal quarters ending on such last day, multiplied by (b) two.
"Applicable Margin" means, for any day (a) prior to the Second
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Amendment and Restatement Execution Date, the "Applicable Margin" as defined in
the First Amended and Restated Credit Agreement and (b) on and after the Second
Amendment and Restatement Execution Date, (i) with respect to any Tranche B Term
Loan, the applicable Tranche B Rate, or (ii) with respect to a Revolving Loan, a
Tranche A Term Loan, a Tranche C Term Loan or a Tranche D Term Loan, 1.50% per
annum, in the case of an ABR Loan, or 2.50% per annum, in the case of a
Eurodollar Loan; provided, that after the date that is twelve months subsequent
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to the Second Amendment and Restatement Execution Date, the applicable rate per
annum for a Revolving Loan, a Tranche A Term Loan, a Tranche C Term Loan or a
Tranche D Term Loan shall be based upon the Leverage Ratio as of the most recent
determination date as set forth below under the caption "ABR Spread" or
"Eurodollar Spread", as the case may be; provided further, that unless
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Consolidated EBITDA for the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 5.01 is positive, the
"Applicable Margin" for purposes of clause (b)(ii) shall be the applicable rate
per annum set forth below in Category 1:
<TABLE>
<CAPTION>
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ABR Eurodollar
--- ----------
Leverage Ratio: Spread Spread
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<S> <C> <C>
Category 1
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Not Applicable 1.250% 2.250%
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Category 2
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Greater than or equal to 10.0 to 1.00 1.000% 2.000%
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Category 3
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Greater than or equal to 9.0 to 1.00 but less
than 10.0 to 1.00 0.875% 1.875%
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Category 4
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Greater than or equal to 8.0 to 1.00 but less
than 9.0 to 1.00 0.750% 1.750%
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Category 5
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Greater than or equal to 6.0 to 1.00 but less
than 8.0 to 1.00 0.500% 1.500%
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Category 6
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Greater than or equal to 5.0 to 1.00 but less
than 6.0 to 1.00 0.250% 1.250%
--------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------
ABR Eurodollar
--- ----------
Leverage Ratio: Spread Spread
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<S> <C> <C>
Category 7
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Less than 5.0 to 1.00 ---- 1.000%
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</TABLE>
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Margin
resulting from a change in the Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Leverage Ratio shall be deemed to be in Category 1 (A)
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at any time that an Event of Default has occurred and is continuing or (B) if
the Borrower fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
"Applicable Percentage" means, with respect to any Revolving Lender,
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the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means with respect to the commitment fees payable
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hereunder, (a) for any day prior to the Second Amendment and Restatement
Execution Date, the "Applicable Rate" as defined in the First Amended and
Restated Credit Agreement and (b) for any day on or after the Second Amendment
and Restatement Execution Date, the applicable rate per annum set forth below
based upon the percentage of the total Revolving Commitments, Tranche A
Commitments, Tranche C Commitments and Tranche D Commitments which are used on
such date:
<TABLE>
<S> <C>
---------------------------------------------------------------------------------------------
Drawn Commitments as a Percentage of the Total Revolving
--------------------------------------------------------
Commitments, Tranche A Commitments, Tranche C
---------------------------------------------
Commitments and Tranche D Commitments Commitment Fee
------------------------------------- --------------
---------------------------------------------------------------------------------------------
Greater than or equal to 50% 0.50%
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Less than 50% 0.75%
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</TABLE>
; provided, that from and after September 22, 2000, the Applicable Rate shall be
-------- ----
based upon the Leverage Ratio as of the most recent determination date; provided
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further, that unless Consolidated EBITDA for the most recent fiscal quarter for
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which financial statements have been delivered pursuant to Section
<PAGE>
5.01 is positive, the Applicable Rate shall be the applicable rate per annum set
forth below in Category 1:
<TABLE>
<CAPTION>
---------------------------------------------------------------------------
Commitment
----------
Leverage Ratio: Fee Rate
---------------------------------------------------------------------------
<S> <C>
Category 1
----------
Not Applicable 0.50%
---------------------------------------------------------------------------
Category 2
----------
Greater than or equal to 10.0 to 1 0.50%
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Category 3
----------
Less than 10.0 to 1 0.375%
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</TABLE>
For purposes of the foregoing, (i) the Leverage Ratio shall be
determined as of the end of each fiscal quarter of the Borrower's fiscal year
based upon the Borrower's consolidated financial statements delivered pursuant
to Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Leverage Ratio shall be effective during the period
commencing on and including the date of delivery to the Administrative Agent of
such consolidated financial statements indicating such change and ending on the
date immediately preceding the effective date of the next such change; provided
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that the Leverage Ratio shall be deemed to be in Category 1 (A) at any time that
an Event of Default has occurred and is continuing or (B) if the Borrower fails
to deliver the consolidated financial statements required to be delivered by it
pursuant to Section 5.01(a) or (b), during the period from the expiration of the
time for delivery thereof until such consolidated financial statements are
delivered.
"Assignment and Acceptance" means an assignment and acceptance entered
-------------------------
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"AW" means AT&T Wireless PCS, Inc.
--
"AW License Exchange and Acquisition Agreement" means the License
---------------------------------------------
Exchange and Acquisition Agreement executed by AW, Holdings and Triton PCS
License Company, L.L.C. dated as of July 13, 1999.
"AW Licenses" has the meaning set forth in the definition of
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Initial Equity Contributions.
"AW Pops Swap" means the acquisition by one or more of the Borrower
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and the Subsidiaries of 20 MHz of the 30 MHz of PCS licenses owned by AW
covering the Savannah, Georgia, BTA and the Athens, Georgia BTA (collectively,
the "AW Swap Licenses"), in exchange for the 20 MHz of PCS licenses owned by the
Borrower and its Subsidiaries covering the Cumberland, Maryland BTA and the
Hagerstown, Maryland BTA (collectively, the "Exchanged Licenses") and the
issuance to AW of approximately 53,881.64
<PAGE>
shares of Series A Preferred Stock and approximately 42,738.98 shares of Series
D Preferred Stock in connection therewith in accordance with the terms of the AW
License Exchange and Acquisition Agreement and in connection therewith the
issuance of approximately 4,748.78 shares of common stock of Holdings to the
current holders of common stock.
"Bidding Entity" means (i) Lafayette Communications Company, L.L.C., a
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Delaware limited liability company and/or (ii) any other Person designated as a
Bidding Entity by notice to the Administrative Agent in which the Borrower or
any of its Subsidiaries makes an Investment pursuant to Section 6.05(i);
provided, however, that (A) all of the Capital Stock and debt securities of any
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Bidding Entity shall be pledged pursuant to a Bidding Entity Pledge Agreement,
(B) the Bidding Entity shall execute a Bidding Entity Guarantee Agreement and
(C) the Bidding Entity shall execute a Bidding Entity Security Agreement and
such other security agreements or other instruments or documents reasonably
requested by the Administrative Agent.
"Bidding Entity Note" means a promissory note of a Bidding Entity
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payable to the Borrower or a Wholly Owned Subsidiary in an amount equal to the
funds loaned to such Bidding Entity by the Borrower and any Subsidiary and
otherwise in form and substance reasonably satisfactory to the Administrative
Agent.
"Bidding Entity Guarantee Agreement" means one or more Bidding Entity
----------------------------------
Guarantee Agreements, substantially in the form of Exhibit C-2, made by a
Bidding Entity in favor of the Administrative Agent for the benefit of the
Secured Parties.
"Bidding Entity Pledge Agreement" means one or more Bidding Entity
-------------------------------
Pledge Agreements, substantially in the form of Exhibit D-2-I or Exhibit D-2-II,
among a Bidding Entity and/or holders of Capital Stock of such Bidding Entity
and the Administrative Agent for the benefit of the Secured Parties.
"Bidding Entity-Related Default" means the occurrence of any of the
------------------------------
following: (i) an event of default (as defined therein) under a Bidding Entity
Note which results in a Material Adverse Effect or (ii) the making of any
Restricted Payment by any Bidding Entity other than a Restricted Payment made
(x) to the Borrower or a Wholly Owned Subsidiary or (y) in shares of Capital
Stock of Holdings.
"Bidding Entity Security Agreement" means one or more Bidding Entity
---------------------------------
Security Agreement between a Bidding Entity and the Administrative Agent,
substantially in the form of Exhibit E-2.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means Triton PCS, Inc., a Delaware corporation.
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"Borrowing" means (a) Loans of the same Class and Type, made,
---------
converted or continued on the same date and, in the
<PAGE>
case of Eurodollar Loans as to which a single Interest Period is in effect or
(b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Borrowing in
-----------------
accordance with Section 2.03.
"BTA" means a Basic Trading Area, as defined in 47 C.F.R. (S)24.202.
---
"Business Day" means any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
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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 Expenditures" means, for any period, without duplication, (a)
--------------------
the capital expenditures of the Borrower and its consolidated Subsidiaries that
are (or would be) set forth in a consolidated statement of cash flows of the
Borrower for such period prepared in accordance with GAAP, plus (b) the capital
expenditures of the Borrower and its consolidated Subsidiaries made but not yet
paid for included in accounts payable at the end of such period, minus (c) any
capital expenditures shown on such statement of cash flows of the Borrower for
such period to the extent included in accounts payable at the end of any prior
period, plus (d) Capital Lease Obligations incurred by the Borrower and its
consolidated Subsidiaries during such period (other than Capital Lease
Obligations permitted by Section 6.01(a)(viii)), minus (e) any capital
expenditures made with casualty or other insurance proceeds to repair, restore
or replace lost or damaged property or assets within 270 days of such loss or
damage, minus (f) any capital expenditures that represent the purchase price of
the acquisition of a business or business unit permitted by Section 6.05.
"Capital Lease Obligations" of any Person means the obligations of
-------------------------
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations or
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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 Interest Expense" means, for any period, (a) Consolidated
---------------------
Interest Expense for such period, minus (b) the aggregate amount of pay-in-kind,
accreted or other Consolidated Interest Expense for such period not involving
any payment in cash.
<PAGE>
"Change in Control" means (a) the sale or other disposition by AW of
-----------------
any shares of the Series C Preferred Stock, Series D Preferred Stock or Common
Stock of Holdings or of any Common Stock of the Borrower prior to February 4,
2001 (provided that the conversion of any such shares, in accordance with their
terms, into other shares of Capital Stock of Holdings shall not constitute a
disposition of such shares so long as AW retains the shares into which such
shares are converted); (b) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) other than Holdings or
Persons (or Affiliates thereof) owning capital stock of Holdings on the
Effective Date, of shares representing more than 30% of the aggregate ordinary
voting power represented by the issued and outstanding capital stock of either
the Borrower or Holdings; (c) occupation of a majority of the seats (other than
vacant seats) on the board of directors of Holdings or the Borrower by Persons
who were not (i) nominated by the board of directors of Holdings (in the case of
Holdings' board) or the Borrower (in the case of the Borrowers' board) (ii)
appointed by directors so nominated or (iii) in the case of Holdings, appointed
by shareholders of Holdings who are shareholders of Holdings on the Effective
Date; or (d) the acquisition of direct or indirect Control of the Borrower or
Holdings by any Person or group other than Holdings or Persons (or Affiliates
thereof) owning capital stock of Holdings on the date hereof; provided, however,
-------- -------
that neither (A) the sale by AW of all or any of its equity interest in Holdings
subsequent to February 4, 2001, nor (B) the sale by Holdings or the Borrower of
newly issued Common Stock in a public offering, shall constitute a Change of
Control so long as no event described in clause (b) above occurs as a result
thereof.
"Change in Law" means (a) the adoption of any law, rule or regulation
-------------
after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority
after the date of this Agreement or (c) compliance by any Lender or Issuing Bank
(or, for purposes of Section 2.13(b), by any lending office of such Lender or by
such Lender's or Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
-----
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term
Loans, Incremental Term Loans, if any, or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving
Commitment, Tranche A Commitment, Tranche B Commitment, Tranche C Commitment,
Tranche D Commitment or Incremental Commitment, if any.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time.
<PAGE>
"Collateral" means any and all "Collateral", as defined in any
----------
applicable Security Document and shall also include the Mortgaged Properties.
"Committed Equity" means irrevocable binding commitments (i) to
----------------
purchase stock of Holdings pursuant to the Securities Purchase Agreement or (ii)
to make the Additional Capital Contributions; provided that, the Additional
--------
Capital Contributions shall be considered Committed Equity only to the extent
that final, definitive documentation with respect thereto has been executed on
terms satisfactory to the Administrative Agent.
"Commitment" means a Revolving Commitment, Tranche A Commitment,
----------
Tranche B Commitment, Tranche C Commitment, Tranche D Commitment or Incremental
Commitment, if any, or any combination thereof (as the context requires).
"Common Stock" means the Common Stock, par value $.01 per share, of
------------
Holdings.
"Communications Act" means the Communications Act of 1934, and any
------------------
similar or successor federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same may be
in effect from time to time.
"Consents to Assignment" has the meaning set forth in subsection
----------------------
4.01(r).
"Consolidated EBITDA" means, for any period, Consolidated Net Income
-------------------
plus, to the extent deducted in computing such Consolidated Net Income, the sum
of (a) income or franchise tax expense for such period, (b) Consolidated
Interest Expense, (c) depreciation and amortization expense and (d) any non-cash
charges or non-cash losses, minus, to the extent added in computing such
Consolidated Net Income, (i) any non-cash gains or other non-cash items and (ii)
any income tax credits, all as determined on a consolidated basis with respect
to the Borrower and the Subsidiaries in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the interest
-----------------------------
expense of Holdings, the Borrower and the Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including but not
limited to the portion of any payments or accruals with respect to Capital Lease
Obligations that are allocable to interest expense.
"Consolidated Net Income" means, for any period, net income or loss of
-----------------------
the Borrower and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
--------
income of any Person in which any other Person (other than the Borrower or any
of the Subsidiaries or any director holding qualifying shares in compliance with
applicable law) has a joint interest, except to the extent of the amount of
dividends or other distributions (i) that the Borrower or any of the
Subsidiaries has the power to cause such Person to make to the Borrower or any
Subsidiary during such period and such dividend or other distribution is not
prohibited by the terms of any agreement
<PAGE>
binding upon such Person or otherwise or (ii) that, to the extent not already
included in Consolidated Net Income for any period pursuant to clause (i) above,
were actually paid to the Borrower or any of the Subsidiaries by such Person
during such period, (b) any after tax gains or losses attributable to sales of
assets out of the ordinary course of business and (c) (to the extent not
included in clauses (a) or (b) above) any extraordinary gains or extraordinary
losses.
"Contractual Obligations" means 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 Equity" means at any time or for any period, the
------------------
aggregate amount which shall have been received by the Borrower and/or Holdings
prior to such time or during such period as consideration for the issuance of
Capital Stock of Holdings (valued (i) in the case of cash, at the dollar amount
thereof, (ii) in the case of the AW Licenses, at $109,850,200, the agreed value
of the AW Licenses in the Securities Purchase Agreement, (iii) in the case of
the AW Swap Licenses, at approximately $9,662,062, the agreed amount by which
the value of the AW Swap Licenses exceeds the value of the Exchanged Licenses
and (iv) in the case of any other non-cash consideration, at the fair value
thereof as reasonably determined by the Administrative Agent) less (x) any
amounts contributed to any Unrestricted Subsidiary by Holdings and (y) any
amounts paid by Holdings in connection with the Equity Swap.
"Control" means the possession, directly or indirectly, of the power
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to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
----------- ----------
"Covered Pops" means the aggregate number of Pops within each
------------
geographic area for which facilities owned by the Borrower or its Subsidiaries
that provide service to such geographic area have achieved substantial
completion.
"Debt Service" means for any period, the sum of (a) Cash Interest
------------
Expense for such period plus (b) scheduled principal amortization of Total Debt
----
for such period.
"Deeply Subordinated Debt" means subordinated Indebtedness of Holdings
------------------------
which (i) is not mandatorily redeemable or required to be repurchased or
reacquired by Holdings, the Borrower or any Subsidiary prior to the date that is
six months after the Tranche B Maturity Date; provided that upon a public
--------
offering of Capital Stock of Holdings or other Deeply Subordinated Debt in an
aggregate amount of at least $75,000,000, the Net Proceeds received therefrom
may be used to redeem, repurchase or reacquire such Deeply Subordinated Debt,
(ii) does not require a cash interest payment prior to the date that is six
months after the Tranche B Maturity Date, (iii) is not secured by any assets of
Holdings, the Borrower or any Subsidiary, (iv) is not Guaranteed by the Borrower
or any Subsidiary and (v) is otherwise on terms satisfactory to the
<PAGE>
Administrative Agent. The Deeply Subordinated Debt shall not be deemed to be
Indebtedness of Holdings for purposes of this Agreement or any Loan Document.
"Default" means any event or condition which constitutes an Event of
-------
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
-----------------
environmental matters disclosed in Schedule 3.06.
"Disqualifying Transaction" has the meaning set forth in the
-------------------------
Stockholders Agreement.
"dollars" or "$" refers to lawful money of the United States of
------- -
America.
"Effective Date" means February 4, 1998.
--------------
"11% Notes" means the 11% Senior Subordinated Discount Notes due 2008
---------
issued by Holdings on May 4, 1998 with an aggregate principal amount at maturity
of $511,989,000 and the subordinated Guarantees thereof as in effect on the date
of issuance thereof.
"Environmental Laws" means all laws, rules, regulations, codes,
------------------
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
-----------------------
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equipment Subsidiary" means Triton PCS Equipment Company LLC and/or
--------------------
any Wholly Owned Subsidiary of the Borrower designated by the Borrower as the
Equipment Subsidiary by notice to the Administrative Agent; provided, however,
-------- -------
that (i) such Subsidiary has no obligations or liabilities other than as
permitted by Section 3.13, (ii) the stock of such Subsidiary is pledged to the
Collateral Agent for the benefit of the Lenders in accordance with the terms of
the Pledge Agreement and (iii) the Borrower and such Subsidiary have entered
into a Special Purpose Subsidiary Funding Agreement.
<PAGE>
"Equity Proceeds" means the cash Net Proceeds received by Holdings
---------------
from the issuance and sale of common stock of Holdings.
"Equity Swap" means the sale by Holdings of approximately 35,601.68
-----------
shares of Series C Preferred Stock to certain of its existing equity investors
for approximately $3,560,117 and the simultaneous redemption by Holdings of
approximately 35,601.68 shares of Series C Preferred Stock held by its existing
equity investor, J.P. Morgan and one or more of its Affiliates, for
approximately $3,560,117.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
---------------
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
-----------
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
----------
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in
----------------
Article VII.
"Excess Cash Flow" means, for any period, the sum of (without
----------------
duplication):
<PAGE>
(a) Consolidated Net Income for such period, adjusted to exclude
any gains or losses attributable to Prepayment Events; plus
----
(b) depreciation, amortization and other non-cash charges or
losses deducted in determining such consolidated net income (or loss) for
such period; plus
----
(c) the sum of (i) the amount, if any, by which Net Working
Capital decreased during such period plus (ii) the amount, if any, by which
the consolidated deferred revenues of the Borrower and its consolidated
Subsidiaries increased during such period plus (iii) the aggregate
principal amount of Capital Lease Obligations and other Indebtedness
incurred during such period to finance Capital Expenditures, to the extent
that mandatory principal payments in respect of such Indebtedness would not
be excluded from clause (f) below when made; minus
-----
(d) the sum of (i) any non-cash gains included in determining
such Consolidated Net Income (or loss) for such period plus (ii) the
amount, if any, by which Net Working Capital increased during such period
plus (iii) the amount, if any, by which the consolidated deferred revenues
of the Borrower and its consolidated Subsidiaries decreased during such
period; minus
-----
(e) cash Capital Expenditures for such period; minus
-----
(f) the aggregate principal amount of Indebtedness repaid or
prepaid by the Borrower and its consolidated Subsidiaries during such
period, excluding (i) Indebtedness in respect of Revolving Loans and
Letters of Credit, (ii) Term Loans prepaid pursuant to Section 2.09(b) or
(c), (iii) repayments or prepayments of Indebtedness financed by incurring
other Indebtedness, to the extent that mandatory principal payments in
respect of such other Indebtedness would not be excluded from this clause
(f) when made and (iv) Indebtedness referred to in clauses (ii), (ix), (x),
(xi) and (xiii) of Section 6.01(a); minus
-----
(g) Restricted Payments made pursuant to Section 6.08(a)(iv); plus
----
(h) any cash dividends or any other cash distributions paid or
made by, and received by the Borrower or any Subsidiary from, any
Unrestricted Subsidiary.
"Excluded Assets" means at any time, the collective reference to all
---------------
assets of the Borrower or any Subsidiary then subject to a Lien permitted by
sub-Section 6.02(iii)-(vi).
"Excluded Real Property Assets" means Real Property Assets which
-----------------------------
constitute Excluded Assets.
"Excluded Real Property-Related Equipment" means Real Property-Related
----------------------------------------
Equipment which constitutes Excluded Assets.
