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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1998.
Or
[ ] TRANSACTION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO
, 19 ---------------
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Commission File Number: 0-23102
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POWERTEL, INC.
(Exact name of registrant as specified in its charter)
Delaware 58-1944750
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1233 O.G. Skinner Drive, West Point, Georgia 31833
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (706) 645-2000
Indicate by a check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at May 12, 1998
Common Stock, $0.01 par value 26,948,955
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POWERTEL, INC.
INDEX TO FORM 10-Q
<TABLE>
<CAPTION>
PAGE
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<S> <C> <C> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements........................................... 3
Condensed Consolidated Balance Sheets as of
March 31, 1998 and December 31, 1997........................... 3
Condensed Consolidated Statements of Operations for the
Three Months ended March 31, 1998 and 1997..................... 4
Condensed Consolidated Statements of Cash Flows for the
Three Months ended March 31, 1998 and 1997..................... 5
Condensed Notes to Consolidated Financial Statements........... 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations............................ 7
Item 3. Quantitative and Qualitative Disclosure About Market
Risks......................................................... 14
PART II OTHER INFORMATION
Item 1. Legal Proceedings.............................................. 15
Item 6. Exhibits and Reports on Form 8-K............................... 15
SIGNATURES
EXHIBIT INDEX
</TABLE>
2
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PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
POWERTEL, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
MARCH 31, DECEMBER 31,
ASSETS 1998 1997
----------- -----------
(DOLLARS IN THOUSANDS)
(UNAUDITED)
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 241,433 $ 326,954
Restricted cash for payment of interest 33,375 33,375
Accounts receivable, net of allowance for doubtful accounts 20,233 34,549
Inventories 23,335 3,975
Prepaid expenses and other 7,044 6,631
----------- -----------
325,420 405,484
----------- -----------
PROPERTY AND EQUIPMENT, AT COST: 576,232 541,449
Less: accumulated depreciation (62,634) (49,699)
----------- -----------
513,598 491,750
----------- -----------
OTHER ASSETS:
Licenses, net 414,550 416,252
Restricted cash for payment of interest 44,872 43,710
Deferred charges and other, net 20,796 21,396
----------- -----------
480,218 481,358
----------- -----------
$ 1,319,236 $ 1,378,592
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable - trade $ 12,425 $ 46,133
Accrued construction costs 17,906 23,092
Accrued interest 11,125 2,781
Accrued other 7,951 11,015
Accrued taxes other than income 7,269 6,056
Advance billings and customer deposits 3,410 2,429
Current portion of long-term obligations 298 256
----------- -----------
60,384 91,762
----------- -----------
LONG-TERM OBLIGATIONS:
12% Senior Discount Notes due February 2006 251,471 244,014
12% Senior Discount Notes due May 2006 251,527 244,344
11.125% Senior Notes due June 2007 300,000 300,000
Credit Agreement 194,685 179,961
Other 753 695
----------- -----------
998,436 969,014
----------- -----------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Series A Convertible Preferred Stock 1 1
Series B Convertible Preferred Stock 1 1
Series C Convertible Preferred Stock 1 1
Series D Convertible Preferred Stock 1 1
Common Stock 270 270
Paid-in capital 477,242 477,109
Accumulated deficit (215,624) (157,934)
Deferred compensation (1,131) (1,288)
Treasury stock, at cost (345) (345)
----------- -----------
260,416 317,816
----------- -----------
$ 1,319,236 $ 1,378,592
=========== ===========
</TABLE>
The accompanying condensed notes to financial statements are an integral
part of these statements.