"Excluded Taxes" means, with respect to the Issuing Bank, the
--------------
Administrative Agent, or any Lender (a) income or
<PAGE>
franchise Taxes imposed on (or measured by) its net income or profits by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located or any
Governmental Authority of or in any of the foregoing (including, without
limitation, minimum Taxes and Taxes computed under alternative methods, the
principal one of which is based on or measured by net income or profits), (b)
any branch profits Taxes imposed by the United States of America or any similar
Tax imposed by any other jurisdiction in which the Borrower is located or the
Issuing Bank, the Administrative Agent or Lender as applicable, or organized or
any Governmental Authority of or in any of the foregoing, (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 2.17(b)), any withholding Tax that is in effect and would apply to
a payment to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at the time of
designation of a new lending office (or assignment), to receive additional
amounts from the Borrower with respect to such withholding Tax pursuant to
Section 2.15(a), (d) any Taxes to the extent imposed by reason of the Issuing
Bank, Lender or Administrative Agent, as applicable, engaging in activities in
the jurisdiction imposing the Tax that are unrelated to the transactions
contemplated hereby, and (e) any Tax that would not have been imposed but for
the failure of a Lender or the Administrative Agent, as applicable, to comply
with the certification requirements described in Section 2.15(e).
"FCC" means the Federal Communications Commission, or any other
---
similar or successor agency of the Federal government administering the
Communications Act.
"Federal Funds Effective Rate" means, for any day, the weighted
----------------------------
average (rounded upwards, if necessary, to the next 1/100 of 1%) 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 that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
-----------------
accounting officer, treasurer or controller of the Borrower.
"First Amended and Restated Credit Agreement" means the Credit
-------------------------------------------
Agreement dated as of February 3, 1998, as amended and restated as of September
22, 1999 among the Borrower, Holdings, the lenders party thereto and in effect
immediately prior to the Second Amendment and Restatement Execution Date.
"First Amendment and Restatement Effective Date" means September 22,
----------------------------------------------
1999, the effective date of the amendment to the
<PAGE>
Original Credit Agreement that amended and restated such agreement.
"Fixed Charges" means (a) Debt Service, (b) Capital Expenditures, (c)
-------------
Taxes and (d) dividends and distributions paid pursuant to Section 6.08(a)(iii).
"Foreign Lender" means any Lender that is organized under the laws of
--------------
a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
------------------
laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
----
United States of America.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
--------- ---------
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
---------------
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
--------
endorsements for collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement with respect to
-------------------
the Obligations substantially in the form of Exhibit C-1, made by the Subsidiary
Loan Parties in favor of the Administrative Agent for the benefit of the Secured
Parties.
"Hazardous Materials" means all explosive or radioactive substances
-------------------
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
<PAGE>
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
-----------------
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Holdings" means Triton PCS Holdings, Inc., a Delaware corporation.
--------
"Incremental Commitment" shall have the meaning assigned thereto
----------------------
in Section 2.19.
"Incremental Facility Amendment" means an amendment to this Agreement
------------------------------
which contains the procedures for borrowing Incremental Term Loans, the
administrative information of the Lenders of such Incremental Term Loans and
other matters which have no adverse impact on any Lender, which amendment shall
be in form and substance satisfactory to the Administrative Agent and the
Borrower.
"Incremental Term Loan Lender" means a Person with an outstanding
----------------------------
Incremental Term Loan.
"Incremental Term Loans" shall have the meaning assigned thereto
----------------------
in Section 2.19.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnity, Subrogation and Contribution Agreement" means the
-------------------------------------------------
Indemnity, Subrogation and Contribution Agreement,
<PAGE>
substantially in the form of Exhibit F, among the Borrower and the Subsidiaries.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Information Memorandum" means the Confidential Information Memorandum
----------------------
dated August 2000 relating to the Borrower and the Transactions.
"Initial Equity Contributions" means (i) AW's contribution to the
----------------------------
Borrower of 20 MHz of A or B Block PCS licenses covering the markets and Pops
set forth in Schedule 3.14 hereto (the "AW Licenses") in exchange for 732,371
shares of Series A Preferred Stock and 366,131 shares of Series D Preferred
Stock and (ii) purchases of 1,400,000 shares of Series C Preferred Stock of
Holdings by other investors for cash consideration and irrevocable commitments
of not less than $140,000,000, the purchase price for which will be paid
directly to the Borrower.
"Interest Election Request" means a request by the Borrower to convert
-------------------------
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
---------------------
than a Swingline Loan), the last day of each March, June, September and
December, (b) with respect to any Eurodollar Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case
of a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs at
intervals of three months' duration after the first day of such Interest Period
and (c) with respect to any Swingline Loan, the day that such Loan is required
to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing, the
---------------
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or, with the consent of each Lender, nine or twelve months) thereafter, as the
Borrower may elect; provided, that (i) if any Interest Period would end on a day
--------
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day and (ii) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall
be the date on which such Borrowing is made and thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.18(i). The
<PAGE>
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of the Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
----
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Revolving Lender at any
time shall be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance. In the event that any Incremental Term Loans
shall have been extended to the Borrower pursuant to Section 2.19 of this
Agreement, "Lenders" shall include the Incremental Term Loan Lenders. Unless the
context otherwise requires, the term "Lenders" includes the Swingline Lender.
For purposes of the definitions of "Obligations" and "Secured Parties" under the
Security Agreement, the term "Lender" shall also include an Affiliate of a
Lender that is a counterparty to a Hedging Agreement with a Loan Party.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"Leverage Ratio" means for any fiscal period, the ratio of (a) Total
--------------
Debt on the last day of such fiscal period to (b) Annualized EBITDA for the
period ending on the last day of such fiscal period.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of Telerate (or on any
successor or substitute page of such service, or any successor to or substitute
for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period, as the rate for dollar deposits with a maturity comparable to
such Interest Period. In the event that such rate is not available at such time
for any reason, then the "LIBO Rate" with respect to such Eurodollar Borrowing
---------
for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by
the principal London office of the Administrative Agent in immediately available
funds in the London interbank market at approximately 11:00 a.m., London time,
two Business Days prior to the commencement of such Interest Period.
<PAGE>
"License" means any license issued by the FCC in connection with the
-------
operation of a System.
"License Related Assets" means assets directly associated with any
----------------------
License and which constitute part of the System which serves or is to be
constructed to serve the geographic area covered by such License.
"License Subsidiary" means Triton PCS License Company, L.L.C. and/or
------------------
any other Wholly Owned Subsidiary of the Borrower designated as a License
Subsidiary by notice to the Administrative Agent; provided, however, that (i)
-------- -------
such Subsidiary has no obligations or liabilities other than as permitted by
Section 3.13, (ii) the stock of such Subsidiary is pledged to the Collateral
Agent for the benefit of the Lenders in accordance with the terms of the Pledge
Agreement and (iii) the Borrower and such Subsidiary have entered into a Special
Purpose Subsidiary Funding Agreement.
"License Swap" means (i) any exchange, with AW or any partner or
------------
affiliate of AW in AW's mobile telecommunications network (other than an
Unrestricted Subsidiary), of a License or Licenses and License Related Assets
owned by the Borrower and/or any of its Subsidiaries, for a License or Licenses
and License Related Assets owned by AW or such partner or affiliate or (ii) any
sale (other than to an Unrestricted Subsidiary) of a License or Licenses and
License Related Assets owned by the Borrower and/or any of its Subsidiaries and
the use of the Net Proceeds received therefrom to purchase a License or Licenses
and License Related Assets owned by AW or any partner or affiliate of AW in AW's
mobile telecommunications network (other than an Unrestricted Subsidiary);
provided, that, (i) such purchase occurs not more than 270 days following such
-------- ----
sale and the Borrower notifies the Administrative Agent (prior to or
simultaneously with such sale) that such sale is part of a License Swap and
repays outstanding Revolving Loans, if any, with the Net Proceeds received from
such sale pending the related purchase, (ii) to the extent the Net Proceeds
received from such sale are not used to make a purchase described above, such
sale shall constitute a Prepayment Event (notwithstanding anything to the
contrary contained in this Agreement) rather than a License Swap and such
Prepayment Event shall be deemed to have occurred on the 270th day and the Net
Proceeds therefrom shall be applied in accordance with Section 2.09(b) and (iii)
any License Swap involving an Affiliate of the Borrower must be approved by the
Administrative Agent.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
----
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, the Guarantee Agreement, the
--------------
Pledge Agreement, the Security Agreement, the Indemnity, Subrogation and
Contribution Agreement, the Special
<PAGE>
Purpose Subsidiary Funding Agreements, the Consents to Assignment and the other
Security Documents.
"Loan Parties" means Holdings, the Borrower and the Subsidiary Loan
------------
Parties.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Marketing Affiliate" means Affiliate License Co., L.L.C., a Delaware
-------------------
limited liability company owned 1/3 by the Borrower, 1/3 by Telecorp PCS, Inc.
and 1/3 by TriTel PCS, Inc., which engages in no significant activity other than
the registering, holding, maintenance and protection of trademarks and the
licensing thereof to its members.
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, assets, results of operations, prospects or financial condition of
Holdings, the Borrower and the Subsidiaries taken as a whole, (b) the ability of
any Loan Party to perform any of its obligations under any Loan Document or (c)
the validity or enforceability of any Loan Document or the rights of or remedies
available to the Administrative Agent or the Lenders under any Loan Document;
provided that, on or after February 4, 2003, neither (x) the nonrenewal of the
--------
Network License Agreement by AW nor (y) the termination of the Network License
Agreement by AW in accordance with its terms as a result of a Disqualifying
Transaction shall be a Material Adverse Effect.
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Holdings, the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $10,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of Holdings,
the Borrower or any Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Moody's" means Moody's Investors Service, Inc.
-------
"Mortgage" means a mortgage, deed of trust, assignment of leases and
--------
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
reasonably satisfactory in form and substance to the Administrative Agent.
"Mortgaged Property" means, initially, each interest in real property
------------------
and any improvements thereto owned by a Loan Party and identified on Schedule
3.22, and includes each interest in real property and any improvements thereto
with respect to which a Mortgage is granted pursuant to Section 5.12 or 5.13.
"MSA" means a Metropolitan Statistical Area, as defined in 47 C.F.R.
---
(S) 24.202.
<PAGE>
"MTA" means a Major Trading Area, as defined in 47 C.F.R. (S) 24.202.
---
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Myrtle Acquisition" means the acquisition by one or more of Triton
------------------
PCS License Company L.L.C., Triton Myrtle Acquisition, L.L.C. or any other
Subsidiary (the "Myrtle Entities") of substantially all the assets of Vanguard
---------------
Cellular Systems of South Carolina, Inc. ("Vanguard"), including the FCC
--------
cellular licence for the South Carolina 5--Georgetown RSA, Market 629A, for cash
consideration of $160,000,000 (subject to working capital and subscriber
adjustments) in accordance with the terms of the Asset Purchase Agreement (the
"Myrtle Asset Purchase Agreement") dated March 10, 1998, between the Borrower,
-------------------------------
the Myrtle Entities and Vanguard.
"Net Proceeds" means, with respect to any event (a) the cash proceeds
------------
received by Holdings, the Borrower and the Subsidiaries in respect of such event
including (i) any cash received in respect of any non-cash proceeds, but only as
and when received, (ii) in the case of a casualty, insurance proceeds, and (iii)
in the case of a condemnation or similar event, condemnation awards and similar
payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket
expenses paid by Holdings, the Borrower and the Subsidiaries to third parties
(other than Affiliates) in connection with such event, (ii) in the case of a
sale or other disposition of an asset (including pursuant to a casualty or
condemnation), the amount of all payments required to be made by the Borrower
and the Subsidiaries as a result of such event to repay Indebtedness (other than
Loans) secured by such asset or otherwise subject to mandatory prepayment as a
result of such event, (iii) the amount of all taxes paid (or reasonably
estimated to be payable) by Holdings, the Borrower and the Subsidiaries, and the
amount of any reserves established by Holdings, the Borrower and the
Subsidiaries to fund contingent liabilities reasonably estimated to be payable,
in each case during the year that such event occurred or the next succeeding
year and that are directly attributable to such event (as determined reasonably
and in good faith by the chief financial officer of the Borrower) and (iv) in
the case of the sale of an entity in which Persons other than Holdings, the
Borrower and the Subsidiaries hold a minority interest but the full amount of
the proceeds relating to the sale of such entity are received by Holdings, the
Borrower or a Subsidiary, any amounts required to be paid to such minority
interest holder in connection with such sale; provided such amounts are not in
--------
excess of such minority interest holder's pro rata share of the proceeds from
such sale.
"Network" means the Borrower's mobile wireless telecommunications
-------
network that serves the Service Regions.
"Network License Agreement" means the Network Membership License
-------------------------
Agreement, dated the date hereof, between AT&T Corp. and Triton PCS Operating
Company, L.L.C., as the same may be amended, supplemented or otherwise modified
from time to time in accordance with Section 6.11 hereof.
<PAGE>
"Net Working Capital" means, at any date, (a) the consolidated current
-------------------
assets of the Borrower and its consolidated Subsidiaries as of such date
(excluding cash and Permitted Investments) minus (b) the consolidated current
liabilities of the Borrower and its consolidated Subsidiaries as of such date
(excluding current liabilities in respect of Indebtedness). Net Working Capital
at any date may be a positive or negative number. Net Working Capital increases
when it becomes more positive or less negative and decreases when it becomes
less positive or more negative.
"Norfolk Acquisition" means the acquisition by one or more of Triton
-------------------
PCS License Company, L.L.C., the Borrower or any direct or indirect subsidiary
thereof (the "Norfolk Entities") of substantially all the assets of AW that are
----------------
used in or useful to the operation of the PCS system operated in the Norfolk,
Virginia BTA, including 20 MHz of the 30 MHz of PCS licenses owned by AW
covering such market, for cash consideration of $91,518,651 and the issuance of
$13,481,349 of Series D Preferred Stock in accordance with the terms of an Asset
Purchase Agreement dated as of August 20, 1998 between AW and Holdings (the
"Norfolk Asset Purchase Agreement").
--------------------------------
"Obligations" has the meaning assigned to such term in the Guarantee
-----------
Agreement and the Security Documents.
"Original Credit Agreement" means the Credit Agreement dated as of
-------------------------
February 3, 1998, among the Borrower, Holdings, the lenders party thereto and
The Chase Manhattan Bank, as administrative agent, as amended and in effect
immediately prior to the Amendment Execution Date.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made under any Loan Document or from the execution, delivery or
enforcement of, or otherwise with respect to, any Loan Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"PCS C Block Auction" means the reauction conducted by the FCC for the
-------------------
sale of Licenses in the C block as set forth in parts 1 and 24 of Title 47 of
the Code of Federal Regulations that commenced on March 23, 1999.
"PCS Documents" means the Securities Purchase Agreement and each of
-------------
the documents that is an exhibit thereto (including the Network License
Agreement).
"Perfection Certificate" means a certificate in the form of Annex 2 to
----------------------
the Security Agreement or any other form approved by the Administrative Agent.
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes, assessments or other
governmental charges that are not yet due or are being contested in
compliance with Section 5.05;
<PAGE>
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlords' and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not overdue
by more than 60 days or are being contested in compliance with Section
5.05;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) liens of attachments, judgments or awards in respect of judgments
that do not constitute an Event of Default under clause (k) of Article VII
and in respect of which adequate reserves have been established in
accordance with GAAP;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
(g) restrictions on the transfer of assets contained in any License
or imposed by the Communications Act or comparable state legislation;
(h) 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;
(i) ground leases in respect of real property on which facilities
owned or leased by the Borrower or its Subsidiaries are located; and
(j) the filing of financing statements regarding leases not
prohibited by this Agreement and rights of lessors in property subject to
such leases
; provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Permitted Investments" means:
---------------------
<PAGE>
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof which
has a combined capital and surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) direct obligations issued by any state of the United States
of America or the District of Columbia or any political subdivision of any
such state or public instrumentality of any thereof maturing, or subject to
tender at the option of the holder thereof, within 270 days after the
acquisition thereof; provided that, at the time of acquisition, the long-
--------
term debt of such state, political subdivision or public instrumentality
has a rating of A (or higher) from S&P or A-1 (or higher) from Moody's (or,
if at any time neither S&P nor Moody's shall be rating such obligations,
then an equivalent rating from such other recognized rating service
acceptable to the Administrative Agent).
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
----------------
the form of Exhibit D-1, between the Borrower, the Subsidiary Loan Parties and
the Administrative Agent for the benefit of the Secured Parties.
<PAGE>
"Pops" means, as of any date, with respect to any BTA, MTA, MSA or
----
RSA, as applicable, the population of such BTA, MTA, MSA or RSA, as applicable,
as such number is most recently published in the "PCS Atlas and Data Book" by
Paul Kagan Associates, Inc.
"Preferred Stock Agreement" means the securities purchase agreement or
-------------------------
agreements (or an amendment or amendments to the Securities Purchase Agreement
entered into for such purpose) to be entered into by some or all of the current
equity investors in Holdings, relating to the purchase by some or all of the
current equity investors in Holdings of (a) $25,000,000 of equity securities of
Holdings for the purpose of funding a portion of the buildout of the Network in
the geographic areas covered by the Additional Licenses, (b) $35,000,000 of
equity securities of Holdings for the purpose of funding a portion of the
purchase price of the Myrtle Acquisition and (c) $30,000,000 of equity
securities of Holdings for the purpose of funding a portion of the purchase
price of the Norfolk Acquisition, in each case in form and substance reasonably
satisfactory to the Lenders.
"Prepayment Event" means:
----------------
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of the Borrower or
any Subsidiary, other than (i) dispositions described in clauses (a), (b),
(d), (e), (f) and (g) of Section 6.06 or (ii) other dispositions resulting
in aggregate Net Proceeds not exceeding $1,000,000 during any fiscal year
of the Borrower; provided that, if no Default exists or would result
--------
therefrom, such dispositions shall constitute a Prepayment Event only to
the extent that the Net Proceeds therefrom have not been applied, within
270 days of receipt thereof, to rebuild or replace the property or assets
sold, transferred or disposed, or to fund additional Capital Expenditures,
and such Prepayment Event shall be deemed to have occurred on such 270th
day; or
(b) any casualty or other insured damage to, or any taking under
power of eminent domain or by condemnation or similar proceeding of, any
property or asset of the Borrower or any Subsidiary; provided that, if no
--------
Default exists or would result therefrom, such event shall constitute a
Prepayment Event only to the extent that the Net Proceeds therefrom have
not been applied to repair, restore or replace such property or asset
within 270 days after such event, and such Prepayment Event shall be deemed
to have occurred on such 270th day; or
(c) [Intentionally omitted].
(d) the incurrence by Holdings, the Borrower or any Subsidiary of
any Indebtedness, other than Indebtedness permitted by Section 6.01;
provided that (i) no such issuance or receipt shall constitute a Prepayment
--------
Event if, after giving effect to such issuance or receipt (x) (I) Senior
Leverage would be less than 5:1 and (II) the Borrower would be in Pro Forma
Compliance or (y) the
<PAGE>
Borrower shall have incurred in the aggregate less than $150,000,000 of
Indebtedness and (ii) the foregoing shall not relieve the Borrower from any
requirement hereunder to obtain the consent of the Lenders for the
incurrence of any Indebtedness.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Pro Forma Compliance" shall exist if (a) Holdings and the Borrower
--------------------
shall be in pro forma compliance with the covenants set forth in Section 6.12
--- -----
recomputed, with respect to income statement items, as of the last day of the
most recently ended fiscal quarter for which financial statements have been
delivered in accordance with Section 5.01 as if the events with respect to which
Pro Forma Compliance is being measured had occurred on the first day of each
relevant period with respect to which Pro Forma Compliance is being measured and
as if Restricted Payments under Section 6.08(a)(iii) were deductions to
Consolidated EBITDA and (b) no Default or Event of Default shall exist either
immediately prior to the events with respect to which Pro Forma Compliance is
being determined or after giving effect to such events.
"Qualified Vendor" means Ericsson Inc. or an affiliate thereof or
----------------
Lucent Technologies Inc. or an affiliate thereof.
"Qualified Vendor Agreement" shall have the meaning assigned
--------------------------
thereto in Section 6.01(a)(vii).
"Real Property Assets" means all interests (including leasehold
--------------------
interests) of the Borrower and its Subsidiaries in real property.
"Real Property-Related Equipment" means all equipment (as defined in
-------------------------------
the UCC) of the Borrower or any Subsidiary that constitutes a fixture (as
defined in the UCC) on Real Property Assets.
"Real Property Subsidiary" means Triton PCS Property Company, L.L.C.
------------------------
and/or any Wholly Owned Subsidiary of the Borrower designated by the Borrower as
a Real Property Subsidiary by notice to the Administrative Agent; provided,
--------
however, that (i) such Subsidiary has no obligations or liabilities other than
-------
as permitted by Section 3.13, (ii) the stock of such Subsidiary is pledged to
the Collateral Agent for the benefit of the Lenders in accordance with the terms
of the Pledge Agreement and (iii) the Borrower and such Subsidiary have entered
into a Special Purpose Subsidiary Funding Agreement.
"Register" has the meaning set forth in Section 9.04(c).
--------
"Related Business" means any business of the type conducted by the
----------------
Borrower and its Subsidiaries on the Effective Date or any business contemplated
to be conducted by the
<PAGE>
Borrower and its Subsidiaries in the business plan delivered to the Lenders
prior to the Second Amendment and Restatement Effective Date and any business
directly related thereto(including the business contemplated to be conducted by
the Borrower by (S) 7.11(b) of the Stockholders Agreement, subject to the
conditions therein).
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
----------------
Exposures, Term Loans and unused Commitments representing more than 50% of the
sum of the total Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Requirement of Law" means, as to any Person, the certificate of
------------------
incorporation and by-laws, the partnership agreement 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.
"Responsible Officer" means any of the president, chief executive
-------------------
officer, chief financial officer, treasurer or controller of the Borrower.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any shares of any class
of capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancelation or termination of any such shares of capital stock of the Borrower
or any Subsidiary or any option, warrant or other right to acquire any such
shares of capital stock of the Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Revolving Commitment, as applicable. The
initial aggregate amount of the Lenders' Revolving Commitments is $100,000,000.
<PAGE>
"Revolving Exposure" means, with respect to any Lender at any time,
------------------
the sum of (i) the outstanding principal amount of such Lender's Revolving
Loans, (ii) its LC Exposure at such time and (iii) in the case of the Swingline
Lender, its Swingline Exposure.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
----------------
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (e) of Section
--------------
2.01.
"Revolving Maturity Date" means August 4, 2006.
-----------------------
"RSA" means a Rural Service Area, as defined in 47 C.F.R. (S) 24.202.
---
"S&P" means Standard & Poor's.
---
"Second Amendment and Restatement Effective Date" means the date on
-----------------------------------------------
which the conditions specified in Section 5 of the First Amendment are satisfied
(or waived).
"Second Amendment and Restatement Execution Date" means September
-----------------------------------------------
[ ], 2000, the date of execution of the first amendment (the "First Amendment")
to the First Amended and Restated Credit Agreement that amends and restates such
Agreement.
"Secured Parties" has the meaning assigned to such term in the
---------------
Security Agreement.
"Secured Real Property Assets" means all Real Property Assets
----------------------------
(including Mortgaged Properties) in which the Administrative Agent, for the
benefit of the Secured Parties, has a first priority perfected Mortgage or other
first priority perfected security interest pursuant to the Security Documents.
"Secured Real Property-Related Equipment" means Real Property Related
---------------------------------------
Equipment in which the Administrative Agent, for the benefit of the Secured
Parties, has a first priority perfected security interest pursuant to the
Security Documents.
"Securities Purchase Agreement" means the Securities Purchase
-----------------------------
Agreement by and among AW, Holdings, and the other parties thereto dated as of
October 8, 1997, including the schedules thereto.
"Security Agreement" means the Security Agreement among the Borrower,
------------------
the Subsidiary Loan Parties and the Administrative Agent, substantially in the
form of Exhibit E-1.
"Security Documents" means the Security Agreement, the Pledge
------------------
Agreement, the Mortgages and the Consents to Assignment and each other security
agreement or other instrument or document executed and delivered by a Loan Party
pursuant to any of the foregoing or pursuant to Section 5.12 or 5.13 to secure
any of the Obligations.
<PAGE>
"Senior Debt" shall mean all Indebtedness of Holdings, the Borrower
-----------
and the Subsidiaries on a consolidated basis other than the Subordinated Debt.
"Senior Leverage" means, on any date, the ratio of (a) Senior Debt on
---------------
such date to (b) Annualized EBITDA for the most recently ended fiscal quarter
for which financial statements have been delivered in accordance with Section
5.01.
"Series A Preferred Stock" means the Series A Preferred Stock, par
------------------------
value $.01 per share, of Holdings.
"Series C Preferred Stock" means the Series C Preferred Stock, par
------------------------
value $.01 per share, of Holdings.
"Series D Preferred Stock" means the Series D Preferred Stock,
------------------------
par value $.01 per share, of Holdings.
"Service Regions" means (i) the BTAs, MSAs and RSAs listed on Schedule
---------------
3.14 (excluding any areas in which the Borrower and its Subsidiaries have ceased
to provide service with the consent of the Required Lenders or as a result of a
transfer of assets pursuant to Section 6.06(c)) and (ii) any other geographic
areas with respect to which the Borrower or its Subsidiaries acquire Licenses
after the First Amendment and Restatement Effective Date in accordance with the
terms of this Agreement.
"Special Purpose Subsidiary" means any License Subsidiary and any Real
--------------------------
Property Subsidiary.
"Special Purpose Subsidiary Funding Agreement" means an agreement
--------------------------------------------
between the Borrower and/or Triton PCS Operating Company, L.L.C. and each
Special Purpose Subsidiary whereby (a) such Special Purpose Subsidiary agrees to
provide to the Borrower the benefit of the use of such Special Purpose
Subsidiary's assets, (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, (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 and (d) the Borrower and such Special Purpose Subsidiary agree, for the
benefit of the Administrative Agent and the Secured Parties, to the assignment
by each of its rights thereunder to the Administrative Agent for the benefit of
the Secured Parties.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
----------------------
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of
<PAGE>
the maximum reserve percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is subject for eurocurrency funding (currently referred
to as "Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D.
Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in
any reserve percentage.
"Stockholders Agreement" means the Stockholders' Agreement among AW,
----------------------
the Borrower and the other parties thereto dated as of February 4, 1998.
"Subordinated Debt" means high yield subordinated debt issued by the
-----------------
Borrower or Holdings (all of which may be cash-pay) on terms not less favorable
to the Lenders than the terms governing the 11% Notes and maturing on a date
that is not earlier than November 4, 2007 and subordinated Guarantees thereof by
the Subsidiaries (provided such Guarantees are on terms not less favorable to
the Lenders than the existing subordinated Guarantees of the 11% Notes) and
refinancings of such Indebtedness; provided that (i) any such refinancing
Indebtedness (a) shall not have a greater outstanding principal amount, an
earlier maturity date, or a decreased weighted average life than the
Subordinated Debt refinanced and (b) shall be subordinated to the Indebtedness
created under the Loan Documents to at least the extent of, and shall otherwise
be issued on terms no less favorable to the Lenders than, the Subordinated Debt
refinanced and (ii) the proceeds of such refinancing Indebtedness shall be used
solely to repay the Subordinated Debt refinanced thereby and fees and expenses
in connection therewith.
"Subordinated Debt Documents" means the indenture or indentures under
---------------------------
which any Subordinated Debt is issued and all other instruments, agreements and
other documents evidencing or governing such Subordinated Debt, if any, or
providing for any Guarantee or other right in respect thereof.
"Subscribers" means as of any date, all customers then receiving
-----------
Wireless Services from the Borrower or any of its Subsidiaries none of the
subscriber payments (other than those disputed in good faith by such customer)
of which are, as of such date, past due more than 60 days (or past due for more
than such shorter period of time as the Borrower may have established for
accounting or credit policy purposes for treating a customer as not being in
good standing).
<PAGE>
"subsidiary" means, with respect to any Person (such Person, the
----------
"parent") at any date, any corporation, limited liability company, partnership,
-------
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power or, in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, controlled or held, or (b) that is, as of
such date, otherwise Controlled, by the parent or one or more subsidiaries of
the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower. The parties hereto
----------
acknowledge that no Bidding Entity is a Subsidiary.
"Subsidiary Loan Party" means any Subsidiary that is not a Foreign
---------------------
Subsidiary.
"Swingline Exposure" means, at any time, the aggregate principal
------------------
amount of all Swingline Loans outstanding at such time.
"Swingline Lender" means a Lender to be selected by the Borrower (with
----------------
the consent of the Administrative Agent, such consent not to be unreasonably
withheld), in its capacity as lender of Swingline Loans hereunder or any
successor Swingline Lender appointed pursuant to Section 2.20(c).
"Swingline Loan" means a Loan made pursuant to Section 2.20.
--------------
"System" means, as to any Person, assets constituting a radio
------
communications system authorized under the rules for wireless communications
services (including any license and the network, marketing, distribution, sales,
customer interface and operations functions relating thereto) owned and operated
by such Person.
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loans" means Tranche A Term Loans, Tranche B Term Loans, Tranche
----------
C Term Loans, Tranche D Term Loans and Incremental Term Loans.
<PAGE>
"Total Capital" means, at any date, the sum of (a) Total Debt
-------------
outstanding on such date plus (b) Contributed Equity on such date plus (c)
----
Committed Equity on such date.
"Total Debt" shall mean, at any time, all Indebtedness of Holdings
----------
(other than Indebtedness of any Unrestricted Subsidiary), the Borrower and the
Subsidiaries as determined on a consolidated basis in accordance with GAAP.
"Tower Sale" means the sale of up to $75,000,000 of assets to American
----------
Tower, L.P. and the leaseback of such assets pursuant to the Asset Purchase
Agreement (the "Tower Sale Asset Purchase Agreement") dated July 13, 1999, among
-----------------------------------
Triton PCS Operating Company L.L.C., Triton PCS Property Company L.L.C. and
American Tower, L.P.; provided that the value of the assets sold in connection
--------
with the Tower Sale shall not exceed $75,000,000 in the aggregate.
"Tranche A Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of February 4, 2001 and the date
of termination of the Tranche A Commitments.
"Tranche A Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche A Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
A Term Loans to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Tranche A Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche A Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche A Commitments is $175,000,000.
"Tranche A Lender" means a Lender with a Tranche A Commitment or an
----------------
outstanding Tranche A Term Loan.
"Tranche A Maturity Date" means August 4, 2006.
-----------------------
"Tranche A Term Loan" means a Loan made pursuant to clause (a) of
-------------------
Section 2.01.
"Tranche B Availability Period" means the period from and including
-----------------------------
the Effective Date to but excluding the earlier of the date that is six months
from the Effective Date and the date of termination of the Tranche B
Commitments.
"Tranche B Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche B Term Loans hereunder,
expressed as an amount representing the
<PAGE>
maximum principal amount of the Tranche B Term Loans to be made by such Lender
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.06 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Tranche B Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche B Commitment, as applicable. The initial aggregate amount of the
Lenders' Tranche B Commitments is $150,000,000.
"Tranche B Lender" means a Lender with a Tranche B Commitment or an
----------------
outstanding Tranche B Term Loan.
"Tranche B Maturity Date" means May 4, 2007.
-----------------------
"Tranche B Rate" means, with respect to any Tranche B Term Loan (a)
--------------
2.00% per annum, in the case of an ABR Loan, and (b) 3.00% per annum, in the
case of a Eurodollar Loan.
"Tranche B Term Loan" means a Loan made pursuant to clause (b) of
-------------------
Section 2.01.
"Tranche C Availability Period" means the period from and including
-----------------------------
the earlier of (i) the date that final definitive documentation with respect to
the Additional Capital Contributions has been executed on terms reasonably
satisfactory to the Administrative Agent and (ii) the date that Holdings
receives Net Proceeds of at least $75,000,000 from an initial public offering of
its equity securities to but excluding the earlier of February 4, 2001 and the
date of termination of the Tranche C Commitments.
"Tranche C Commitment" means, with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche C Term Loans hereunder,
expressed as an amount representing the maximum principal amount of the Tranche
C Term Loans to be made by such Lender hereunder, as such commitment may be (a)
reduced from time to time pursuant to Section 2.06 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 9.04. The initial amount of each Lender's Tranche C Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche C Commitment, as applicable. The
initial aggregate amount of the Lenders' Tranche C Commitments is $175,000,000.
"Tranche C Lender" means a Lender with a Tranche C Commitment or
----------------
an outstanding Tranche C Term Loan.
"Tranche C Maturity Date" means August 4, 2006.
-----------------------
"Tranche C Term Loan" means a Loan made pursuant to clause (c) of
-------------------
Section 2.01.
<PAGE>
"Tranche D Availability Period" means the period from and including
-----------------------------
the Second Amendment and Restatement Effective Date to but excluding the earlier
of December 31, 2001 and the date of termination of the Tranche D Commitments.
"Tranche D Commitment" means with respect to each Lender, the
--------------------
commitment, if any, of such Lender to make Tranche D Loans hereunder, expressed
as an amount representing the maximum principal amount of Tranche D Term Loans
hereunder, as such commitment may be (a) reduced pursuant to Section 2.06 and
(b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04. The initial amount of each Lender's Tranche D
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Tranche D Commitment. The
initial aggregate amount of the Lenders' Tranche D Commitment is $150,000,000.
If on August 4, 2001, $75,000,000 exceeds the aggregate amount of Tranche D Term
Loans made theretofore (regardless of whether such Loans have been prepaid), the
aggregate Tranche D Commitments will be automatically reduced on such date by
the amount of such excess.
"Tranche D Lender" means a Lender with a Tranche D Commitment or
----------------
an outstanding Tranche D Term Loan.
"Tranche D Maturity Date" means August 4, 2006.
-----------------------
"Tranche D Term Loan" means a loan made pursuant to clause (d) of
-------------------
Section 2.01.
"Transactions" means (a) the execution, delivery and performance by
------------
each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder, (b) the execution, delivery and performance by each Loan
Party of the Subordinated Debt Documents relating to the 11% Notes to which it
is to be a party, the issuance of such Subordinated Debt, if any, and the use of
the proceeds thereof, (c) the Tower Sale and (d) the Initial Equity
Contributions and the Additional Capital Contributions.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" mean the Uniform Commercial Code of the State of New York.
---
"Unrestricted Subsidiary" means any subsidiary of Holdings or any
-----------------------
other direct or indirect investment by Holdings in the Capital Stock of any
other Person (other than the
<PAGE>
Borrower or any Subsidiary) so long as at the time such subsidiary is acquired
or created or such investment is made (i) no Default or Event of Default shall
have occurred and be continuing or would result therefrom, (ii) Holdings shall
have notified the Administrative Agent of its acquisition or creation of such
subsidiary or its making of such investment and its ownership interest therein
and its designation thereof as an Unrestricted Subsidiary concurrently with such
acquisition, creation or investment and the intended purposes of such subsidiary
or investment, (iii) all transactions related thereto shall be consummated in
accordance with applicable laws, (iv) Holdings and the Borrower shall be in Pro
Forma Compliance, (v) none of Holdings, the Borrower or any Subsidiary shall
have any contingent liability in respect thereof (other than any contingent tax
liabilities in respect of which there shall exist a tax sharing agreement with
the other owners of such Unrestricted Subsidiary providing for an allocation of
tax liabilities and benefits customary in similar circumstances), (vi) any
management or service provided by Holdings, the Borrower or any Subsidiary to
such subsidiary or investment shall be provided in consideration of cash
remuneration in an amount not less than could have been obtained from a third
party on an arms' length basis and (vii) such subsidiary or investment shall be
capitalized solely from (A) contributions to the capital of Holdings in an
aggregate amount not to exceed $75,000,000 to be contributed substantially
contemporaneously by Holdings to such Unrestricted Subsidiary, (B) investments
by Persons other than Holdings, the Borrower or any Subsidiary and (C) the
proceeds of Indebtedness of Persons other than Holdings, the Borrower or any
Subsidiary.
"Wholly Owned Subsidiary" of any Person shall mean a subsidiary of
-----------------------
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the equity or 100% of the
ordinary voting power or 100% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held by such Person
or one or more wholly owned subsidiaries of such Person or by such Person and
one or more wholly owned subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Wireless Services" means broadband personal communications services,
-----------------
700 MHz Guard Band Services or other wireless telecommunications services
provided in one or more Systems (including cellular services provided on the 850
MHz band to the extent such services constitute a Related Business).
<PAGE>
SECTION 1.02. Classification of Loans and Borrowings. For purposes
---------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
-----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
----
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
----------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights and (f) the words "on
the date hereof," "as of the date hereof" or "the date of this Agreement" shall
be construed to refer to February 3, 1998, the Agreement Date.
SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise
-----------------------
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have
<PAGE>
become effective until such notice shall have been withdrawn or such provision
amended in accordance herewith.
(b) All computations required to be made hereunder with respect to
the Borrower to demonstrate compliance with any of the financial covenants
contained in Section 6.12 and any computation based on "Consolidated EBITDA"
(except for the computation of "Excess Cash Flow") shall be computed to give
effect on a pro forma basis to any acquisition, disposition or similar event
permitted by this Agreement and consummated prior to the computation as if such
acquisition, disposition or other event had occurred on the first day of the
relevant period. All pro forma computations required to be made hereunder giving
effect to any such acquisition, disposition or similar event shall reflect on a
pro forma basis such event and, to the extent applicable, the historical
earnings, cash flows and expenses associated with the assets acquired or
disposed of and any related incurrence or reduction of Indebtedness, but shall
not take into account any projected synergies or similar benefits expected to be
realized as a result of such event.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
------------
forth herein, each Lender agrees (a) to make Tranche A Term Loans to the
Borrower during the Tranche A Availability Period in an aggregate principal
amount not exceeding its Tranche A Commitment, (b) to make Tranche B Term Loans
to the Borrower during the Tranche B Availability Period in a principal amount
not exceeding its Tranche B Commitment, (c) to make Tranche C Term Loans to the
Borrower during the Tranche C Availability Period in an aggregate principal
amount not exceeding its Tranche C Commitment, (d) to make Tranche D Term Loans
to the Borrower during the Tranche D Availability Period in an aggregate
principal amount not exceeding its Tranche D Commitment and (e) to make
Revolving Loans to the Borrower from time to time during the Revolving
Availability Period in an aggregate principal amount that will not result in
such Lender's Revolving Exposure exceeding such Lender's Revolving Commitment.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Revolving Loans. Amounts
repaid or prepaid in respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans and Borrowings. (a) Each Loan (other than a
---------------------
Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the
same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any
<PAGE>
other Lender of its obligations hereunder; provided that the Commitments of the
--------
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.12, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
Borrower may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of
such Lender to make such Loan; provided that any exercise of such option shall
--------
not affect the obligation of the Borrower to repay such Loan in accordance with
the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $2,000,000; provided
--------
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.18(e)(ii). Borrowings of more than one Type and Class may be outstanding at
the same time; provided that there shall not at any time be more than a total of
--------
10 Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Revolving Maturity Date, Tranche A Maturity Date, Tranche B Maturity
Date, Tranche C Maturity Date or the Tranche D Maturity Date, as applicable.
SECTION 2.03. Requests for Borrowings. To request a Revolving
------------------------
Borrowing or Term Borrowing, the Borrower shall notify the Administrative Agent
of such request by telephone (a) in the case of a Eurodollar Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date
of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than
11:00 a.m., New York City time, one Business Day before the date of the proposed
Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall
be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
<PAGE>
(i) whether the requested Borrowing is to be a Revolving Borrowing,
Tranche A Term Borrowing, Tranche B Term Borrowing, Tranche C Term
Borrowing or Tranche D Term Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings. (a) Each Lender shall make
----------------------
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders; provided that Swingline Loans shall be made as
--------
provided in Section 2.20. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request; provided, that ABR Revolving Loans made to finance the reimbursement of
--------
an LC Disbursement as provided in Section 2.18(e)(ii) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the
<PAGE>
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with paragraph (a) of this Section and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.05. Interest Elections. (a) Each Revolving Borrowing and
-------------------
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
<PAGE>
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided
herein, at the end of such Interest Period such Borrowing shall be converted to
an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Borrowing may be converted to
or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest
Period applicable thereto.
(f) A Borrowing of any Class may not be converted to or continued as
a Eurodollar Borrowing if after giving effect thereto (i) the Interest Period
therefor would commence before and end after a date on which any principal of
the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class
with Interest Periods ending on or prior to such
<PAGE>
scheduled repayment date plus the aggregate principal amount of outstanding ABR
Borrowings of such Class would be less than the aggregate principal amount of
Loans of such Class required to be repaid on such scheduled repayment date.