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POWERTEL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1998 1997
------------------ -------------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C>
REVENUES AND SALES:
Monthly access revenue $ 16,194 $ 8,540
Airtime revenue 7,544 1,827
Roaming revenue 1,576 1,242
Toll revenue 3,096 1,290
Installation and connection revenue 1,029 667
Other revenue 638 518
-------- --------
Total service revenues 30,077 14,084
Equipment sales 6,646 5,025
-------- --------
Total revenues and sales 36,723 19,109
-------- --------
OPERATING EXPENSES:
Cost of services 9,549 5,428
Cost of equipment sold 17,425 11,987
Operations 10,398 3,809
Selling and marketing 11,915 5,237
General and administrative 8,130 7,680
Depreciation 12,935 8,340
Amortization 2,392 1,178
-------- --------
Total operating expenses 72,744 43,659
-------- --------
OPERATING LOSS (36,021) (24,550)
-------- --------
OTHER (INCOME) EXPENSE:
Interest (income) expense, net 21,832 4,543
Miscellaneous (income) expense, net (163) 473
-------- --------
Total other (income) expense 21,669 5,016
-------- --------
LOSS BEFORE INCOME TAXES (57,690) (29,566)
INCOME TAX (BENEFIT) PROVISION -- --
-------- --------
NET LOSS $(57,690) $(29,566)
======== ========
PER SHARE DATA:
BASIC LOSS PER COMMON SHARE $ (2.14) $ (1.10)
======== ========
DILUTED LOSS PER COMMON SHARE $ (2.14) $ (1.10)
======== ========
</TABLE>
The accompanying condensed notes to financial statements are an integral
part of these statements.
4
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POWERTEL, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
1998 1997
--------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
CASH FLOWS USED IN OPERATING ACTIVITIES:
Net loss $ (57,690) $ (29,566)
Adjustments to reconcile net loss to net cash used in
operating activities -
Depreciation and amortization 15,327 9,518
Bond accretion 14,286 6,320
Other, net 769 303
Changes in operating assets and liabilities:
(Increase) decrease in accounts receivable 14,316 (4,903)
Increase in inventories (19,360) (11,567)
(Increase) decrease in other assets (425) 10,340
Decrease in accounts payable, accrued expenses
and other current liabilities (26,234) (16,113)
--------- ---------
Net cash used in operating activities (59,011) (35,668)
--------- ---------
CASH FLOWS (USED IN) PROVIDED FROM INVESTING ACTIVITIES:
Capital expenditures (34,745) (36,209)
Liquidation of short-term investments, net 0 75,659
Purchase of long-term investments, net (1,162) 0
Microwave relocation (374) (3,265)
Decrease in accrued construction costs (5,186) (13,003)
--------- ---------
Net cash (used in) provided from investing activities (41,467) 23,182
--------- ---------
CASH FLOWS PROVIDED FROM FINANCING ACTIVITIES:
Borrowings under Credit Agreement 14,724 34,319
Proceeds from sale of Common Stock, net 133 5
Other, net 100 148
--------- ---------
Net cash provided from financing activities 14,957 34,472
--------- ---------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (85,521) 21,986
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 326,954 185,525
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 241,433 $ 207,511
========= =========
</TABLE>
The accompanying condensed notes to financial statements are an integral
part of these statements.
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POWERTEL, INC.
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to Article
10 of Regulation S-X of the Securities and Exchange Commission. The
accompanying unaudited condensed consolidated financial statements
reflect, in the opinion of management, all adjustments necessary to
achieve a fair statement of financial position and results for the
interim periods presented. All such adjustments are of a normal
recurring nature. It is suggested that these condensed consolidated
financial statements be read in conjunction with the financial
statements and notes thereto included in the Annual Report of Powertel,
Inc. ("Powertel" or the "Company") on Form 10-K for the year ended
December 31, 1997.
2. Certain prior year amounts have been reclassified to conform to the
current period presentation.