SECTION 2.06. Termination and Optional Reduction of Commitments. (a)
--------------------------------------------------
Unless previously terminated, (i) the Tranche A Commitments shall terminate at
5:00 p.m., New York City time, on the last day of the Tranche A Availability
Period, (ii) the Tranche B Commitments shall terminate at 5:00 p.m., New York
City time, on the last day of the Tranche B Availability Period, (iii) the
Tranche C Commitments shall terminate at 5:00 p.m., New York City time, on the
last day of the Tranche C Availability Period, (iv) the Tranche D Commitments
shall terminate at 5:00 p.m., New York City time, on the last day of the Tranche
D Availability Period and (v) the Revolving Commitments shall terminate on the
Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments of any Class; provided that (i) each reduction of the
--------
Commitments of any Class shall be in an amount that is an integral multiple of
$1,000,000 and not less than $2,000,000, (ii) the Borrower shall not terminate
or reduce the Revolving Commitments if, after giving effect to any concurrent
prepayment of the Revolving Loans in accordance with Section 2.09, the sum of
the Revolving Exposures would exceed the total Revolving Commitments and (iii)
the Borrower may not reduce or terminate the Tranche B Commitments if any
portion of the Revolving Commitments or Tranche A Commitments is outstanding.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
--------
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments of
any Class shall be permanent. Each reduction of the Commitments of any Class
shall be made ratably among the Lenders in accordance with their respective
Commitments of such Class.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
-------------------------------------
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then
<PAGE>
unpaid principal amount of each Revolving Loan of such Lender on the Revolving
Maturity Date, (ii) to the Administrative Agent for the account of each Lender
the then unpaid principal amount of each Term Loan of such Lender as provided in
Section 2.08 and (iii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of (i) the Revolving Maturity Date and
(ii) the first Business Day after the Swingline Lender demands repayment of such
Swingline Loan (or such other date as may be fixed by agreement between the
Borrower and the Swingline Lender).
(b) In the event and on such occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrower shall prepay
Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Agent pursuant to Section 2.18(j)) in an
aggregate amount equal to such excess.
(c) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(d) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the 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) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(e) The entries made in the accounts maintained pursuant to paragraph
(c) or (d) of this Section shall, to the extent permitted by law, be prima facie
----- -----
evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
--------
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(f) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Borrower shall execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent and the Borrower. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all
times (including after assignment pursuant to Section 9.04) be represented by
one or more promissory notes in such form payable
<PAGE>
to the order of the payee named therein (or, if such promissory note is a
registered note, to such payee and its registered assigns).
SECTION 2.08. Automatic Revolving Commitment Reductions; Amortization
-------------------------------------------------------
of Term Loans. (a) The aggregate amount of the Lenders' Revolving Commitments
--------------
shall automatically and permanently reduce in eight consecutive quarterly
reductions occurring on August 4, 2004, and on each successive date thereafter
which is three months after the preceding reduction date, in the aggregate
amount set forth below for each reduction:
Reduction Amount
--------- ------
1-2 $ 5,000,000
---
3-6 $10,000,000
---
7-8 $25,000,000
---
(b) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay each of the Tranche A Term Loans, the Tranche C Term
Loans and Tranche D Term Loans in 18 consecutive quarterly installments, payable
on February 4, 2002, and on each successive date thereafter which is three
months after the preceding installment date, in the aggregate amount set forth
below for each installment:
Tranche A Tranche C Tranche D
Installment Amount Amount Amount
----------- --------- --------- --------
1-4 $ 4,375,000 $ 4,375,000 $ 3,750,000
---
5-8 $ 6,562,500 $ 6,562,500 $ 5,625,000
---
9-12 $ 8,750,000 $ 8,750,000 $ 7,500,000
----
13-16 $10,937,500 $10,937,500 $ 9,375,000
-----
17-18 $26,250,000 $26,250,000 $22,500,000
-----
<PAGE>
(c) Subject to adjustment pursuant to paragraph (e) of this Section,
the Borrower shall repay each of the Tranche B Term Loans in 21 consecutive
quarterly installments, payable on February 4, 2002, and on each successive date
thereafter which is three months after the preceding installment date, in the
aggregate amount set forth below for each installment:
Tranche B
Installment Amount
----------- ---------
1-4 $ 375,000
---
5-8 $ 375,000
---
9-12 $ 375,000
----
13-16 $ 375,000
-----
17-20 $ 7,500,000
-----
21 $114,000,000
--
(d) To the extent not previously paid, (i) all Tranche A Term Loans
shall be due and payable on the Tranche A Maturity Date, (ii) all Tranche B Term
Loans shall be due and payable on the Tranche B Maturity Date, (iii) all Tranche
C Term Loans shall be due and payable on the Tranche C Maturity Date and (iv)
all Tranche D Term Loans shall be due and payable on the Tranche D Maturity
Date.
(e) If the initial aggregate amount of the Lenders' Term Commitments
of any Class exceeds the aggregate principal amount of Term Loans of such Class
that are made during the Tranche A Availability Period, the Tranche B
Availability Period, the Tranche C Availability Period or the Tranche D
Availability Period, as the case may be, then the scheduled repayments of Term
Borrowings of such Class to be made pursuant to this Section shall be reduced
ratably by an aggregate amount equal to such excess. Any prepayment of a Term
Borrowing of any Class shall be applied to reduce the subsequent scheduled
repayments of the Term Borrowings of such Class to be made pursuant to this
Section ratably.
(f) Prior to any repayment of any Term Borrowings of any Class
hereunder, the Borrower shall select the Borrowing or Borrowings of the
applicable Class to be repaid and shall notify the Administrative Agent by
telephone (confirmed by telecopy) of such selection not later than 11:00 a.m.,
New York City time, three Business Days before the scheduled date of such
repayment; provided that each repayment of Term Borrowings of any Class shall be
--------
applied to repay any outstanding ABR Term Borrowings of such Class before any
other Borrowings of such Class. Each repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the
--------------------
right at any time and from time to time to prepay
<PAGE>
any Borrowing in whole or in part, subject to the requirements of this Section.
(b) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Borrower or any Subsidiary in respect of any
Prepayment Event, immediately after such Net Proceeds are received, the Borrower
shall prepay Term Borrowings (to be applied ratably among the Tranche A Term
Loans, the Tranche B Term Loans, the Tranche C Term Loans, Tranche D Term Loans
and the Incremental Term Loans, if any, based on their then respective amounts)
equal to 100% of such Net Proceeds.
(c) Following the end of the fiscal year of the Borrower ending
December 31, 2001 and following the end of each subsequent fiscal year, the
Borrower shall prepay Term Borrowings (to be applied ratably among the Tranche A
Term Loans, the Tranche B Term Loans, the Tranche C Term Loans, Tranche D Term
Loans and the Incremental Term Loans, if any, based on their then respective
amounts) equal to 50% of Excess Cash Flow for such fiscal year. Each prepayment
pursuant to this paragraph shall be made on or before the date on which
financial statements are delivered pursuant to Section 5.01 with respect to the
fiscal year for which Excess Cash Flow is being calculated (and in any event
within 105 days after the end of such fiscal year).
(d) Prior to any optional or mandatory prepayment of Borrowings
hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid
and shall specify such selection in the notice of such prepayment pursuant to
paragraph (f) of this Section; provided that each prepayment of Borrowings of
--------
any Class shall be applied to prepay ABR Borrowings of such Class before any
other Borrowings of such Class. In the event of any optional or mandatory
prepayment of Term Borrowings made at a time when Term Borrowings of more than
one Class remain outstanding, the Borrower shall select Term Borrowings to be
prepaid so that the aggregate amount of such prepayment is allocated among the
Tranche A Term Borrowings, Tranche B Term Borrowings, Tranche C Term Borrowings,
Tranche D Term Borrowings and Incremental Term Borrowings, if any, pro rata
based on the aggregate principal amount of outstanding Borrowings of each such
Class; provided that any Tranche B Lender may elect, by notice to the
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Administrative Agent by telephone (confirmed by telecopy) at least one Business
Day prior to the prepayment date, to decline all or any portion of any
prepayment of its Tranche B Term Loans pursuant to this Section (other than an
optional prepayment pursuant to paragraph (a) of this Section, which may not be
declined), in which case the Net Proceeds or Excess Cash Flow that would have
been applied to prepay Tranche B Term Loans but were so declined shall be
applied to prepay Tranche A Term Loans, Tranche C Term Loans, Tranche D Term
Loans
<PAGE>
and Incremental Term Loans, if any, on a pro rata basis based on their then
respective amounts.
(e) The amount of any optional or mandatory prepayments allocated to
Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term
Loans and Incremental Term Loans, if any, shall be applied pro rata to reduce
the principal amount of the then remaining amortization installments applicable
to such Loans set forth in Section 2.08. The amount of any optional commitment
reductions allocated to the Revolving Loans shall be applied pro rata to reduce
the principal amount of the then remaining reductions applicable to such
Commitments set forth in Section 2.08. Any reduction of the Revolving
Commitments shall be accompanied by prepayment of Revolving Loans to the extent
the aggregate amount of such loans outstanding exceeds the total amount of the
Revolving Commitments as so reduced.
(f) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing for which the Tranche B Lenders
may make the election described in the proviso to the second sentence of Section
2.09(d), not later than 11:00 a.m., New York City time, on the Business Day
before the date of prepayment and, for all other ABR Borrowings, not later than
11:00 a.m., New York City time, on the date of prepayment, and (iii) in the case
of prepayment of a Swingline Loan, not later than 12:00 noon, New York City
time, on the date of prepayment, or such other time as may be agreed by the
Borrower and the Swingline Lender. Each such notice shall be irrevocable and
shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a
reasonably detailed calculation of the amount of such prepayment; provided that,
--------
if a notice of optional prepayment is given in connection with a conditional
notice of termination of the Revolving Commitments as contemplated by Section
2.06, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.06. Promptly following
receipt of any such notice (other than a notice relating solely to Swingline
Loans), the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount that
would be permitted in the case of an advance of a Borrowing of the same Type as
provided in Section 2.02, except as necessary to apply fully the required amount
of a mandatory prepayment. Each prepayment of a Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing. Prepayments shall be
<PAGE>
accompanied by accrued interest to the extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
-----
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the daily unused amount of each
Commitment of such Lender for each day during the period (i) with respect to any
Revolving Commitment, Tranche A Commitment, or Tranche B Commitment, from and
including the date hereof to but excluding the date on which such Commitment
terminates (ii) with respect to any Tranche C Commitment, from and including
the First Amendment and Restatement Effective Date to but excluding the date on
which such Commitment terminates and (iii) with respect to any Tranche D
Commitment, from and including the Second Amendment and Restatement Execution
Date to but excluding the date on which such Commitment terminates. Accrued
commitment fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which any Commitments of
such Lender shall expire or terminate, commencing on the first such date to
occur after the date hereof. All commitment fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender, but the Swingline Exposure shall not be
deemed to be a use of the Swingline Lender's Commitment.
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing Bank
in the case of fees payable to it) for distribution, in the case of commitment
fees and participation fees, to the Lenders entitled thereto. Fees paid shall
not be refundable under any circumstances.
(d) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the same Applicable
Margin as interest on Eurodollar Revolving Loans on the average daily amount of
such Lender's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the First
Amendment and Restatement Effective Date to but excluding the later of the date
on which such Lender's Revolving Commitment terminates and the date on which
such Lender ceases to have any LC Exposure,
<PAGE>
and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate or
rates separately agreed upon between the Borrower and the Issuing Bank on the
average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the First Amendment and Restatement Effective Date to but excluding
the later of the date of termination of the Revolving Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or any processing of drawings thereunder. Participation
fees and fronting fees accrued through and including the last day of March,
June, September and December of each year shall be payable on the third Business
Day following such last day, commencing on the first such date to occur after
the First Amendment and Restatement Effective Date; provided that all such fees
--------
shall be payable on the date on which the Revolving Commitments terminate and
any such fees accruing after the date on which the Revolving Commitments
terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
---------
shall bear interest at the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Margin.
(c) The Loans comprising each Swingline Borrowing shall bear interest
at the rate agreed by the Borrower and the Swingline Lender in accordance with
Section 2.20(b).
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Revolving Commitments; provided that (i) interest accrued
--------
pursuant to
<PAGE>
paragraph (c) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
---------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist
for ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for such
Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist (provided that the
Administrative Agent shall use commercially reasonable efforts to determine
whether or not the circumstances which have caused the notice, continue to
exist), (i) any Interest Election Request that requests the conversion of any
Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall
be ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
<PAGE>
SECTION 2.13. Increased Costs. (a) If any Change in Law shall:
----------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition (other than a condition relating to a Tax)
affecting this Agreement or Eurodollar Loans made by such Lender (or any
Letter of Credit or participation therein);
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or Issuing Bank or such Lender's or Issuing Bank's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's or Issuing Bank's policies and the policies of such
Lender's or Issuing Bank's holding company with respect to capital adequacy),
then from time to time the Borrower will pay to such Lender or Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or Issuing Bank or such Lender's or Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or Issuing
<PAGE>
Bank the amount shown as due on any such certificate within 10 days after
receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; provided that
--------
the Borrower shall not be required to compensate a Lender or Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or Issuing Bank, as the case
may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
----------------
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
-----------------------
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.09(f) and is revoked in accordance therewith), or (d)
the assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount reasonably determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate that would
have been applicable to such Loan, for the period from the date of such event to
the last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such principal amount for such period at the interest rate which such
Lender would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof.
<PAGE>
SECTION 2.15. Taxes. (a) Any and all payments by or on account of
------
any obligation of the Borrower hereunder or under any other Loan Document shall
be made free and clear of and without deduction for any Indemnified Taxes or
Other Taxes; provided that if the Borrower shall be required to deduct any
--------
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender, and the Issuing Bank within 30 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender, or the Issuing Bank, on or with respect to
any payment by or on account of any obligation of the Borrower hereunder or
under any other Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender, the Issuing Bank or by the Administrative Agent on its own
behalf or on behalf of a Lender, or the Issuing Bank, shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall,
upon request, deliver to the Administrative Agent the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy
<PAGE>
to the Administrative Agent), at the time or times prescribed by applicable law,
such properly completed and executed documentation prescribed by applicable law
or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate, including, without limitation, if such
Lender is not a "bank" within the meaning of Section 881(c)(3)(A) of the Code
and intends to claim exemption from the U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Foreign Lender delivers a Form W-8, a certificate representing
that such Foreign Lender is not a bank for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Foreign Lender claiming
complete exemption from, or a reduced rate of, U.S. Federal withholding tax on
payments of interest by the Borrower under this Agreement and the other Loan
Documents.
(f) If the Administrative Agent or a Lender receives a refund in
respect of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall within 30 days from
the date of such receipt pay over to the Borrower (a) such refund (but only to
the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section 2.15 with respect to the Indemnified Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and (b) interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that the
-------- -------
Borrower, upon the request of the Administrative Agent or such Lender shall
repay the amount paid over to the Borrower (plus penalties, interest or other
charges) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority.
SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of
--------------------------------------------------
Setoffs. (a) The Borrower shall make each payment required to be made by it
--------
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.13,
2.14 or 2.15, or otherwise) prior to 12:00 noon, New York City time, on the date
when due, in immediately available funds, without setoff or counterclaim. Any
amounts received after 2:00 p.m. on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its
<PAGE>
offices at 270 Park Avenue, New York, New York, except payments to be made
directly to the Issuing Bank or Swingline Lender as expressly provided herein
and except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be
made directly to the Persons entitled thereto and payments pursuant to other
Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set off or
counterclaim or otherwise, obtain payment in respect of any Loan or
participation in LC Disbursements as a result of which the unpaid principal
portion of its Tranche A Term Loans, Tranche B Term Loans, Tranche C Term Loans,
Tranche D Term Loans, Incremental Term Loans (if any), Revolving Loans or
participations in LC Disbursements shall be proportionately less than the unpaid
principal portion of the Tranche A Term Loans, Tranche B Term Loans, Tranche C
Term Loans, Tranche D Term Loans, Incremental Term Loans (if any), Revolving
Loans or participations in LC Disbursements of any other Lender, it shall be
deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a
participation in the Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans, Tranche D Term Loans, Incremental Term Loans (if any), Revolving Loans or
participations in LC Disbursements, as the case may be, of such other Lender, so
that the aggregate unpaid principal amount of the Tranche A Term Loans, Tranche
B Term Loans, Tranche C Term Loans, Tranche D Term Loans, Incremental Term Loans
(if any), Revolving Loans and participations in LC Disbursements and
participations in Tranche A Term Loans, Tranche B Term Loans, Tranche C Term
Loans, Tranche D Term Loans, Incremental Term Loans (if any), Revolving Loans or
participations in LC Disbursements held by each Lender shall be in the same
<PAGE>
proportion to the aggregate unpaid principal amount of all Tranche A Term Loans,
Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans, Incremental
Term Loans (if any), Revolving Loans or participations in LC Disbursements then
outstanding as the principal amount of its Tranche A Term Loans, Tranche B Term
Loans, Tranche C Term Loans, Tranche D Term Loans, Incremental Term Loans (if
any), Revolving Loans or participations in LC Disbursements outstanding prior to
such exercise of any right of setoff or counterclaim or other event was to the
principal amount of all Tranche A Term Loans, Tranche B Term Loans, Tranche C
Term Loans, Tranche D Term Loans, Incremental Term Loans (if any), Revolving
Loans or participations in LC Disbursements outstanding prior to such exercise
of any right of setoff or counterclaim or other event; provided that (i) if any
--------
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank severally agrees to repay
to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or the Issuing Bank with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of
payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation.
<PAGE>
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(b), 2.16(d), 2.18(d) or (e) or 9.03(c), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a)
-----------------------------------------------
If any Lender requests compensation under Section 2.13, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
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shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior
<PAGE>
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to apply.
SECTION 2.18. Letters of Credit. (a) General. Subject to the terms
------------------ --------
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
-----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $25,000,000
and (ii) the total Revolving Exposures shall not exceed the total Revolving
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
----------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
<PAGE>
(d) Participations. By the issuance of a Letter of Credit (or an
---------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from the Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement.
--------------
(i) If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit and such LC Disbursement is less than $2,000,000, the
Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than
12:00 noon, New York City time, on the date that such LC Disbursement is
made, if the Borrower shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or, if such notice
has not been received by the Borrower prior to such time on such date, then
not later than 12:00 noon, New York City time, on (A) the Business Day that
the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (B) the Business
Day immediately following the day that the Borrower receives such notice,
if such notice is not received prior to such time on the day of receipt.
The Administrative Agent shall notify each Revolving Lender of any LC
Disbursement that is required to be reimbursed under the preceding sentence
and that is not so reimbursed. Such notice shall include the payment then
due from the Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each
Revolving Lender shall pay to the Administrative Agent its Applicable
Percentage of the payment then due from the
<PAGE>
Borrower, in the same manner as provided in Section 2.04 with respect to Loans
made by such Lender (and Section 2.04 shall apply, mutatis mutandis, to the
------- --------
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse the
Issuing Bank, then to such Lenders and the Issuing Bank as their interests may
appear. Any payment made by a Revolving Lender pursuant to this paragraph to
reimburse the Issuing Bank for any LC Disbursement shall not constitute a Loan
and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(ii) If the Issuing Bank shall make any LC Disbursement in respect of
any Letter of Credit and such LC Disbursement is greater than or equal to
$2,000,000, the Borrower shall be deemed to have made an ABR Revolving Borrowing
in the equivalent amount on the date of such LC Disbursement. The Administrative
Agent shall notify each Revolving Lender of any ABR Revolving Borrowing that is
deemed to have been made pursuant to this paragraph. Such notice shall include
the principal amount in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the ABR Revolving
Borrowing that is deemed to have been made, in the manner provided in Section
2.04, and the Administrative Agent shall promptly pay to the Issuing Bank the
amounts so received by it from the Revolving Lenders.
<PAGE>
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
---------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor the Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
<PAGE>
(g) Disbursement Procedures. The Issuing Bank shall, promptly
------------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
-----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
--------
pursuant to paragraph (e) of this Section, then Section 2.11(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
--------------------------------
replaced at any time by written agreement among the Borrower, the Administrative
Agent, the replaced Issuing Bank and the successor Issuing Bank. The
Administrative Agent shall notify the Lenders of any such replacement of the
Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.10(d). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
"Issuing Bank" shall be deemed to refer to such successor or to any previous
Issuing Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank hereunder, the
replaced Issuing Bank shall remain a party hereto and shall continue to have all
the rights and obligations of an Issuing Bank under this Agreement with respect
to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
-----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the
<PAGE>
Required Lenders (or, if the maturity of the Loans has been accelerated,
Revolving Lenders with LC Exposure representing greater than 50% of the total LC
Exposure) demanding the deposit of cash collateral pursuant to this paragraph,
the Borrower shall deposit in an account with the Administrative Agent, in the
name of the Administrative Agent and for the benefit of the Lenders, an amount
in cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash collateral
--------
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or other notice of any kind, upon the occurrence
of any Event of Default with respect to the Borrower described in clause (h) or
(i) of Article VII. The Borrower also shall deposit cash collateral pursuant to
this paragraph as and to the extent required by Section 2.07(b). Each such
deposit shall be held by the Administrative Agent as collateral for the payment
and performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Bank for LC Disbursements for which it has not been reimbursed and, to the
extent not so applied, shall be held for the satisfaction of the reimbursement
obligations of the Borrower for the LC Exposure at such time or, if the maturity
of the Loans has been accelerated (but subject to the consent of Revolving
Lenders with LC Exposure representing greater than 50% of the total LC
Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived. If
the Borrower is required to provide an amount of cash collateral hereunder
pursuant to Section 2.07(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower as and to the extent that, after
giving effect to such return, the Borrower would remain in compliance with
Section 2.07(b) and no Default shall have occurred and be continuing.
SECTION 2.19. Incremental Term Loans. On or prior to February 2,
-----------------------
2002, the Borrower may, by notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Lenders), request the addition of a new
tranche of term loans (the "Incremental Term Loans"); provided, however, that
---------------------- -------
both at the time of any such request and after giving
<PAGE>
effect to any such Incremental Term Loans, no Default shall exist and the
Borrower shall be in Pro Forma Compliance with each financial covenant. The
Incremental Term Loans shall (i) be in an aggregate principal amount not in
excess of $150,000,000, (ii) rank pari passu in right of payment and of security
---- -----
with the other Loans, (iii) have an average weighted life equal to or longer
than the Tranche A Term Loans, Tranche C Term Loans and the Tranche D Term
Loans, (iv) be drawn on or prior to February 2, 2002, (v) have such pricing as
may be agreed by the Borrower and the Persons providing such Incremental Term
Loans and (vi) otherwise be treated hereunder no more favorably than the Tranche
A Term Loans, Tranche C Term Loans and the Tranche D Term Loans. Such notice
shall set forth the requested amount of Incremental Term Loans, and shall offer
each Lender the opportunity to offer a commitment (the "Incremental Commitment")
to provide Incremental Term Loans by giving written notice of such offered
----------------------
commitment to the Administrative Agent and the Borrower within a time period
(the "Offer Period") to be specified in the Borrower's notice; provided,
--------
however, that no existing Lender will be obligated to subscribe for any portion
-------
of such commitments. In the event that, at the expiration of the Offer Period,
Lenders shall have provided commitments in an aggregate amount less than the
total amount of the Incremental Term Loans requested by the Borrower, the
Borrower shall have the right to arrange for one or more banks or other
financial institutions (any such bank or other financial institution being
called an "Additional Lender") to extend commitments to provide Incremental Term
-----------------
Loans in an aggregate amount equal to the unsubscribed amount; provided that
--------
each Additional Lender shall be subject to the approval of the Administrative
Agent (which approval shall not be unreasonably withheld); and provided further
-------- -------
that the Additional Lenders shall be offered the opportunity to provide the
Incremental Term Loans only on terms previously offered to the existing Lenders
pursuant to the immediately preceding sentence. Commitments in respect of
Incremental Term Loans shall become Commitments under this Agreement pursuant to
an Incremental Facility Amendment executed by each of the Borrower, each Lender
agreeing to provide such Commitment, if any, each Additional Lender, if any, and
the Administrative Agent. The effectiveness of any Incremental Facility
Amendment shall be subject to the satisfaction on the date thereof and, if
different, on the date on which the Incremental Term Loans are made, of each of
the conditions set forth in Section 4.02.
SECTION 2.20. Swingline Loans. (a) Subject to the terms and
----------------
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower from time to time during the Revolving Availability Period, in
an aggregate principal amount at any time outstanding that will not result in
(i) the aggregate principal amount of outstanding Swingline Loans exceeding
$10,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total
Revolving Commitments. Within the foregoing limits and subject to the terms and
<PAGE>
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent and the Swingline Lender of such request by telephone
(confirmed by telecopy), not later than 12:00 noon, New York City time, on the
day of a proposed Swingline Loan. Each such notice shall be irrevocable and
shall specify the requested date (which shall be a Business Day), the amount of
the requested Swingline Loan, the proposed interest rate (or basis of
determining the interest rate) with respect to such Swingline Loan (which may
not exceed the interest rate then applicable to Revolving ABR Loans), and
whether such Swingline Loan is to be repayable on demand of the Swingline Lender
or on an agreed date (in which case the Borrower shall specify a proposed date
of repayment). The Swingline Lender shall, after confirming with the
Administrative Agent that there are sufficient unused Revolving Commitments to
permit such Swingline Loan, make such Swingline Loan available to the Borrower
by means of a credit to the general deposit account of the Borrower with the
Swingline Lender by 2:00 p.m., New York City time, on the requested date of such
Swingline Loan.
(c) The Borrower may, with the consent of the Administrative Agent
(which consent shall not be unreasonably withheld) and the acting Swingline
Lender, replace the acting Swingline Lender with a successor Swingline Lender;
provided, that (i) the successor Swingline Lender shall be a Lender hereunder,
--------
(ii) the successor Swingline Lender shall be engaged as the primary cash
management bank for the Borrower and (iii) prior to the effectiveness of the
appointment of the successor Swingline Lender, all Swingline Loans payable to
the retiring Swingline Lender shall be repaid.
ARTICLE III
Representations and Warranties
------------------------------
Holdings and the Borrower represent and warrant to the Lenders that:
SECTION 3.01. Organization; Powers. Each of Holdings, the Borrower
---------------------
and its Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and to own and operate
its Systems in the Service Regions, and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required.
<PAGE>
SECTION 3.02. Authorization; Enforceability. The Transactions
------------------------------
entered into or to be entered into by each Loan Party are within such Loan
Party's corporate or other organizational powers and have been duly authorized
by all necessary action. This Agreement has been duly executed and delivered by
the Borrower and constitutes, and each other Loan Document to which any Loan
Party is to be a party, when executed and delivered by such Loan Party,
constituted or will constitute, a legal, valid and binding obligation of the
Borrower or such Loan Party (as the case may be), enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
-------------------------------------
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect and except filings with the
Securities and Exchange Commission in connection with the 11% Notes, filings
required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the
rules thereunder in connection with the Tower Sale, and filings necessary to
perfect Liens created under the Loan Documents, (b) have not and will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of any Loan Party or any order of any Governmental
Authority, (c) have not and will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Loan Party or any of
their assets, or give rise to a right thereunder to require any payment to be
made by any Loan Party and (d) have not and will not result in the creation or
imposition of any Lien on any asset of any Loan Party, except Liens created
under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change.
------------------------------------------------
<PAGE>
(a) Holdings and the Borrower have heretofore furnished to the
Lenders projected consolidated balance sheets as of December 31, 2000, prepared
giving effect to the Transactions as if the Transactions had occurred on such
date. Such pro forma consolidated balance sheets (i) have been prepared in good
faith based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are
believed by the Borrower to be reasonable), (ii) are based on the best
information available to the Borrower after due inquiry, (iii) accurately
reflect all adjustments necessary to give effect to the Transactions and (iv)
present fairly, in all material respects, the pro forma financial position of
the Borrower and its consolidated Subsidiaries as of such date as if the
Transactions had occurred on such date.
(b) Except as disclosed in the financial statements referred to above
or the notes thereto, in the Borrower's quarterly report filed with the
Securities and Exchange Commission on Form 10-Q for the quarter ended June 30,
2000, or in the Information Memorandum and except for the Disclosed Matters,
after giving effect to the Transactions, none of Holdings, the Borrower or its
Subsidiaries has, as of the Second Amendment and Restatement Effective Date, any
material contingent liabilities, unusual long-term commitments or unrealized
losses.
(c) Since December 31, 1999, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
-----------
Subsidiaries has, or with respect to assets to be purchased from a Qualified
Vendor will have upon execution of the Qualified Vendor Agreement and delivery
of the assets contemplated thereby, good title to, or valid leasehold interests
in, all real and personal property material to its business (including its
Mortgaged Properties), except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, trade names, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
<PAGE>
(c) Schedule 3.05 sets forth the address of each real property that
is owned or leased by the Borrower or any of its Subsidiaries as of the
Effective Date after giving effect to the Transactions (other than the Tower
Sale and the Additional Capital Contributions).
(d) As of the Effective Date, neither the Borrower nor any of its
Subsidiaries has received notice of, or has knowledge of, any pending or
contemplated condemnation proceeding affecting any Mortgaged Property or any
sale or disposition thereof in lieu of condemnation. Neither any Mortgaged
Property nor any interest therein is subject to any right of first refusal,
option or other contractual right to purchase such Mortgaged Property or
interest therein.
SECTION 3.06. Litigation and Environmental Matters. (a) There are
------------------------------------
no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting Holdings, the Borrower or any of its Subsidiaries (i) as to
which there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of Holdings, the Borrower
or any Subsidiary (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each Loan Party
-----------------------------------
is in compliance with (a) all laws, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to so
comply would not have a Material Adverse Effect and (b) the terms of the PCS
Documents and all other indentures, agreements and instruments binding upon it
or its property, except, in the case of agreements, indentures and instruments
other than the PCS Documents, where the failure to do so, individually or in the
aggregate, could
<PAGE>
not reasonably be expected to result in a Material Adverse Effect. No Default
has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. No Loan Party
-------------------------------------
is (a) an "investment company" as defined in, or subject to regulation under,
the Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each Loan Party has filed or caused to be filed
-----
all Tax returns which, to the knowledge of the Borrower are required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books reserves in accordance with GAAP or (b)
to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
-----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $1,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $1,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Borrower has disclosed to the Lenders
----------
all agreements, instruments and corporate or other restrictions to which any
Loan Party is subject, and all other matters known to any of them, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither the Information Memorandum nor any of the other
reports, financial statements, certificates or other information furnished by or
on behalf of any Loan Party to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement or any other Loan Document or
delivered hereunder or thereunder (as modified or supplemented by other
information so furnished) contained any material misstatement of fact or omitted
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading as of
<PAGE>
the date thereof; provided that, with respect to projected financial
--------
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries; Parents. (a) Schedule 3.12 sets forth
---------------------
the name of, and the ownership interest of the Borrower in, each Subsidiary of
the Borrower and identifies each Subsidiary that is a Subsidiary Loan Party, in
each case as of the Effective Date. Each of the License Subsidiary and the Real
Property Subsidiary is a Wholly Owned Subsidiary, and all the Capital Stock of
each such Person is directly or indirectly owned by the Borrower free and clear
of any Lien (other than Liens created by the Security Documents).
(b) As of the Effective Date, the Capital Stock of Holdings will be
owned as set forth on Schedule 3.12. As of the date hereof, to the best of the
Borrower's knowledge, AW is a Wholly Owned Subsidiary of AT&T Corp.
(c) As of the date hereof, there is not, and as of the Second
Amendment and Restatement Effective Date, there will not be, any issued or
outstanding Capital Stock or other interest of or in the Borrower or any of its
Subsidiaries other than as described in subsections 3.12(a) and (b). Except to
the extent resulting from a transaction after the Second Amendment and
Restatement Effective Date in compliance with the terms hereof, all outstanding
Capital Stock of each Subsidiary of the Borrower is owned, directly or
indirectly, by the Borrower or another Subsidiary, and all outstanding Capital
Stock of the Borrower, is owned by Holdings, in each case free and clear of all
Liens whatsoever (other than Liens created by the Security Documents).
(d) All Licenses which are directly or indirectly held by the
Borrower or any of its Subsidiaries are owned, beneficially and of record by the
License Subsidiary, free and clear of all Liens (other than Liens under the
Security Documents or imposed by the Communications Act).
(e) All Real Property Assets and Real Property-Related Equipment
(other than Excluded Real Property Assets, Excluded Real Property-Related
Equipment, Secured Real Property Assets and Secured Real Property-Related
Equipment) which are directly or indirectly owned by the Borrower or any other
Loan Party are owned, beneficially and of record by the Real Property
Subsidiary, free and clear of all Liens (other than Liens under the Security
Documents or Permitted Encumbrances). At least 90% of the value of (A) the Real
Property Assets and (B) the Real Property-Related Equipment of the Borrower and
its Subsidiaries (excluding Secured Real Property Assets and Secured Real
Property-Related Equipment) are owned, beneficially and of
<PAGE>
record, free and clear of all Liens (other than the Liens under the Security
Documents) by the Real Property Subsidiary.
SECTION 3.13. Absence of Non-Permitted Obligations. None of the
------------------------------------
Special Purpose Subsidiaries has any obligations or liabilities other than (a)
under the Guarantee Agreement and the Security Agreement, (b) in the case of the
Real Property Subsidiary, under any lease of real property or equipment which it
has entered into in the ordinary course of business and for taxes incurred in
the ordinary course of business which are incident to being the owner or lessee
of real property and equipment, (c) under the Special Purpose Subsidiary Funding
Agreements, (d) franchise and corporate taxes incurred in the ordinary course in
order for it to continue to maintain its existence and (e) Guarantees of the 11%
Notes and of the Subordinated Debt permitted by Section 6.01 (a)(ii) and (iii)
hereof.
SECTION 3.14. Licenses. (i) The Borrower and its Subsidiaries have
--------
the full use and benefit of all Licenses necessary to operate a System in the
Service Regions and each other area in which the Borrower or any Subsidiary
conducts a broadband personal communications services, 700 MHz Guard Band
Services or cellular services business, (ii) such Licenses have been duly issued
by the FCC, are held by the License Subsidiary or, in the case of Licenses
acquired in the PCS C Block Auction or any similar auction by the FCC of
spectrum, a Bidding Entity and are in full force and effect and (iii) the
Borrower and its Subsidiaries are in compliance in all material respects with
all of the provisions of each such License.
SECTION 3.15. No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation (other than, in the case of clause (b) below, any
restriction under subsection 6.08(a)) applicable to Holdings, the Borrower or
any Subsidiary could reasonably be expected to (a) have a Material Adverse
Effect or (b) limit the ability of any Subsidiary to pay dividends or to make
distributions or advances to the Borrower or any other Subsidiary.
SECTION 3.16. [Intentionally Omitted].
SECTION 3.17. Flood Insurance. To the extent reasonably 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, such flood insurance in such total
amount as the Administrative Agent has from time to time reasonably required.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a description of
---------
all insurance maintained by or on behalf of the Borrower and its Subsidiaries as
of the Effective Date. As of
<PAGE>
the Effective Date, all premiums in respect of such insurance have been paid.
SECTION 3.19. Labor Matters. As of the Effective Date, there are no
-------------
strikes, lockouts or slowdowns against the Borrower or any Subsidiary pending
or, to the knowledge of the Borrower, threatened. With such exceptions as could
not reasonably be expected to result in a Material Adverse Effect, (i) the hours
worked by and payments made to employees of the Borrower and the Subsidiaries
have not been in violation of the Fair Labor Standards Act or any other
applicable Federal, state, local or foreign law dealing with such matters and
(ii) all payments due from the Borrower or any Subsidiary, or for which any
claim may be made against the Borrower or any Subsidiary, on account of wages
and employee health and welfare insurance and other benefits, have been paid or
accrued as a liability on the books of the Borrower or such Subsidiary.
SECTION 3.20. Solvency. Immediately after the consummation of the
--------
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.21. FCC Compliance. (a) The Borrower and each Subsidiary
--------------
are in compliance in all material respects with the Communications Act.
(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
modification, non-renewal, impairment, restriction or termination of, or order
of
<PAGE>
forfeiture with respect to, any License in any respect which 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 the
License Subsidiary under any License held by the Borrower or the License
Subsidiary in any respect which could reasonably be expected to have a Material
Adverse Effect.
(d) The Borrower and the License Subsidiary 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.
(e) The Borrower has no reason to believe that each License of the
Borrower or any Subsidiary will not be renewed in the ordinary course.
SECTION 3.22. Security Documents. (a) The Pledge Agreement is
------------------
effective to create in favor of the Administrative Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable security interest
in the Collateral (as defined in the Pledge Agreement) and, when the Collateral
is delivered to the Administrative Agent, the Pledge Agreement shall create a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgors thereunder in such Collateral, in each case
prior and superior in right to any other Person.
(b) The Security Agreement is effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are filed
in the offices specified on Schedule 6 to the Perfection Certificate, as updated
by the Borrower from time to time in accordance with Section 5.03, the Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the grantors thereunder in such Collateral
(other than the Intellectual Property, as defined in the Security Agreement), in
each case prior and superior in right to any other Person, other than with
respect to Liens expressly permitted by Section 6.02. Following an Event of
Default, the Borrower's rights under the PCS Documents (other than the
Stockholders Agreement) will be enforceable by the Lenders; provided, however,
-------- -------
that the Administrative Agent shall not assign the Network Licensing Agreement
to a third party without first obtaining AW's consent.
(c) When the Security Agreement is filed in the United States Patent
and Trademark Office and the United States Copyright Office, and, with respect
to Collateral in which a security interest cannot be perfected by such filings,
upon the
<PAGE>
filing of the financing statements referred to in paragraph (b) above, the
Security Agreement and such financing statements shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the grantors thereunder in the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other Person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the grantors after the date hereof).
(d) The Mortgages are effective to create in favor of the
Administrative Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all of the Borrower's right, title and interest in
and to the Mortgaged Property thereunder and the proceeds thereof, and when the
Mortgages are filed in the offices specified on Schedule 3.22, the Mortgages
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the Borrower in such Mortgaged Property and the proceeds
thereof, in each case prior and superior in right to any other Person, other
than with respect to the rights of Persons pursuant to Liens expressly permitted
by Section 6.02.
SECTION 3.23. Copyrights, Trademarks, etc. The Borrower and the
---------------------------
Subsidiaries own, or are licensed to use, all copyrights, trademarks, trade
names, patents, technology, know-how and processes, service marks and rights
with respect to the foregoing that are (a) used in or necessary for the conduct
of their respective businesses as currently conducted and (b) material to the
business, assets, operations, properties, prospects or condition (financial or
otherwise) of the Borrower and the Subsidiaries taken as a whole. The use of
such copyrights, trademarks, trade names, patents, technology, know-how and
processes, service marks and rights with respect to the foregoing by the
Borrower and the Subsidiaries does not infringe in any material respect on the
rights of any Person.
SECTION 3.24. Federal Regulations. No part of the proceeds of any
-------------------
Loans will be used in any manner which would result in a violation of Regulation
U or X of the Board 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.
SECTION 3.25. Assets and Business of Holdings.
-------------------------------
(a) As of the date hereof Holdings has, and as of the Effective Date
Holdings will have, no assets other than (i) the Capital Stock of the Borrower,
(ii) contract rights under the Securities Purchase Agreement and (iii) rights
under the Stockholders Agreement.
<PAGE>
(b) Holdings is engaged in no business other than the holding of such
assets and, to the extent permitted hereunder, Capital Stock of Unrestricted
Subsidiaries and the incurrence of debt permitted under Section 6.01(a).
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
--------------
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion or opinions (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of (i) Latham & Watkins and Kleinbard, Bell &
Brecker LLP, counsel for the Borrower, which when taken together will be
substantially in the form of Exhibit B-1 and (ii) Latham & Watkins, special
counsel to the Borrower with respect to FCC matters, substantially in the
form of Exhibit B-2 and, in the case of each such opinion required by this
paragraph, covering such other matters relating to the Loan Parties, the
Loan Documents or the Transactions as the Required Lenders shall reasonably
request. The Borrower hereby requests such counsel to deliver such
opinions.
(c) The Administrative Agent shall have received (i) a certificate of
the Secretary or Assistant Secretary of the Borrower and each Subsidiary
Loan Party dated the Effective Date and certifying (A) that attached
thereto is a true and complete copy of the by-laws, operating agreement or
partnership agreement of such Loan Party as in effect on the Effective Date
and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of resolutions duly adopted by the board of directors (or
equivalent governing body), members or partners of the Borrower and each
Subsidiary Loan Party authorizing the execution, delivery and performance
of the Loan Documents
<PAGE>
to which such Person is a party and, in the case of the Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect, and (C) as to the incumbency and
specimen signature of each officer or partner of the Borrower (or its general
partner) and any Subsidiary Loan Party executing any Loan Document on behalf of
such Loan Party; (ii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (i) above; and (iii) such other documents as the Lenders
or Cravath, Swaine & Moore, counsel for the Administrative Agent, may reasonably
request.
(d) The Administrative Agent shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by any Loan Party hereunder or under any other Loan
Document.
(f) Special Purpose Subsidiaries. The Borrower shall have transferred to
----------------------------
a Real Property Subsidiary all Real Property Assets and Real Property-Related
Equipment other than (A) Real Property Assets constituting rights under leases
that as of the date hereof prohibit such transfer (without regard to any such
prohibition which contains exceptions if the obligations under the applicable
lease were to be assumed by the Borrower or its Subsidiaries or if the Borrower
or its Subsidiaries were to take other actions which are reasonably within their
power to take ("Restricted Real Property Assets")) and (B) equipment which
constitutes a fixture to any Restricted Real Property Asset ("Restricted Real
Property-Related Equipment") but in any event the Borrower shall have so
transferred assets constituting at least 90% of the value of all Real Property
Assets and Real Property-Related Equipment of the Borrower and its Subsidiaries
(excluding Secured Real Property Assets and Secured Real Property-Related
Equipment) as of the date hereof and provided evidence reasonably satisfactory
to the Administrative Agent of the transfers described above and each of the
Real Property Subsidiary and the License Subsidiary shall have entered into
Special Purpose Subsidiary Funding Agreements with the Borrower.