3. Effective with the three months ended December 31, 1997, the Company
adopted Statement of Financial Accounting Standards No. 128, "Earnings
Per Share" ("SFAS 128"), which requires the restatement of all prior
period earnings per common share ("EPS") amounts. The components of EPS
and their derivation as required under SFAS 128 are as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
------------------------------
1998 1997
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<S> <C> <C>
Basic earnings per share:
Net loss available to common stockholders $ (57,690) $ (29,566)
Average common shares outstanding 26,965 26,812
Basic earnings per share $ (2.14) $ (1.10)
Diluted earnings per share:
Net loss available to common stockholders $ (57,690) $ (29,566)
Average common shares outstanding 26,965 26,812
Diluted earnings per share $ (2.14) $ (1.10)
</TABLE>
Basic EPS was computed by dividing net loss by the weighted average
number of shares of Common Stock outstanding during the quarter. Diluted
EPS is the same as basic EPS because all Common Stock equivalents would
have an antidilutive effect.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
Powertel, Inc. (the "Company" or "Powertel") provides personal
communications services ("PCS") in the southeastern United States under the name
"Powertel" and cellular telephone service in contiguous portions of eastern
Alabama and western Georgia under the name "InterCel." The Company formerly
provided cellular telephone service in the State of Maine under the name
"Unicel." On May 1, 1997, the Company sold substantially all the assets of
Unicel for approximately $77.2 million (the "Maine Disposition"). The common
stock of the Company, par value of $0.01 per share (the "Common Stock"), is
traded on the Nasdaq Stock Market under the symbol "PTEL."
Powertel's PCS licenses encompass a territory of approximately 246,000
contiguous square miles with a population of approximately 24.3 million people
in the Major Trading Areas ("MTAs") of Atlanta, Georgia; Jacksonville, Florida;
Memphis, Tennessee/Jackson, Mississippi; and Birmingham, Alabama (the "Current
PCS Markets") and in 13 Basic Trading Areas ("BTAs") in Kentucky and Tennessee
(the "Kentucky/Tennessee BTAs"). The Company first introduced its PCS services
in October 1996 in Jacksonville, Florida and Montgomery, Alabama and, to date,
has launched its PCS services in a total of 25 markets in the Southeast. In all
of these markets, except Atlanta, Georgia, where the Company acquired its
licenses from GTE Mobilnet Incorporated in 1996, the Company was the first to
offer PCS services commercially. Powertel intends to continue to rapidly build
out its PCS network and to launch its PCS services. As of March 31, 1998, the
Company had approximately 157,000 PCS subscribers.
Average revenues per subscriber in the wireless industry have declined
during recent quarters and are expected to continue to gradually decline in the
future. The Company believes this downward trend is the result of the addition
of lower usage customers who utilize wireless service for personal convenience,
security or as backup for their traditional landline telephones. In addition,
the Company expects that revenue per minute will continue to decline as
competition within the wireless industry intensifies. The Company believes the
effect of this trend on the Company's earnings will be mitigated by
corresponding increases in the number of wireless subscribers and the use of
enhanced services that will be offered to PCS subscribers.
As a result of: (i) the significant costs required to build out and
maintain the PCS system, hire and manage the required personnel to operate the
PCS business and market its services; (ii) the subsidization of PCS handsets to
customers; and (iii) the depreciation of PCS equipment and amortization of the
PCS licenses, the Company incurred a net loss of $57.7 million for the three
months ended March 31, 1998. The Company expects to continue incurring
significant operating losses during 1998 and thereafter as it continues to build
out its PCS system, develop its PCS customer base and subsidize the cost of PCS
handsets to its customers.
Minimizing customer attrition, or "churn," becomes a greater challenge
as the subscriber base grows and the wireless marketplace becomes more
competitive. The Company achieved an average monthly churn rate of 1.6% and 3.5%
for its cellular and PCS businesses, respectively, for the three months ended
March 31, 1998. The Company remains focused on improving its PCS churn rate in
the near future through more focused collections efforts, stricter credit
evaluation policies and a proactive customer retention program. However, the
Company expects that ongoing PCS churn rates could be higher than comparable
churn rates for cellular carriers due to the fact that the Company does not
require long-term service contracts. Additionally, the ability of PCS
subscribers to activate service via the phone ("over the air activation")
without any face-to-face contact with Company representatives increases the
Company's susceptibility to subscription fraud, which ultimately results in
churn.