(g) The Pledge Agreement shall have been duly executed by the parties
thereto, shall have been delivered
<PAGE>
to the Administrative Agent and shall be in full force and effect, and all the
outstanding (i) intercompany Indebtedness owed to any Loan Party by the Borrower
or any Subsidiary and (ii) equity interests that are owned by the Borrower or
any Subsidiary Loan Party (in each case as of the Effective Date after giving
effect to the Transactions) (A) shall have been duly and validly pledged
thereunder to the Administrative Agent for the ratable benefit of the Secured
Parties, and (B) certificates representing such equity interests (except that
such certificates representing equity interests in a Foreign Subsidiary may be
limited to 65% of the outstanding shares of such partnership interests or equity
interests in such Foreign Subsidiary) and promissory notes evidencing such
intercompany Indebtedness shall be in the actual possession of the
Administrative Agent, accompanied by stock powers or other instruments of
transfer, endorsed in blank, with respect to such certificates and such
promissory notes.
(h) The Security Agreement shall have been duly executed by the parties
thereto, shall have been delivered to the Administrative Agent and shall be in
full force and effect, and all documents and instruments, including Uniform
Commercial Code financing statements, required by law or reasonably requested by
the Administrative Agent to be filed, registered or recorded to create or
perfect the Liens intended to be created under the Security Agreement shall have
been delivered to the Administrative Agent.
(i) The Administrative Agent shall have received a completed Perfection
Certificate (giving effect to the Transactions) dated the Effective Date and
signed by an executive officer or Financial Officer of the Borrower, together
with all attachments contemplated thereby, including the results of a search of
the Uniform Commercial Code (or equivalent) filings made with respect to the
Borrower and the Subsidiary Loan Parties in the jurisdictions contemplated by
the Perfection Certificate and copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by Section 6.02 or have been released.
(j) The Guarantee Agreement shall have been duly executed by the
Subsidiary Loan Parties and the Administrative Agent, shall have been delivered
to the Administrative Agent and shall be in full force and effect.
(k) The Indemnity, Subrogation and Contribution Agreement shall have been
duly executed by the parties
<PAGE>
thereto, shall have been delivered to the Administrative Agent and shall be in
full force and effect.
(l) The Administrative Agent shall have received evidence satisfactory to
it that the insurance required by Section 5.07 is in effect.
(m) The Administrative Agent shall have received from the Borrower a
photocopy, certified to be true and complete, of its Licenses for the BTAs
listed in Schedule 3.14 and such Licenses shall be owned by the Borrower free
and clear of all Liens other than liens imposed by the Communications Act.
(n) The Administrative Agent shall have received from the Borrower
conformed copies, certified and true and complete, of (i) the Securities
Purchase Agreement, (ii) the Network License Agreement, (iii) the Stockholders
Agreement, (iv) the Roaming Agreement, (v) the Resale Agreement (unexecuted) and
(vi) the Special Purpose Subsidiary Funding Agreements. Each of the agreements
referred to in the previous sentence (other than the Resale Agreement) shall
have been duly executed and delivered on behalf of each party thereto, shall
have been duly authorized thereby, and shall constitute a legal, valid and
binding obligation of such party, enforceable against such party 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 the Borrower shall have delivered to the
Lenders a certificate of a Responsible Officer as to the accuracy of the
foregoing.
(o) To the extent not expressly contemplated in the final form of
Securities Purchase Agreement or the final form of Restated Certificate of
Incorporation delivered to the Administrative Agent prior to October 8, 1997,
the Administrative Agent shall be satisfied with (i) the corporate and capital
structure of the Borrower and its subsidiaries, (ii) the contributions to the
Borrower's equity and (iii) all legal, tax and accounting matters related to the
formation, capitalization and operations of the Borrower.
(p) The Borrower shall have entered into or, with respect to the Qualified
Vendor Agreement, will enter into by April 15, 1998, (i) supply contracts with
vendors for the build out of the Network and the acquisition of related
equipment, and, to the extent material, such contracts shall be reasonably
satisfactory to the Lenders and (ii) such other agreements with third parties as
may be
<PAGE>
reasonably necessary to the conduct of its proposed operations in accordance
with its business plan.
(q) The Borrower shall have received all scheduled cash capital
contributions set forth on Schedule I to the Securities Purchase Agreement,
including contributions of $45,000,000 in cash on or prior to the Effective Date
as set forth therein.
(r) Each of Holdings, the Borrower, AW and the other parties thereto shall
have executed and delivered to the Administrative Agent consents to assignment
("Consents to Assignment") to the Administrative Agent for the benefit of the
Secured Parties, in form and substance satisfactory to the Administrative Agent,
with respect to the Securities Purchase Agreement, the Network License Agreement
and such of the other PCS Documents as are requested by the Administrative
Agent; provided, however, that the Consent to Assignment with respect to AW
-------- -------
shall be set forth in the Network License Agreement and, with respect to the
Network License Agreement, such Consent to Assignment will not permit the
Administrative Agent to assign the Network License Agreement to any Person other
than the Lenders without first obtaining AW's consent.
(s) The terms and conditions of any Subordinated Debt, if any, and the
provisions of the Subordinated Debt Documents, if any, shall be satisfactory to
the Lenders and the Administrative Agent shall have received copies of any
Subordinated Debt Documents, if any, certified by a Responsible Officer as
complete and correct.
(t) All consents and approvals required to be obtained from any
Governmental Authority or other Person in connection with the Transactions shall
have been obtained, and all applicable waiting periods and appeal periods shall
have expired or, with respect to the consent of the FCC to the License Transfer
(as defined in the Securities Purchase Agreement) a Final Order (as defined in
the Securities Purchase Agreement) shall have been obtained, in each case
without the imposition of any burdensome conditions and there shall be no
governmental or judicial action, actual or threatened, that could reasonably be
expected to restrain, prevent or impose burdensome conditions on the
Transactions. To the extent contemplated by the terms of this Agreement and the
Securities Purchase Agreement, the Transactions shall have been, or
substantially simultaneously with the initial funding of Loans on the Effective
Date shall be, consummated in accordance with the PCS Documents and applicable
law, without any amendment to or waiver of any material terms or conditions of
the PCS Documents not approved by the Required Lenders. The Administrative Agent
shall have received copies of the PCS
<PAGE>
Documents and all certificates, opinions and other documents delivered
thereunder, certified by a Responsible Officer as complete and correct and
the PCS Documents shall contain no material changes adverse to the
interests of the Lenders compared to the final form of such documents
delivered to the Administrative Agent prior to October 8, 1997.
(u) The Lenders shall have received pro forma consolidated balance
sheets of the Borrower and Holdings as of October 31, 1997, reflecting all
pro forma adjustments as if the Transactions had been consummated on such
date, and such pro forma consolidated balance sheets shall be consistent in
all material respects with the projections and other information previously
provided to the Lenders. After giving effect to the Transactions, neither
Holdings, the Borrower nor any of their Subsidiaries shall have outstanding
any shares of preferred stock or any Indebtedness, other than (i)
Indebtedness incurred under the Loan Documents, (ii) the Subordinated Debt
and (iii) preferred stock issued to AW and the other equity investors
listed on Schedules I and II to the Securities Purchase Agreement pursuant
to the terms of the Securities Purchase Agreement.
(v) The Administrative Agent shall have received from the Borrower
(i) the financial statements referred to in Section 3.04 and (ii) a
certificate dated the Effective Date and duly executed by a Responsible
Officer of the Borrower certifying that attached thereto is the annual
budget of the Borrower for the fiscal year ending December 31, 1998 as well
as a 10-year business plan of the Borrower satisfactory to the
Administrative Agent with quarterly projections for at least the two-year
period following the Effective Date.
(w) There shall have been no material adverse change in the business,
assets, results of operations, properties, prospects or financial condition
of the Borrower and the Subsidiaries, taken as a whole, or of Holdings
since October 31, 1997.
(x) Holdings and the Borrower shall be in Pro Forma Compliance.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
-----------------
make a Loan on the occasion of any Borrowing, and of the Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
<PAGE>
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects on
and as of the date of such Borrowing or the date of issuance, extension or
renewal of such Letter of Credit, as applicable, except with respect to
representations and warranties expressly made only as of an earlier date,
which shall be true in all material respects as of such earlier date.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, extension or renewal of a Letter of Credit, as
applicable, no Default shall have occurred and be continuing and the
Borrower shall be in Pro Forma Compliance.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of Holdings and the
Borrower covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. Each of
------------------------------------------
Holdings and the Borrower will furnish to the Administrative Agent and each
Lender:
(a) within 90 days after the end of each fiscal year its audited
consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by PriceWaterhouseCoopers L.L.P. or other
independent public accountants of recognized national standing (without a
"going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower
and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied;
<PAGE>
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated balance sheet and related
statements of operations, stockholders' equity and cash flows as of the end of
and for such fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the corresponding
period or periods of (or, in the case of the balance sheet, as of the end of)
the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results
of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a certificate of a Financial Officer of the Borrower (i)
certifying as to whether, to his knowledge after due inquiry, a Default has
occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections 6.08 and
6.12 and (iii) stating whether any change in GAAP or in the application thereof
has occurred since the date of the Borrower's audited financial statements
referred to in Section 3.04 and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such financial
statements stating whether they obtained knowledge during the course of their
examination of such financial statements of any Default (which certificate may
be limited to the extent required by accounting rules or guidelines);
(e) no more than 45 days after the commencement of each fiscal year, a
detailed consolidated budget for such fiscal year, broken down by fiscal
quarters (including (i) a projected summary statement of operations, (ii) a
projected statement of capital expenditures and (iii) a projected statement of
Indebtedness, as of the end and for each such fiscal quarter) and, promptly when
available, any significant revisions of such budget;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Holdings, the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
<PAGE>
functions of said Commission, or with any national securities exchange, as the
case may be;
(g) on an annual basis, a copy of the projections as to the performance of
Holdings (excluding any Unrestricted Subsidiaries) and the Borrower, presented
in a manner consistent with the projections in the Information Memorandum for
the period from the date of the most recent balance sheet included in the
financial statements delivered pursuant to (a) above through the last day of the
fiscal year in which the Tranche B Maturity Date occurs, such projections to be
accompanied by a certificate of a Responsible Officer of the Borrower to the
effect that such projections have been prepared using assumptions believed in
good faith by the management of the Borrower to be reasonable as of the date of
such certificate (which shall be subsequent to the date of the most recent
balance sheet included in such financial statements);
(h) within 30 days after the end of each calendar month ending on or prior
to December 31, 2000, a certificate of a Responsible Officer setting forth (A)
the aggregate number of Subscribers at the end of the calendar month preceding
such calendar month and (B) the aggregate number of Subscribers at the end of
such calendar month;
(i) within 30 days after the end of each fiscal quarter, a certificate of
a Responsible Officer setting forth (A) the aggregate number of Subscribers
whose service terminated during such fiscal quarter, (B) the aggregate number of
Subscribers added during such fiscal quarter and (C) the revenue and system
build information listed on Schedule 5.01(i);
(j) within ten Business Days after the same are sent, a copy of any
financial statement, report or notice which Holdings, the Borrower or any
Subsidiary sends to any Person under or pursuant to or in connection with the
Securities Purchase Agreement, the Network License Agreement, the Stockholders
Agreement, the Roaming Agreement, the Resale Agreement, or any other PCS
Document, the Tower Sale Asset Purchase Agreement or the commitment letters or
definitive documentation for the Additional Capital Contributions, 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
Holdings, the Borrower or any Subsidiary, 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;
<PAGE>
(k) concurrently with any delivery of financial statements under
clause (a) or (b) above, a balance sheet and related statements of
operations, stockholders' equity and cash flows for each Unrestricted
Subsidiary for the applicable period (each of which may be unaudited); and
(l) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of
Holdings, the Borrower or any Subsidiary, or compliance with the terms of
any Loan Document, or such consolidating financial statements, or such
financial statements showing the results of operations of any Unrestricted
Subsidiary, as the Administrative Agent or any Lender may reasonably
request.
SECTION 5.02. Notices of Material Events. Upon a Responsible Officer
--------------------------
having knowledge of the following, the Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or affecting
Holdings, the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material Adverse
Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Borrower
--------------------------------
will furnish to the Administrative Agent prompt written notice of any change (i)
in any Loan Party's legal name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any
<PAGE>
office or facility at which Collateral owned by it is located (including the
establishment of any such new office or facility), (iii) in any Loan Party's
identity or legal structure or (iv) in any Loan Party's Federal Taxpayer
Identification Number. The Borrower agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the Uniform Commercial Code or otherwise that are required in order for the
Administrative Agent to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (a) of Section
5.01, the Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer of the Borrower (i) setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming that there has
been no change in such information since the date of the Perfection Certificate
delivered on the Effective Date or the date of the most recent certificate
delivered pursuant to this Section and (ii) certifying that all Uniform
Commercial Code financing statements (including fixture filings, as applicable)
or other appropriate filings, recordings or registrations, including all
refilings, rerecordings and reregistrations, containing a description of the
Collateral have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above
to the extent necessary to protect and perfect the security interests under the
Security Agreement for a period of not less than 18 months after the date of
such certificate (except as noted therein with respect to any continuation
statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. Holdings and the
------------------------------
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
--------
consolidation, liquidation or dissolution permitted under Section 6.04.
SECTION 5.05. Payment of Obligations. Holdings and the Borrower
----------------------
will, and will cause each of its Subsidiaries to, pay its material Indebtedness
and other obligations, including Tax liabilities, before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or
such Subsidiary has set aside on its books reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such
<PAGE>
obligation and (d) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. Holdings and the Borrower
-------------------------
will, and will cause each of its Subsidiaries to, maintain (i) all property
necessary to the conduct of its business in good working order and condition
with such exceptions as would not have a Material Adverse Effect and (ii) its
accounting, software and billing systems and controls at a level consistent with
the standards of other reputable wireless services providers and reasonably
required in connection with the Borrower's business.
SECTION 5.07. Insurance. Holdings and the Borrower will, and will
---------
cause each of its Subsidiaries to, 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 by
companies engaged in the same or a similar business in the same or similar
locations, and furnish to the Administrative Agent, upon written request, full
information as to the insurance carried.
SECTION 5.08. Casualty and Condemnation. (a) Holdings and the
-------------------------
Borrower will furnish to the Administrative Agent and the Lenders prompt written
notice of any casualty or other insured damage to any material portion of any
Collateral or the commencement of any action or proceeding for the taking of any
material portion of the Collateral under power of eminent domain or by
condemnation or similar proceeding.
(b) If any event described in paragraph (a) of this Section results
in Net Proceeds (whether in the form of insurance proceeds, condemnation award
or otherwise), the Administrative Agent is authorized to collect such Net
Proceeds and, if received by Holdings, the Borrower or any Subsidiary, such Net
Proceeds shall be paid over to the Administrative Agent; provided that (i) if
--------
the aggregate Net Proceeds in respect of such event (other than proceeds of
business income insurance) are less than $3,000,000, such Net Proceeds shall be
paid over to the Borrower unless a Default has occurred and is continuing, and
(ii) all proceeds of business income insurance shall be paid over to the
Borrower unless a Default has occurred and is continuing. All such Net Proceeds
retained by or paid over to the Administrative Agent shall be held by the
Administrative Agent and released from time to time to pay the costs of
repairing, restoring or replacing the affected property in accordance with the
terms of the applicable Security Document, subject to the provisions of the
applicable Security Document regarding application of such Net Proceeds during a
Default.
<PAGE>
(c) If any Net Proceeds retained by or paid over to the
Administrative Agent as provided above continue to be held by the Administrative
Agent on the date that is 270 days after the occurrence of the event resulting
in such Net Proceeds, then such Net Proceeds shall be applied to prepay
Borrowings as provided in Section 2.09(b).
SECTION 5.09. Books and Records; Inspection and Audit Rights.
----------------------------------------------
Holdings and the Borrower will, and will cause each of its Subsidiaries to, keep
proper books of record and account in which entries which are accurate and
complete in all material respects are made of all dealings and transactions in
relation to its business and activities. The Borrower will, and will cause each
of its Subsidiaries to, permit any representatives designated by the
Administrative Agent or any Lender, upon reasonable prior notice, to visit and
inspect its properties, to examine and make extracts from its books and records,
and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as reasonably
requested.
SECTION 5.10. Compliance with Laws. Holdings and the Borrower will,
--------------------
and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect and to
comply in all material respects with all of its material Contractual Obligations
(including obligations under any License).
SECTION 5.11. Use of Proceeds. The proceeds of the Loans, together
---------------
with the proceeds of the Initial Equity Contributions and the Subordinated Debt,
if any, will be used only to fund capital expenditures related to the
construction of the Network, the acquisition of Related Businesses (including
acquisitions permitted by Section 6.05(m)), working capital needs of the
Borrower, investments in Bidding Entities permitted by Section 6.05(i) and
subscriber acquisition costs. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations U and X.
SECTION 5.12. Additional Subsidiaries. If any additional Subsidiary
-----------------------
is formed or acquired after the Effective Date, the Borrower will notify the
Administrative Agent and the Lenders thereof and (a) if such Subsidiary is a
Subsidiary Loan Party, the Borrower will cause such Subsidiary to become a party
to the Pledge Agreement (if such Subsidiary owns capital stock or intercompany
Indebtedness), the Security Agreement, the Guarantee Agreement and the
Indemnity, Subrogation and Contribution Agreement as contemplated under each
agreement, within three Business Days after such Subsidiary is formed or
<PAGE>
acquired and promptly take such actions to create and perfect Liens on such
Subsidiary's assets to secure the Obligations as the Administrative Agent or the
Required Lenders shall reasonably request and (b) if any shares of capital stock
or Indebtedness of such Subsidiary are owned by or on behalf of any Loan Party,
the Borrower will cause such shares and promissory notes evidencing such
Indebtedness to be pledged pursuant to the Pledge Agreement within three
Business Days after such Subsidiary is formed or acquired (except that, if such
Subsidiary is a Foreign Subsidiary, shares of common stock of such Subsidiary to
be pledged pursuant to the Pledge Agreement may be limited to 65% of the
outstanding shares of common stock of such Subsidiary).
SECTION 5.13. Further Assurances. (a) Holdings and the Borrower
------------------
will, and will cause each Loan Party to, execute any and all further documents,
financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture
filings, mortgages, deeds of trust and other documents), which may be required
under any applicable law, or which the Administrative Agent or the Required
Lenders may reasonably request, to effectuate the transactions contemplated by
the Loan Documents or to grant, preserve, protect or perfect the Liens created
or intended to be created by the Security Documents or the validity or priority
of any such Lien, all at the expense of the Loan Parties. The Borrower also
agrees to provide to the Administrative Agent, from time to time upon request,
evidence reasonably satisfactory to the Administrative Agent as to the
perfection and priority of the Liens created or intended to be created by the
Security Documents (including opinions of local counsel in the jurisdictions in
which assets of any Loan Party are located).
(b) If any material assets (including any real property or
improvements thereto or any interest therein) are acquired by the Borrower or
any Loan Party (other than assets held by Holdings in or through an Unrestricted
Subsidiary) after the Effective Date (other than assets constituting Collateral
under the Security Documents that become subject to the Lien of the Security
Documents upon acquisition thereof), the Borrower will notify the Administrative
Agent and the Lenders thereof, and, if requested by the Administrative Agent or
the Required Lenders, the Borrower will cause such assets to be subjected to a
Lien securing the Obligations and will take, and cause the Loan Parties to take,
such actions as shall be necessary or reasonably requested by the Administrative
Agent to grant and perfect such Liens, including actions described in paragraph
(a) of this Section, all at the expense of the Borrower. In addition, if (i) any
License is acquired by the Borrower or any Subsidiary (other than a designated
License Subsidiary) the Borrower will promptly transfer or cause the transfer to
a designated License Subsidiary for such License, (ii) any Real
<PAGE>
Property Assets (other than Restricted Real Property Assets, Secured Real
Property Assets and Excluded Real Property Assets) or any Real Property-Related
Equipment (other than Restricted Real Property-Related Equipment, Secured Real
Property-Related Equipment and Excluded Real Property Equipment) is acquired by
the Borrower or any Subsidiary or with respect to the leasehold in 1100 Cassatt
Road, Berwyn, Pennsylvania, Triton Management Company Inc. ("Triton Management")
-----------------
(other than the Real Property Subsidiary) the Borrower will promptly transfer or
cause the transfer of such assets to the Real Property Subsidiary and (iii) any
fee interests in real property having at the time of acquisition thereof a
purchase price or fair market value greater than $1,000,000 (a "Mortgaged
---------
Property") are acquired by the Borrower or any Subsidiary after the date hereof
--------
(including Mortgaged Properties of any Person that becomes a Subsidiary or is
merged with or into or consolidated with the Borrower or any Subsidiary) the
Borrower will promptly create or cause to be created a first priority perfected
Mortgage in favor of the Administrative Agent for the benefit of the Secured
Parties on, and pay all recording taxes, title insurance costs, survey costs and
other costs in connection with such Mortgage.