The Company is a member of the North American GSM Alliance (the
"Alliance"), a consortium of eight PCS carriers which offer PCS service using
the Global System for Mobile Communication ("GSM") throughout North America. All
members of the Alliance have executed roaming agreements with each other,
thereby allowing GSM customers to roam throughout many major metropolitan areas
in the United States and Canada. Additionally, the Company has signed several
roaming agreements and expects to sign numerous others with international GSM
carriers to facilitate international roaming.
In late 1998 the Company plans to launch a dual-mode (GSM and analog
cellular) product offering and new, network-based pre-pay plans. The Company is
currently negotiating both in-region and out-of-
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region roaming agreements with cellular carriers to allow the Company's PCS
customers to roam on cellular systems in those areas where a GSM network is not
available. The Company must upgrade its billing system to allow the Company to
bill for dual-mode services and network-based pre-pay plans. Failure by the
Company to successfully launch these new services in a timely manner, to
accurately bill for these services or to enter into dual-mode roaming agreements
with carriers covering a substantial portion of North America where GSM networks
are not available could negatively impact the Company's ability to attract and
retain customers requiring such services.
RESULTS OF OPERATIONS
The following table reflects the composition of the Company's cellular
and PCS service revenue and equipment sales, and related gross margins, as well
as overall operating and other costs and margins. The Company's historical
results of operations, particularly in view of the Maine Disposition and the
start-up costs associated with the Company's PCS business, will not be
comparable with future periods.
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<TABLE>
<CAPTION>
THREE MONTHS ENDED MARCH 31,
--------------------------------------------------------------------------------------
1998 1997
----------------------------------------- ----------------------------------------
COMBINED COMBINED
CELLULAR CELLULAR
AND AND
CELLULAR PCS PCS CELLULAR PCS PCS
------------- ---------- ------------- ----------- ---------- ---------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
SERVICE REVENUE & COST ANALYSIS:
Service revenue
Local customers-
Access revenue .................... $ 1,992 $ 14,202 $ 16,194 $ 4,000 $ 4,540 $ 8,540
Airtime revenue ................... 794 6,750 7,544 1,545 282 1,827
Toll revenue ...................... 52 2,434 2,486 218 673 891
-------- -------- -------- -------- -------- --------
2,838 23,386 26,224 5,763 5,495 11,258
-------- -------- -------- -------- -------- --------
Roamers-
Access and airtime revenue ........ 1,003 573 1,576 1,242 -- 1,242
Toll revenue ...................... 350 260 610 399 -- 399
-------- -------- -------- -------- -------- --------
1,353 833 2,186 1,641 -- 1,641
-------- -------- -------- -------- -------- --------
Other-
Installation and connection ....... 12 1,017 1,029 42 625 667
Other ............................. 131 507 638 292 226 518
-------- -------- -------- -------- -------- --------
143 1,524 1,667 334 851 1,185
-------- -------- -------- -------- -------- --------
Total service revenue ........... 4,334 25,743 30,077 7,738 6,346 14,084
Cost of services ....................... 448 9,101 9,549 1,069 4,359 5,428
-------- -------- -------- -------- -------- --------
Gross margin ........................ $ 3,886 $ 16,642 $ 20,528 $ 6,669 $ 1,987 $ 8,656
======== ======== ======== ======== ======== ========
EQUIPMENT SALES & COST ANALYSIS:
Equipment sales ........................ $ 200 $ 6,446 $ 6,646 $ 240 $ 4,785 $ 5,025
Cost of equipment sales ................ 471 16,954 17,425 840 11,147 11,987
-------- -------- -------- -------- -------- --------
Gross margin ........................ $ (271) $(10,508) $(10,779) $ (600) $ (6,362) $ (6,962)
======== ======== ======== ======== ======== ========
OPERATING MARGIN ANALYSIS:
Total revenues ......................... $ 4,534 $ 32,189 $ 36,723 $ 7,978 $ 11,131 $ 19,109
-------- -------- -------- -------- -------- --------
Operating expense-
Cost of services and equipment sales . 919 26,055 26,974 1,909 15,506 17,415
Operations ........................... 464 9,934 10,398 1,010 2,799 3,809
Selling and marketing ................ 589 11,326 11,915 1,239 3,998 5,237
General and administrative ........... 428 7,702 8,130 913 6,767 7,680
Depreciation ......................... 526 12,409 12,935 951 7,389 8,340
Amortization ......................... -- 2,392 2,392 178 1,000 1,178
-------- -------- -------- -------- -------- --------
Total operating expenses ........ 2,926 69,818 72,744 6,200 37,459 43,659
-------- -------- -------- -------- -------- --------
Operating (loss) income ................ $ 1,608 $(37,629) (36,021) $ 1,778 $(26,328) (24,550)
======== ======== ======== ========
Interest expense (income), net ......... 21,832 4,543
Miscellaneous (income) expense.......... (163) 473
-------- --------
Loss before income taxes................ (57,690) (29,566)
Income tax (benefit) provision.......... -- --
-------- --------
Net loss................................ $(57,690) $(29,566)
======== ========
OTHER SUPPLEMENTAL DATA:
EBITDA ................................. $ -- $ -- $ (15,412) $ -- $ -- $(12,244)
Subscribers at end of period ........... 26,565 156,918 183,483 49,731 34,886 84,617
</TABLE>
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THREE MONTHS ENDED MARCH 31, 1998 COMPARED TO THREE MONTHS ENDED MARCH 31, 1997
The following discussion reflects the Company's results of operations
for its PCS and cellular lines of business. All general corporate costs have
been allocated to the PCS line of business.
Service revenue from local customers increased $15.0 million, or 133%,
for 1998, as compared to 1997. PCS service revenue from local customers
increased $17.9 million, or 326%, over the first quarter of 1997 as a result of
the continued rapid increase in subscribers (to approximately 157,000 at March
31, 1998, from approximately 35,000 at March 31, 1997), which is due in part to
the launch of several new markets during 1997. Cellular service revenue from
local customers decreased $2.9 million, or 51%, primarily as a result of the
Maine Disposition, which occurred during the second quarter of 1997 and the
corresponding reduction in customers (to approximately 27,000 at March 31, 1998,
from approximately 50,000 at March 31, 1997).
The average monthly service revenue per local PCS subscriber was
$57.23 versus $63.52 a year ago. This decrease is primarily attributable to
changes in the Company's rate plan offerings from 1997 to 1998. At March 31,
1997, the majority of the Company's PCS subscribers were participants in a
promotional plan under which they received unlimited monthly airtime for local
calling for a fixed monthly fee of $50 (the "Prestige Partners"). In 1998, the
Company's subscriber base has a choice of multiple rate plan offerings with
fixed monthly access charges ranging from $10 to $90 and monthly unlimited toll
packages from $5 to $15.
During the first quarter of 1998, the Prestige Partners were
transitioned from unlimited, flat rate local service to measured service rate
plans. The Company's average revenue per PCS subscriber increased for the first
quarter of 1998 as compared to the fourth quarter of 1997 primarily due to the
transition of the Prestige Partners. The Company anticipates marginal declines
in future periods primarily due to lower minute usage by new wireless
subscribers and increased price competition among competing wireless carriers.
The Company believes that this is consistent with a general trend in the
wireless industry of declining average monthly revenue per subscriber.