SECTION 5.14. Interest Rate Protection. As promptly as practicable,
------------------------
and in any event within 90 days after the Effective Date, the Borrower will
enter into, and thereafter until the final maturity of all the Loans, will
maintain in effect, one or more interest rate protection agreements with one or
more Lenders on such terms as shall be reasonably satisfactory to the
Administrative Agent, the effect of which shall be to fix or limit the interest
cost to the Borrower with respect to at least 50% of the outstanding
Indebtedness (other than Deeply Subordinated Debt) of the Borrower at a maximum
rate reasonably acceptable to the Administrative Agent (it being understood that
outstanding Indebtedness of the Borrower that bears interest at a fixed rate,
including the 11% Notes and any Subordinated Debt issued pursuant to Section
6.01(a)(iii) hereof but excluding any Deeply Subordinated Debt shall be
considered Indebtedness fixed at a maximum rate reasonably acceptable to the
Administrative Agent.
SECTION 5.15. License Drop Down. As promptly as practicable, and in
-----------------
any event within 90 days after the Effective Date, the Borrower shall contribute
to the License Subsidiary all Licenses owned by the Borrower (including the
Licenses for the BTAs listed in Schedule 3.14) and the License Subsidiary shall
own such Licenses free and clear of all Liens (other than Liens imposed by the
Communications Act).
SECTION 5.16. Business of Holdings; Immediate Contributions to the
----------------------------------------------------
Borrower. (a) Holdings shall not engage in any business other than holding the
--------
Capital Stock of the Borrower and any Unrestricted Subsidiary and issuing
Indebtedness permitted by Section 6.01.
<PAGE>
(b) Holdings shall cause the management, business and affairs of
each of Holdings, the Subsidiaries and the Unrestricted Subsidiaries to be
conducted in such a manner so that each of Holdings and the Unrestricted
Subsidiaries will be perceived as a legal entity separate and distinct from one
another and the Subsidiaries.
(c) Holdings shall immediately contribute to the Borrower upon
receipt (i) any cash capital contributions (other than those permitted to be
contributed to an Unrestricted Subsidiary pursuant to clause (vii) of the
definition of "Unrestricted Subsidiary" and those received in connection with
the Equity Swap), (ii) any cash dividends or any other cash distributions paid
or made by, and received from, any Unrestricted Subsidiary and (iii) the net
proceeds of the issuance of any Indebtedness.
SECTION 5.17. Execution of Other Agreements. By April 15, 1998, the
-----------------------------
Borrower (or a wholly owned Subsidiary) and the other parties thereto will enter
into the Qualified Vendor Agreement and deliver copies thereof to the
Administrative Agent.
SECTION 5.18. Notification of Acquisition of Additional Licenses. As
--------------------------------------------------
promptly as practicable, and in any event within 5 days after acquisition of any
License, the Borrower shall notify the Administrative Agent of the acquisition
of such License.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of Holdings and the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) Holdings
---------------------------------------
and the Borrower will not, and will not permit any Subsidiary to, create, incur,
assume or permit to exist any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
(ii) the 11% Notes;
(iii) Subordinated Debt (other than Subordinated Debt permitted by
clause (ii) or (iv) hereof) so long as both at
<PAGE>
the time of and immediately after giving effect to any incurrence of such
Subordinated Debt, the Borrower shall be in Pro Forma Compliance with each
financial covenant; provided that from the Second Amendment and Restatement
--------
Effective Date to December 31, 2002, the aggregate principal amount of such
Subordinated Debt permitted by this clause (iii) shall not exceed
$350,000,000;
(iv) Deeply Subordinated Debt issued pursuant to the Additional
Capital Contribution Commitments in an aggregate principal amount not to
exceed $25,000,000;
(v) Indebtedness of the Borrower to any Subsidiary (other than any
Special Purpose Subsidiary) and of any Subsidiary (other than any Special
Purpose Subsidiary) to the Borrower or any other Subsidiary (other than any
Special Purpose Subsidiary); provided that Indebtedness of any Subsidiary
--------
that is not a Loan Party to the Borrower or any Subsidiary Loan Party shall
be subject to Section 6.05;
(vi) Guarantees by the Borrower of Indebtedness of any Subsidiary
(other than any Special Purpose Subsidiary) and by any Subsidiary (other
than any Special Purpose Subsidiary) of Indebtedness of the Borrower or any
other Subsidiary (other than any Special Purpose Subsidiary); provided that
--------
Guarantees by the Borrower or any Subsidiary Loan Party of Indebtedness of
any Subsidiary that is not a Loan Party shall be subject to Section 6.05;
(vii) Indebtedness of the Borrower or any Subsidiary (other than a
Special Purpose Subsidiary) incurred to finance the acquisition from a
Qualified Vendor or other equipment vendor reasonably acceptable to the
Administrative Agent of cellular equipment and ancillary services required
for the buildout of the Network pursuant to a purchase agreement between
Triton PCS Equipment Company, L.L.C. and such Qualified Vendor to be
entered into by April 15, 1998 (the "Qualified Vendor Agreement") or a
--------------------------
purchase agreement with such other equipment vendor; provided that the
--------
aggregate principal amount of such Indebtedness shall not exceed $65
million at any time outstanding;
(viii) Capital Lease Obligations of the Borrower or any Subsidiary
(other than any Special Purpose Subsidiary) incurred (i) in connection with
the Tower Sale pursuant to the Tower Sale Asset Purchase Agreement or (ii)
pursuant to the Build-to-Suit Agreement (as defined in the Tower Sale Asset
Purchase Agreement);
(ix) Indebtedness (other than Indebtedness described in (vii) or
(viii) above) of the Borrower or any Subsidiary (other than any Special
Purpose Subsidiary) incurred to
<PAGE>
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations and any Indebtedness
assumed in connection with the acquisition of any such assets or secured by
a Lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date
or decreased weighted average life thereof; provided that such Indebtedness
--------
is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement and shall not exceed
$20,000,000 in aggregate principal amount at any time outstanding;
(x) Indebtedness incurred to refinance any senior secured
Indebtedness; provided that (x) such refinancing Indebtedness (a) shall not
--------
have a greater outstanding principal amount, an earlier maturity date or a
decreased weighted average life than the Indebtedness refinanced (b) shall
be subordinated to the Indebtedness created under the Loan Documents to at
least the extent of, and shall otherwise be issued on terms no less
favorable to the Lenders than, the Subordinated Debt and (y) the proceeds
of such Indebtedness shall be used solely to repay the senior secured
Indebtedness refinanced thereby and fees and expenses in connection
therewith;
(xi) to the extent that the accrual of dividends with respect to the
Series A Preferred Stock would be considered Indebtedness, the accrual of
dividends with respect to such Series A Preferred Stock; provided that no
--------
dividends may be paid in respect thereof under any circumstances prior to
the date that is six months after the Tranche B Maturity Date;
(xii) the lease by Triton Management of the property located at 1100
Cassatt Road, Berwyn, Pennsylvania; and
(xiii) other unsecured Indebtedness of the Borrower and the
Subsidiaries (other than any Special Purpose Subsidiary); provided that the
--------
aggregate principal amount of such Indebtedness shall not exceed $5,000,000
at any time outstanding.
(b) Holdings and the Borrower will not, and will not permit any
Subsidiary to, issue any preferred stock (other than (i) preferred stock of
Holdings issued pursuant to the terms of the Securities Purchase Agreement and
the Preferred Stock Agreement and (ii) preferred stock issued to Holdings or
Persons (or Affiliates thereof) owning capital stock of Holdings on the
Effective Date) or be or become liable in respect of any obligation (contingent
or otherwise) to purchase, redeem, retire, acquire or make any other payment in
respect of any
<PAGE>
shares of capital stock of Holdings, the Borrower or any Subsidiary or any
option, warrant or other right to acquire any such shares of capital stock,
except for the obligation of Holdings to repurchase unvested rights to Common
Stock in an amount not to exceed $2,000 in the aggregate. No preferred stock
issued by Holdings, the Borrower or any Subsidiary shall be mandatorily
redeemable or subject to mandatory purchase by the Borrower or any Subsidiary,
and no dividends may be paid (it being understood that dividends may accrue) in
respect thereof, under any circumstances prior to November 4, 2007.
SECTION 6.02. Liens. Holdings and the Borrower will not, and will
-----
not permit any Subsidiary to, create, incur, assume or permit to exist any Lien
on any property or asset now owned or hereafter acquired by it, or assign or
sell any income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of the Borrower or any
Subsidiary (other than the License Subsidiary or the Real Property
Subsidiary) existing on the date hereof and set forth in Schedule 6.02;
provided that (A) such Lien shall not apply to any other property or asset
--------
of the Borrower or any Subsidiary and (B) such Lien shall secure only those
obligations which it secures on the date hereof;
(iv) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Subsidiary; provided that
--------
(A) such Lien is not created in contemplation of or in connection with such
acquisition or such Person becoming a Subsidiary, as the case may be, (B)
such Lien shall not apply to any other property or assets of the Borrower
or any Subsidiary and (C) such Lien shall secure only those obligations
which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be;
(v) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (A) such security
--------
interests secure Indebtedness permitted by clause (ix) of Section 6.01(a),
(B) such security interests and the Indebtedness secured thereby are
incurred prior to or within 180 days after such acquisition or the
completion of such construction or improvement, (C) the Indebtedness
secured thereby does not exceed 100% of the cost of acquiring, constructing
or improving such fixed or capital assets and (D) such
<PAGE>
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
(vi) Liens on assets leased to the Borrower or any Subsidiary
pursuant to the Tower Sale Asset Purchase Agreement; provided, that such
security interests shall not apply to any other property or assets of the
Borrower or any Subsidiary;
(vii) Liens on assets acquired from a Qualified Vendor or other
equipment vendor reasonably acceptable to the Administrative Agent securing
Indebtedness permitted by clause (vii) of Section 6.01(a) incurred to
finance the acquisition of such assets; provided, however, that (i) such
-------- -------
Qualified Vendor or other equipment vendor reasonably acceptable to the
Administrative Agent and the Collateral Agent, on behalf of the Secured
Parties, enter into an intercreditor agreement or joint security agreement
providing for the sharing of the security interest in such assets on terms
satisfactory to the Administrative Agent and (ii) the Borrower or a wholly
owned Subsidiary has title to such assets; and
(viii) Liens on the Capital Stock of Unrestricted Subsidiaries.
SECTION 6.03. Sale and Lease-Back Transactions. The Borrower will
--------------------------------
not, nor will it permit any Subsidiary to, enter into any arrangement, directly
or indirectly, with any Person whereby it shall sell or transfer any property,
real or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property which it
intends to use for substantially the same purpose as the property being sold or
transferred, other than the Tower Sale.
SECTION 6.04. Fundamental Changes. (a) Holdings and the Borrower
-------------------
will not, and will not permit any Subsidiary to, merge into or consolidate with
any other Person, or permit any other Person to merge into or consolidate with
it, or liquidate or dissolve, except that, if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be
continuing (i) any Subsidiary (other than a License Subsidiary or a Real
Property Subsidiary) may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary (other than a License
Subsidiary or a Real Property Subsidiary) may merge into any Subsidiary (other
than the License Subsidiary or the Real Property Subsidiary) in a transaction in
which the surviving entity is a Wholly Owned Subsidiary, (iii) any Subsidiary
(other than a License Subsidiary or a Real Property Subsidiary) may liquidate or
dissolve if the Borrower determines in good faith
<PAGE>
that such liquidation or dissolution is in the best interests of the Borrower
and is not materially disadvantageous to the Lenders and (iv) a Bidding Entity
may merge with or into any License Subsidiary in a transaction in which a Wholly
Owned License Subsidiary is the surviving corporation.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted or contemplated to be conducted by the Borrower and its Subsidiaries
on the Second Amendment and Restatement Effective Date and Related Businesses.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
--------------------------------------------
Acquisitions. The Borrower will not, and will not permit any of its
------------
Subsidiaries to, purchase, hold or acquire (including pursuant to any merger
with any Person that was not a Wholly Owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on February 3, 1998, to the extent such
investments would not be permitted under any other clause of this Section;
(c) investments by the Borrower and its Subsidiaries (other than the
License Subsidiary or the Real Property Subsidiary) in the capital stock of
their Subsidiaries; provided that any such shares of capital stock held by
--------
a Loan Party shall be pledged pursuant to the Pledge Agreement (subject to
the limitations applicable to common stock of a Foreign Subsidiary referred
to in Section 5.12) and no investments may be made in Subsidiaries that are
not Loan Parties;
(d) loans or advances made by the Borrower to any Subsidiary and made
by any Subsidiary to the Borrower or any other Subsidiary; provided that
--------
any such loans and advances made by a Loan Party shall be evidenced by a
promissory note pledged pursuant to the Pledge Agreement and no loans or
advances may be made to Subsidiaries that are not Loan Parties;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that a Subsidiary shall not Guarantee any Subordinated Debt unless
--------
(A) such Subsidiary
<PAGE>
also has Guaranteed the Obligations pursuant to the Guarantee Agreement,
(B) such Guarantee of Subordinated Debt is subordinated to such Guarantee
of the Obligations on terms no less favorable to the Lenders than the
subordination provisions of the Subordinated Debt and (C) such Guarantee of
Subordinated Debt provides for the release and termination thereof, without
action by any party, upon any release and termination of such Guarantee of
the Obligations;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) (i) the purchase of assets contemplated by the Myrtle Asset
Purchase Agreement (without giving effect to any amendments to or waivers
of the Myrtle Asset Purchase Agreement (other than such amendments or
waivers that are not adverse in a material respect to the interests of the
Lenders)) and (ii) the purchase of assets contemplated by the Norfolk Asset
Purchase Agreement (without giving effect to any amendments to or waivers
of the Norfolk Asset Purchase Agreement (other than such amendments or
waivers that are not adverse in a material respect to the interests of the
Lenders));
(h) the acquisition of the AW Swap Licenses in connection with the
consummation of the AW Pops Swap;
(i) investments in Bidding Entities; provided that (i) any such debt
--------
investments shall be made pursuant to a Bidding Entity Note and such
Bidding Entity Note and all other agreements entered into between a Bidding
Entity and any Loan Party are assigned to the Administrative Agent, as
agent for the Lenders as collateral and (ii) the aggregate amount permitted
by this paragraph (i), when combined with Section 6.05(n), shall not exceed
$100,000,000 plus Equity Proceeds received after the date hereof (without
duplication); provided further that the aggregate amount of investments in
Capital Stock of the Bidding Entities shall not exceed $1,000,000;
(j) investments in the Capital Stock of the Marketing Affiliate, the
consideration for which consists of the transfer of the SunCom trademark;
provided that (i) all such Capital Stock is pledged pursuant to the Pledge
Agreement and (ii) all agreements entered into between the Marketing
Affiliate and any Loan Party are assigned to the Administrative Agent, as
agent for the Lenders as collateral; provided, further, that if an Event of
-------- -------
Default exists, the Lenders may enforce the Loan Parties' rights with
respect to such Capital Stock and agreements but may
<PAGE>
transfer such Capital Stock and assign such agreements to third parties
only after obtaining any required consents from the equity holders (other
than any Loan Party) in the Marketing Affiliate, such consents not to be
unreasonably withheld;
(k) loans or advances made to employees in an aggregate amount not to
exceed $2,000,000 at any time outstanding;
(l) buy-backs of Capital Stock of Holdings from employees upon death
or termination of employment in an aggregate amount not to exceed
$1,000,000 during any fiscal year of the Borrower; and
(m) acquisitions of or investments in Persons engaged in Related
Businesses so long as (i) the consideration paid in connection with all
such acquisitions or investments consists solely of cash and/or Capital
Stock of Holdings with an aggregate value not in excess of $30,000,000 plus
Equity Proceeds after the date hereof (without duplication) and (ii)
Holdings, the Borrower and the Subsidiaries shall be in Pro Forma
Compliance after giving effect to any such acquisition or investment.
(n) acquisitions of Licenses and License Related Assets by the
Borrower or any Subsidiary so long as (i) the aggregate amount permitted by
this paragraph (n), when combined with 6.05(i), shall not exceed
$100,000,000 plus Equity Proceeds received after the date hereof (without
duplication) and (ii) Holdings, the Borrower and the Subsidiaries shall be
in Pro Forma Compliance after giving effect to any such acquisition.
SECTION 6.06. Asset Sales. Holdings and the Borrower will not, and
-----------
will not permit any Subsidiary to, sell, transfer, lease or otherwise dispose of
any asset (other than assets of Holdings constituting an Unrestricted
Subsidiary), including any capital stock, nor will the Borrower permit any of
its Subsidiaries to issue any additional shares of its capital stock or other
ownership interest in such Subsidiary, except in the case of the Borrower and
its Subsidiaries:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business;
(b) sales, transfers and dispositions to the Borrower or a
Subsidiary; provided that any such sales, transfers or dispositions
--------
involving a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.09;
<PAGE>
(c) sales, transfers and dispositions of assets (other than capital
stock of a Subsidiary) that are not permitted by any other clause of this
Section; provided that the aggregate fair market value of all assets sold,
--------
transferred or otherwise disposed of in reliance upon this clause (c) shall
not exceed $10,000,000 during any fiscal year of the Borrower;
(d) the sale to AW of the Exchanged Licenses contemplated by the
definition of AW Pops Swap;
(e) the transfer of the SunCom trademark to the Marketing Affiliate;
(f) the Tower Sale; and
(g) so long as after giving effect thereto the Borrower is in Pro
Forma Compliance, any License Swap provided that, (i) the aggregate number
--------
of Pops in the BTAs, MTAs, MSAs or RSAs covered by the License or Licenses
that are the subject of all License Swaps in each fiscal year may not
exceed 10% of the aggregate number of Pops covered by the Borrower and its
Subsidiaries immediately prior to such Licence Swap and (ii) such License
Swap shall have been approved by the board of directors of Holdings or
executive committee of the board of directors of Holdings including the
affirmative vote of a majority of disinterested directors;
provided that all sales, transfers, leases and other dispositions permitted
--------
hereby (other than those permitted in clauses (d) and (e) above) shall be made
for fair value and solely for cash consideration.
SECTION 6.07. Hedging Agreements. Holdings and the Borrower will
------------------
not, and will not permit any Subsidiary to, enter into any Hedging Agreement,
other than (a) Hedging Agreements required by Section 5.14 and (b) Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which the Borrower or any Subsidiary is exposed in the conduct of its
business or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.
-----------------------------------------------------
(a) The Borrower will not, nor will it permit any Subsidiary to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
except (i) the Borrower may declare and pay dividends with respect to its
capital stock payable solely in additional shares of its common stock, (ii)
Subsidiaries may declare and pay dividends ratably with respect to their capital
stock, provided that no distribution referred to in this clause (ii) 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
<PAGE>
result therefrom, (iii) the Borrower may make Restricted Payments, not exceeding
$1,000,000 during any fiscal year, pursuant to and in accordance with stock
option plans or other benefit plans for management or employees of the Borrower
and its Subsidiaries and (iv) if no Default has occurred and is continuing, the
Borrower may make Restricted Payments to Holdings (A) to fund, as and when due,
payments of regularly scheduled interest and principal in respect of any
Indebtedness incurred by Holdings that is permitted by Section 6.01(a), other
than payments in respect of the Subordinated Debt prohibited by the
subordination provisions thereof, and, (B) to fund, as and when due, payments in
respect of taxes, audit fees and directors and officers insurance premiums
incurred by Holdings (to the extent fairly allocable to the business of the
Borrower and the Subsidiaries rather than the business of the Unrestricted
Subsidiaries) in an aggregate amount not to exceed $3,000,000 (or such higher
amount as the Administrative Agent may agree) during any fiscal year of the
Borrower.
(b) Holdings and the Borrower will not, and will not permit any
Subsidiary to, make or agree to pay or make, directly or indirectly, any payment
or other distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or other
distribution (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, acquisition, cancelation or termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness permitted by
Section 6.01(a), other than payments in respect of the Subordinated Debt
prohibited by the subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by Section
6.01;
(iv) payment of secured Indebtedness permitted by Section 6.01(a)
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(v) returns of deposits or advances in the ordinary course of
business;
(vi) payment made to satisfy the Borrower's reimbursement obligations
under any Letters of Credit issued hereunder;
<PAGE>
(vii) payments under Guarantees of obligations of Persons other than
Holdings, the Borrower and the Subsidiaries that are permitted under
Section 6.01; and
(viii) regularly scheduled rent payments in respect of any Capital
Lease Obligations that are permitted under Section 6.01.
SECTION 6.09. Transactions with Affiliates. Holdings and the
----------------------------
Borrower will not, and will not permit any Subsidiary to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) transactions in the
ordinary course of business that are at prices and on terms and conditions not
less favorable to Holdings, the Borrower or such Subsidiary than could be
obtained on an arm's-length basis from unrelated third parties, (b) transactions
between or among Holdings, the Borrower and the Subsidiary Loan Parties not
involving any other Affiliate, (c) the transactions contemplated by the
Preferred Stock Agreement and the Norfolk Asset Purchase Agreement, (d) the AW
Pops Swap and (e) any Restricted Payment permitted by Section 6.08.