The average monthly service revenue per local cellular subscriber
(excluding roaming revenue and equipment sales) decreased to $37.92 for the
first quarter of 1998, as compared to $39.40 for the same period a year ago. The
Company believes that this decrease is consistent with industry trends over
recent years of declining average monthly revenue per cellular subscriber. The
Company believes that this decline reflects the continuing industry-wide growth
of more convenience-oriented, lower-use subscribers as well as pricing pressures
related to increased competition.
The Company generated $.8 million in PCS roaming revenue during the
first quarter of 1998 as compared to none a year ago. This increase reflects the
success of the previously mentioned roaming agreements with Alliance partners
that became effective during the last five months of 1997. Cellular roaming
revenue decreased $.3 million, or 18%, for the first quarter of 1998, as
compared to the same period in 1997. This decrease is attributable to the Maine
Disposition.
Other service revenue, which includes activation and installation fees,
fees from vertical services and interconnection fees billed to local exchange
carriers ("LECs") for connections to the Company's PCS network, increased $.5
million, or 41%, for the first quarter of 1998, as compared to the same period
in 1997. This increase is due primarily to the activation fees associated with
the addition of new PCS subscribers and the increase in interconnection fees as
a result of increased traffic on the Company's PCS network.
Cost of services includes the cost of: (i) interconnection with LEC
facilities; (ii) direct cell site costs (e.g., property taxes and insurance,
site lease costs and electric utilities); (iii) PCS and cellular roaming
validation (provided by third-party clearinghouses); (iv) long distance toll
costs; (v) cellular cloning and fraud; and (vi) supplementary services (such as
voice mail). PCS cost of services increased $4.7 million or 109% for the first
quarter of 1998, as compared to the same period in 1997. This increase primarily
reflects the interconnection and tower lease costs associated with the
approximately 500 cell sites that have been placed in service since March 31,
1997 in the Company's expanding PCS network. Cellular cost of services decreased
$.6 million, or 58%, in 1998 as compared to 1997 primarily as a result of the
Maine Disposition and a significant decrease in costs associated with cloning
and subscription fraud in the InterCel division during 1998.
The Company generated a negative PCS equipment margin of 163% on $6.4
million of sales during the first quarter of 1998, as compared to a negative
margin of 133% on $4.8 million of sales for the same period in 1997. The
increase in negative PCS equipment margins during the first quarter of 1998
reflects an increase in the percent of handset sales to the Company's agents and
mass merchants where the equipment subsidy is higher. The Company generated a
negative cellular equipment margin of 136% on $.2 million of sales during the
first quarter of 1998, as compared to a negative margin of 250% on $.2 million
of sales for the same period in 1997. This change is primarily attributable to
the Maine Disposition. The Company expects to continue subsidizing the cost of
PCS and cellular handsets to consumers for the foreseeable future.
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<PAGE> 11
Operations costs, which include the costs of maintaining the cellular
and PCS systems, customer service, credit and collections and inventory
management totaled $10.4 million for first quarter of 1998 while PCS operations
costs totaled $9.9 million, a 255% increase over the same period a year ago,
primarily as a result of the costs associated with the Company's significantly
expanded network and a significant increase in the bad debt provision resulting
from the disconnection of non-paying customers. Cellular operations costs
totaled $.5 million for the quarter, a 54% decrease from 1997, which is
attributable primarily to the Maine Disposition.
Selling and marketing costs totaled $11.9 million for the first quarter
of 1998, an increase of $6.7 million, or 128%, from the same period of 1997.
Substantially all of this increase is attributable to ongoing PCS advertising
costs, as well as the costs of all direct and indirect sales channels, including
commissions incurred as a result of the continued rapid growth in the number of
PCS subscribers.
General and administrative costs ("G&A") were $8.1 million for the
first quarter of 1998, an increase of only $.5 million from the same period of
1997. PCS G&A costs, which totaled $7.7 million for the quarter, increased 14%
from the same period of 1997 primarily as a result of an increase in the number
of employees and the related increase in facilities costs at the Company's
corporate and regional administrative offices and information technology center.