SECTION 6.10. Restrictive Agreements. The Borrower will not, nor
----------------------
will it permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the
Borrower or any other Subsidiary; provided that (i) the foregoing shall not
--------
apply to restrictions and conditions imposed by law or by any Loan Document or
Subordinated Debt Document, (ii) the foregoing shall not apply to restrictions
and conditions existing on the date hereof identified on Schedule 6.10 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the foregoing
shall not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is to be sold and
such sale is permitted hereunder, (iv) clause (a) of the foregoing shall not
apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
agreements restricting the assignment thereof.
<PAGE>
SECTION 6.11. Amendment of Material Documents. Holdings and the
-------------------------------
Borrower will not, and will not permit any Subsidiary to, amend, modify or waive
any of its rights under (a) any agreement relating to material Indebtedness, (b)
its certificate of incorporation, by-laws or other organizational documents, (c)
the Special Purpose Subsidiary Funding Agreements, (d) the PCS Documents, (e)
the Tower Sale Asset Purchase Agreement, (f) the Additional Capital
Contributions Commitments, (g) the definitive documentation for the Additional
Capital Contributions and (h) any Bidding Entity Note, in the case of clauses
(a), (b), (c), (e), (f), (g) and (h) above, in a manner adverse to the interests
of the Lenders and, in the case of clause (d) above, in a manner that could be
adverse in a material respect to the interests of the Lenders provided that, if
--------
requested by the Borrower, the Administrative Agent will review any contemplated
amendment or waiver of such debt or other agreements and promptly advise the
Borrower if such amendment or waiver could be adverse to the interests of the
Lenders.
SECTION 6.12. Financial Covenants. (a) Senior Debt to Total Capital.
------------------- ----------------------------
Holdings and the Borrower will not permit the ratio of Senior Debt to Total
Capital in each case on any day on which a Borrowing occurs and the last day of
each fiscal quarter to exceed .50 to 1; provided, however, that if (i) all
-------- -------
Unfunded Commitments (as defined in the Securities Purchase Agreement) have been
contributed in full in cash to the Borrower and (ii) Covered Pops meet or exceed
60% of the aggregate number of Pops within the Licensed Territory (as defined in
the Network License Agreement) then the ratio of Senior Debt to Total Capital
may exceed .50 to 1 but shall not exceed .55 to 1 on or prior to December 31,
2000 and thereafter shall not be limited.
(b) Total Debt to Total Capital. Holdings and the Borrower will not
---------------------------
permit the ratio of Total Debt to Total Capital in each case on any day on which
a Borrowing occurs and the last day of each fiscal quarter to exceed (i) on or
prior to March 31, 2005, .75 to 1 and (ii) thereafter, .70 to 1.
(c) Capital Expenditures. The Borrower will not permit Capital
--------------------
Expenditures of the Borrower and its Subsidiaries for any period set forth below
to exceed the sum set forth opposite such period:
Period Amount
------ ------
Date of formation through $275,000,000
December 31, 1998
January 1, 1999 - December 31, 1999 $375,000,000
January 1, 2000 - December 31, 2000 $300,000,000
January 1, 2001 - December 31, 2001 $150,000,000
January 1, 2002 - December 31, 2002 $100,000,000
<PAGE>
; provided, that any permitted amount which is not expended in any of the
--------
periods specified above (other than the period from the date of formation
through December 31, 1998) may be carried over for expenditure in the
immediately subsequent period.
(d) Covered Pops. The Borrower will not permit Covered Pops as a
------------
percentage of the total number of Pops in the Service Regions on or after any
date set forth below to be less than the percentage set forth opposite such
date.
Date Minimum Covered Pops
---- --------------------
June 30, 1999 40%
June 30, 2000 60%
June 30, 2001 75%
June 30, 2002 and thereafter 80%
(e) Aggregate Service Revenue. The Borrower will not permit
-------------------------
Aggregate Service Revenue for any period of four consecutive fiscal quarters
ending on or after any date set forth below and prior to January 1, 2001 to be
less than Aggregate Service Revenue set forth opposite such date.
Minimum Aggregate
-----------------
Date Service Revenue
---- ---------------
June 30, 1999 15,000,000
December 31, 1999 60,000,000
June 30, 2000 125,000,000
December 31, 2000 190,000,000
(f) Subscribers. The Borrower will not permit the number of
-----------
Subscribers on or after any date set forth below and prior to January 1, 2001 to
be less than the number of Subscribers set forth opposite such date:
Date Minimum Subscribers
---- -------------------
December 31, 1999 155,000
June 30, 2000 210,000
December 31, 2000 350,000
<PAGE>
(g) Senior Debt to Annualized Adjusted EBITDA. Holdings and the
-----------------------------------------
Borrower will not permit the ratio of (i) Senior Debt outstanding on any day
from and including (a) the last day of any fiscal quarter set forth below
through (b) the day immediately preceding the last day of the immediately
following fiscal quarter to (ii) Annualized Adjusted EBITDA for the period
ending on the date referred to in clause (i)(a) above to exceed the ratio set
forth opposite such date:
Fiscal Quarter Ending On Ratio
------------------------ -----------
March 31, 2000 14.0 to 1
June 30, 2000 8.0 to 1
September 30, 2000 8.0 to 1
December 31, 2000 7.0 to 1
March 31, 2001 6.0 to 1
June 30, 2001 5.0 to 1
September 30, 2001 5.0 to 1
December 31, 2001 4.5 to 1
(h) Total Debt to Annualized Adjusted EBITDA. Holdings and the
----------------------------------------
Borrower will not permit the ratio of (i) Total Debt outstanding on any day from
and including (a) the last day of any fiscal quarter set forth below through (b)
the day immediately preceding the last day of the immediately following fiscal
quarter to (ii) Annualized Adjusted EBITDA for the period ending on the date
referred to in clause (i)(a) above to exceed the ratio set forth opposite such
date:
Fiscal Quarter Ending On Ratio
------------------------ ---------
September 30, 2000 23.0 to 1
December 31, 2000 17.0 to 1
March 31, 2001 14.0 to 1
June 30, 2001 12.0 to 1
September 30, 2001 10.0 to 1
December 31, 2001 9.0 to 1
(i) Senior Debt to Annualized EBITDA. Holdings and the Borrower will
--------------------------------
not permit the ratio of (i) Senior Debt outstanding on any day from and
including (a) the last day of any fiscal quarter set forth below through (b) the
day immediately preceding the last day of the immediately following fiscal
quarter to (ii) Annualized EBITDA for the period ending on the date referred to
in clause (i)(a) above to exceed the ratio set forth opposite such date:
Fiscal Quarter Ending On Ratio
------------------------ -------------
March 31, 2002 9.0 to 1
June 30, 2002 7.0 to 1
September 30, 2002 6.0 to 1
December 31, 2002 5.0 to 1
March 31, 2003 4.0 to 1
June 30, 2003 4.0 to 1
September 30, 2003 3.0 to 1
December 31, 2003 and thereafter 3.0 to 1
<PAGE>
(j) Total Debt to Annualized EBITDA. Holdings and the Borrower will
-------------------------------
not permit the ratio of (i) Total Debt outstanding on any day from and including
(a) the last day of any fiscal quarter set forth below through (B) the day
immediately preceding the last day of the immediately following fiscal quarter
to (ii) Annualized EBITDA for the period ending on the date referred to in
clause (i)(a) above to exceed the ratio set forth opposite such date:
Fiscal Quarter Ending On Ratio
------------------------ --------------
March 31, 2002 19.0 to 1
June 30, 2002 17.0 to 1
September 30, 2002 14.0 to 1
December 31, 2002 11.0 to 1
March 31, 2003 8.0 to 1
June 30, 2003 8.0 to 1
September 30, 2003 6.0 to 1
December 31, 2003 6.0 to 1
March 31, 2004 6.0 to 1
June 30, 2004 6.0 to 1
September 30, 2004 and thereafter 4.5 to 1
(k) Interest Coverage Ratio. Holdings and the Borrower will not
-----------------------
permit the ratio of (i) Consolidated EBITDA for any period of four consecutive
fiscal quarters ending on any date or during any "Test Period" set forth below
to (ii) Cash Interest Expense for such period to be less than the ratio set
forth opposite such date or Test Period:
Date or Test Period Ratio
------------------- -----
September 30, 2002 - December 31, 2002 1.50 to 1
March 31, 2003 1.75 to 1
June 30, 2003 - June 30, 2005 2.00 to 1
September 30, 2005 and thereafter 2.25 to 1
(l) Fixed Charges Ratio. Holdings and the Borrower will not permit
-------------------
the ratio of (i) Consolidated EBITDA for any period of four consecutive fiscal
quarters ending during any "Test Period" set forth below to Fixed Charges for
such period to be less than the ratio set forth opposite such Test Period.
Test Period Ratio
----------- -----
December 31, 2002 - June 30, 2003 1.00 to 1
September 30, 2003 and thereafter 1.10 to 1
SECTION 6.13. Liabilities of Special Purpose Subsidiaries. The
-------------------------------------------
Borrower will not:
<PAGE>
(a) permit the License Subsidiary to incur, assume or permit to exist
any liabilities (other than under the Guarantee Agreement and the Security
Agreement and the Communications Act and taxes and other liabilities incurred in
the ordinary course in order to maintain its existence or Guarantees of 11%
Notes and of the Subordinated Debt permitted by Section 6.01(a)(ii) and (iii)
hereof) or to engage in any business or activities other than the holding of
Licenses; provided that a License Subsidiary may hold an asset which is to be
--------
immediately transferred in accordance with Section 5.13(b) hereof; or
(b) permit the Real Property Subsidiary to incur, assume or permit to
exist any liabilities (other than under the Guarantee Agreement and the Security
Agreement and other liabilities incurred in the ordinary course of business
which are incident to being the lessee of real property or the purchaser, owner
or lessee of equipment and taxes and other liabilities in the ordinary course in
order to maintain its existence or Guarantees of the 11% Notes and of the
Subordinated Debt permitted by Section 6.01 (a)(ii) and (iii) hereof) or to
engage in any business or activities other than the owning or leasing, as
lessee, of Real Property Assets and the leasing, as lessor, or, as the case may
be, subleasing, as sublessor, thereof to the Borrower or another Subsidiary, and
the owning of Real Property-Related Equipment constituting fixtures thereto and
the leasing thereof to the Borrower or another Subsidiary.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document, when
and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of any Loan Party in or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to
<PAGE>
or in connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, shall prove to have been incorrect in any
material respect when made or deemed made;
(d) Holdings or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02, 5.04 (with
respect to the existence of the Borrower and Holdings), 5.11 or 5.16(b) or
in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant,
condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) any Loan Party shall fail to make any payment (whether of
principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
--------
shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of any Loan Party or its debts, or of a substantial part
of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition
shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) any Loan Party shall (i) voluntarily commence any proceeding or
file any petition seeking liquidation, reorganization or other relief under
any Federal, state or
<PAGE>
foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a timely and appropriate manner, any proceeding or petition described in
clause (h) of this Article, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing;
(j) any Loan Party shall become unable, admit in writing its
inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money to the extent not
covered by insurance in an aggregate amount in excess of $5,000,000 shall
be rendered against the Borrower, any Loan Party or any combination thereof
and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) any Lien purported to be created under any Security Document
shall cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral, with the priority required by
the applicable Security Document, except (i) as a result of the sale or
other disposition of the applicable Collateral in a transaction permitted
under the Loan Documents or (ii) as a result of the Administrative Agent's
failure to maintain possession of any stock certificates, promissory notes
or other instruments delivered to it under the Pledge Agreement or the
Administrative Agent's failure to file necessary continuation financing
statements or make required filings with the Patent and Trademark Office of
the United States after delivery to the Administrative Agent by the
Borrower of executed copies of such financing statements and filings;
provided, that if the failure of any such Lien to be valid and perfected is
--------
amenable to cure without materially disadvantaging the position of the
Administrative Agent and the Lenders as secured parties, the failure of
such Lien to be valid and perfected shall
<PAGE>
not constitute a default under this clause (m) if the Borrower shall have
cured such failure within 30 days after notice from the Administrative
Agent (or such shorter period as may be reasonable under the circumstances
and is specified by the Administrative Agent in such notice).
(n) any of the Security Documents shall cease to be or shall be
asserted by any Loan Party not to be in full force and effect;
(o) the Guarantee Agreement shall cease to be or shall be asserted by
any Loan Party not to be in full force and effect or the Borrower;
(p) a Change in Control shall occur;
(q) the failure of the Borrower to make any payments required to be
made to the FCC or any other Governmental Authority with respect to any
License held by the Borrower or any Subsidiary or any Indebtedness or other
payment obligations relating thereto as and when due which failure could
reasonably be expected to lead to the loss, termination, revocation, non-
renewal or material impairment of any License or otherwise result in a
Material Adverse Effect;
(r) any termination (prior to the expiration of its term), revocation
or non-renewal by the FCC of one or more Licenses of the Borrower or its
Subsidiaries;
(s) the Borrower's right to use any "AT&T" trademark pursuant to the
Network License Agreement shall terminate (it being understood that, on or
after February 4, 2003, neither the non-renewal of the Network License
Agreement by AW nor the termination of the Network License Agreement by AW
as a result of a Disqualifying Transaction (as defined in the Stockholders
Agreement) shall constitute an Event of Default hereunder);
(t) the loss by any Loan Party of any rights to the benefit of, or
the occurrence of any default or the termination of any rights under, any
application, marketing or other material agreements, which loss, occurrence
or termination could reasonably be expected to affect in a material and
adverse respect the Borrower's ability to satisfy its obligations to the
Lenders hereunder or to result in a Material Adverse Effect (it being
understood that, on or after the date which is five years from the
Effective Date, neither the non-renewal of the Network License Agreement by
AW nor the termination of the Network License Agreement by AW as a result
of a Disqualifying Transaction (as defined in the Stockholders Agreement)
shall constitute an Event of Default hereunder);
<PAGE>
(u) the failure of any party to the Securities Purchase Agreement or
the Stockholders Agreement to comply with any funding or contribution
obligation under such Agreement and such failure shall continue unremedied
for a period of 30 days;
(v) On or prior to December 31, 1999, Holdings shall not have either
(i) executed definitive documentation with respect to the Additional
Capital Contributions on terms satisfactory to the Administrative Agent or
(ii) received Net Proceeds of at least $75,000,000 from an initial public
offering of its equity securities;
(w) Any Bidding Entity shall fail to reimburse promptly after its
receipt thereof from an FCC escrow account substantially all funds loaned
to it (net of reasonable expenses) by the Borrower or any Subsidiary which
have not been used to purchase Licenses during any PCS C Block Auction or
any similar auction by the FCC of spectrum;
(x) any Bidding Entity-Related Default shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
<PAGE>
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the
<PAGE>
performance or observance of any of the covenants, agreements or other terms or
conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Loan Document, other than to confirm receipt of
items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, with the
consent of the Borrower (which consent shall not be unreasonably withheld), to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent which shall be a bank with an
office in New York, New York, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring
<PAGE>
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such successor.
After the Administrative Agent's resignation hereunder, the provisions of this
Article and Section 9.03 shall continue in effect for the benefit of such
retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them
while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any other Loan Document or related agreement or any document furnished hereunder
or thereunder.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
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communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower or Holdings, to it at 1100 Cassatt Road,
Berwyn, Pennsylvania 19312, Attention of David Clark and Daniel E. Hopkins
(Telecopy No. 610-993-2683);
with copies to
Klienbard, Bell & Brecker LLP
1900 Market Street, Suite 700
Philadelphia, PA 19103
Attn: Howard Davis and Ralph Mauro
Telecopy: 215-568-0140
<PAGE>
and
Dow Lohnes & Albertson, PLLC
1200 New Hampshire, N.W., Suite 800
Washington, D.C. 20036
Attn: Timothy J. Kelley
Telecopy: 202-776-2222
(b) if to the Administrative Agent or the Issuing Bank, to The Chase
Manhattan Bank, Loan and Agency Services Group, One Chase Manhattan, 8th
Floor, New York, New York 10081, Attention of Rana Khan (Telecopy No. (212)
552-5700), with a copy to The Chase Manhattan Bank, 270 Park Avenue, New
York, New York 10017, Attention of Tracey Ewing (Telecopy No. (212) 270-
4164); and
(d) if to the Swingline Lender, to it at the address notified to the
Borrower and the Administrative Agent; and
(e) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
-------------------
Administrative Agent or any Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of any Loan Document or consent to any departure by any Loan
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan
or the issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, the Issuing Bank or any
Lender may have had notice or knowledge of such Default at the time.
<PAGE>
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders; provided
--------
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any
Loan, or the required date of reimbursement of any LC Disbursement, or any
interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.16(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of "Required
Lenders" or any other provision of any Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or
modify any rights thereunder or make any determination or grant any consent
thereunder, without the written consent of each Lender (or each Lender of such
Class, as the case may be), (vi) release any Subsidiary Loan Party from its
Guarantee under the Guarantee Agreement (except as expressly provided in the
Guarantee Agreement), or limit its liability in respect of such Guarantee,
without the written consent of each Lender, (vii) release all or a substantial
part of the Collateral from the Liens of the Security Documents, without the
written consent of each Lender, (viii) change any provisions of any Loan
Document in a manner that by its terms adversely affects the rights in respect
of payments due to Lenders holding Loans of any Class differently than those
holding Loans of any other Class, without the written consent of Lenders holding
a majority in interest of the outstanding Loans and unused Commitments of each
affected Class or (ix) change the rights of the Tranche B Lenders to decline
mandatory prepayments as provided in Section 2.09, without the written consent
of Tranche B Lenders holding a majority of the outstanding Tranche B Loans;
provided further that (A) no such agreement shall amend, modify or otherwise
----------------
affect the rights or duties of the Administrative Agent, the Issuing Bank or the
Swingline Lender hereunder without the prior written consent of the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be and (B) any waiver, amendment or modification of this Agreement that by its
terms affects the rights or duties of the Lenders holding one particular Class
of Loans but not of Lenders holding any
<PAGE>
other Class of Loans under this Agreement may be effected by an agreement or
agreements in writing entered into by the Borrower and the Lenders who hold the
requisite percentage in interest of such affected Class of Loans.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including due diligence expenses and
the reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of the Loan Documents or any
amendments, modifications or waivers of the provisions thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with the Loan Documents, including its rights under
this Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any failure of the Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Mortgaged Property or any other property owned or operated by the
Borrower or any of its Subsidiaries, or any Environmental Liability related in
any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the
<PAGE>
foregoing, whether based on contract, tort or any other theory and regardless of
whether any Indemnitee is a party thereto; provided that such indemnity shall
--------
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or the Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or the Issuing Bank, as the case may be, such Lender's pro
rata share (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the
--------
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the Issuing Bank in its capacity as such and provided,
--------
further, that payments by the Lenders to the Administrative Agent pursuant to
-------
this sentence shall be returned to the Lenders to the extent the Borrower
subsequently pays such unpaid amount. For purposes hereof, a Lender's "pro rata
share" shall be determined based upon its share of the sum of the total
Revolving Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any
<PAGE>
Letter of Credit), and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
--------
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Revolving Commitment or any Lender's
obligations in respect of its LC Exposure, the Issuing Bank) must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld or delayed), (ii) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment or Loans, the amount of the
Commitment or Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrower and the Administrative Agent otherwise
consent, (iii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, except that this clause (iii) shall not be construed to prohibit
the assignment of a proportionate part of all the assigning Lender's rights and
obligations in respect of one Class of Commitments or Loans, (iv) the parties to
each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
----------------
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default under clause (h) or (i) of Article VII has
occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by
a Lender of rights or obligations under this Agreement that does not comply with
this paragraph
<PAGE>
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
--------
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
-----------
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
--------
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided that such agreement or
--------
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant.
<PAGE>
Subject to paragraph (f) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section. To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 9.08 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.16(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations
--------
and warranties made by the Loan Parties in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been
relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any
Letters of Credit, regardless of any investigation made by any such other party
or on its behalf and notwithstanding that the Administrative Agent, the Issuing
Bank or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not expired or terminated. The provisions of
Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or
<PAGE>
termination of the Letters of Credit and the Commitments or the termination of
this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
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Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Documents and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to
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be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have
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occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have. Any Lender exercising a set-off pursuant to this
Section 9.08 shall give notice thereof to the Borrower as soon as reasonably
practicable thereafter.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of
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Process. (a) This Agreement shall be construed in
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accordance with and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to any
Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in such
New York State or, to the extent permitted by law, in such Federal court. Each
of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement or any other Loan Document shall affect any right that the
Administrative Agent, the Issuing Bank or any Lender may otherwise have to bring
any action or proceeding relating to this Agreement or any other Loan Document
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement or any other Loan Document will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
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TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
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HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table
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of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent,
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the Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant in,
any of its rights or obligations under this Agreement, (g) with the consent of
the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" means all information received from Holdings or
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the Borrower relating to Holdings or the Borrower or their business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; provided that, in the case of information received from the Borrower
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after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