The increase in PCS G&A was partially offset by a $.5 million decrease in
cellular G&A resulting from the Maine Disposition.
Depreciation and amortization for the first quarter of 1998 totaled
$15.3 million, a 61% increase over the same period in 1997, and consisted
principally of the depreciation of the cellular and PCS network and the
amortization of PCS licenses. Substantially all of this increase is attributable
to the depreciation associated with the approximately 500 PCS cell sites that
have been placed in service since March 31, 1997 and the amortization costs
associated with the Atlanta MTA license which was placed into service during
July 1997.
Net consolidated interest expense totaled $21.8 for the first quarter
of 1998 as compared to $4.5 million for the same period in 1997. This increase
reflects: (i) the additional interest costs associated with the $300 million
11.125% Senior Notes due June 2007 (the "1997 Notes"); (ii) the lower
availability of funds for investment due to the buildout of the PCS network; and
(iii) a reduction in capitalized interest ($.7 million in 1998 as compared to
$6.7 million in 1997), which is attributable to the completion and placing in
service of substantial portions of the PCS system.
The effective income tax rate for the first quarters of both 1998 and
1997 was 0%. The Company generated a $57.7 million net loss during the first
quarter of 1998 and expects to continue to incur significant operating losses
throughout the remainder of 1998 and beyond. The tax benefit of these operating
losses will not be recognized until management determines that it is more likely
than not that such benefit is realizable.
LIQUIDITY AND CAPITAL RESOURCES
The Company requires significant amounts of capital for funding the
operations and expansion of its PCS business. Total capital expenditures,
including capital expenditures for information technology and the support of the
PCS business, totaled approximately $35 million for the first quarter of 1998.
Costs associated with the PCS system buildout include tower sites, leasehold
improvements, base station and switch equipment and labor expenses related to
construction of sites. The Company currently estimates that capital expenditures
will total approximately $195 million for the remainder of 1998 relating to the
initial buildout of the PCS systems in the Kentucky/Tennessee BTAs and the
continued expansion of its Current PCS Markets and its cellular system. By the
end of 1998, the Company expects to be able to offer PCS services in markets
containing approximately 60% of the population within its PCS markets. Wireless
coverage is expected to extend across most metropolitan areas, certain secondary
cities and major connecting highway corridors within the PCS markets.
Thereafter, based on customer demand and competitive factors, the Company
intends to continue to build out its PCS system to enhance and expand its
coverage. The Company anticipates that it will need to raise additional
financing in the event it decides to make acquisitions of additional licenses or
businesses or expand and enhance the existing PCS coverage in existing PCS
markets.
In May 1997, the Company sold its cellular operations in the State of
Maine to Rural Cellular Corporation ("Rural Cellular"). On the closing date,
Rural Cellular paid the Company $71.8 million in cash and paid $5.4 million into
escrow. On November 3, 1997, the $5.4 million was released from escrow to the
11
<PAGE> 12
Company. In addition, Rural Cellular reimbursed the Company approximately
$250,000 for capital expenditures made on its behalf prior to the closing of the
transaction.
On June 10, 1997, the Company issued $300 million principal amount of
the 1997 Notes (together with the previously issued Senior Discount Notes due
February 2006 and the Senior Discount Notes due May 2006, the "Notes") in a
private offering. In September 1997, the Company exchanged substantially all of
the private 1997 Notes for substantially identical notes that were registered
under the Securities Act of 1933, as amended (the "Securities Act"). The Company
used $89.6 million of the proceeds from the 1997 Notes to purchase and pledge,
for the benefit of the holders of the 1997 Notes, certain U.S. government
securities to provide for the payment of the first six scheduled interest
payments on the 1997 Notes.
On June 5, 1997, pursuant to a Stock Purchase Agreement, dated as of
May 23, 1997, between the Company and The Huff Alternative Income Fund, L.P.
("Huff"), the Company issued to Huff 50,000 shares of nonvoting Series C
Convertible Preferred Stock for an aggregate purchase price of $22.5 million.
Also, on June 5, 1997, pursuant to a Stock Purchase Agreement, dated as of May
23, 1997, between the Company and SCANA Communications, Inc. ("SCANA"), the
Company issued to SCANA 50,000 shares of nonvoting Series D Convertible
Preferred Stock (together with the Series C Convertible Preferred Stock, the
"Preferred Stock"), for an aggregate purchase price of $22.5 million. The Series
C Convertible Preferred Stock and Series D Convertible Preferred Stock become
convertible on December 5, 1998 and March 14, 2002, respectively, at the option
of the holder, into Common Stock at a conversion price of $12.75, subject to
adjustment. Both series of Preferred Stock are redeemable at the option of the
Company, in whole or in part, on a pro rata basis, at a redemption price of $450
per share plus declared and unpaid dividends, anytime subsequent to June 5,
2002. Both series of Preferred Stock have a liquidation preference over the
Common Stock of $450 per share plus declared and unpaid dividends in the event
of a liquidation, dissolution or winding up of the Company. Both series of
Preferred Stock rank, as to dividends, on parity with the Common Stock.
On March 4, 1996, Powertel PCS, Inc., a wholly owned subsidiary of the
Company ("Powertel PCS"), entered into a $125 million credit agreement (the
"Credit Agreement") with Ericsson Inc. ("Ericsson") regarding the purchase of
and vendor financing for PCS equipment and services. On October 31, 1996, March
31, 1997, June 26, 1997 and November 18, 1997, Powertel PCS and Ericsson entered
into amendments to the Credit Agreement, which increased the equipment financing
commitment to $165 million and amended certain other provisions of the Credit
Agreement. During the fourth quarter of 1997, the $165 million commitment under
the Credit Agreement was syndicated to a group of lenders. On December 23, 1997,
the Credit Agreement was amended to increase the financing commitment to $265
million. On February 6, 1998, Powertel PCS and the lenders entered into an
amended and restated Credit Agreement to incorporate the terms and conditions of
the original agreement and the subsequent amendments.
Although the Company is currently unable to predict with certainty the
amount of expenditures that may be made beyond 1998, the Company expects that it
will require additional capital. Sources of additional capital may include
vendor financing, cash flow from operations, public and private equity and debt
financing and asset dispositions by the Company. The Company may also require
additional financing in the event it decides to make acquisitions of additional
licenses or businesses. The extent of additional financing required will
partially depend on the success of the Company's businesses. The Company
currently has no other sources of income or cash flows other than its cellular
and PCS operations and the interest income earned from investing its cash and
the proceeds of the public and private debt and equity offerings which were
completed during 1997 and 1996. There can be no assurance that additional
financing will be available to the Company or, if available, that it can be
obtained on terms acceptable to the Company and within the limitations contained
in the indentures to the Notes, the Credit Agreement or any future financing
arrangements. The restrictions on additional indebtedness under the indentures
to the Notes require the Company to satisfy specified leverage ratios in order
to incur indebtedness; however, they permit the Company and its subsidiaries to
incur an unlimited amount of additional indebtedness to finance the acquisition
of inventory or equipment.
The Company expects to incur significant operating losses and to
generate significant negative cash flow from operating activities in the future,
while it develops and constructs its PCS system and builds a PCS customer base.
Cash interest will not be payable on the 12% Senior Discount Notes due February
2006 and the 12% Senior Discount Notes due May 2006 (collectively, the "Senior
Discount Notes") prior to 2001. Management believes that cash flow from
operations may be insufficient to repay the Notes or any additional financing
that the Company may obtain in full at maturity and that they may need to be
refinanced. There can be no assurance that any such refinancing could be
effected successfully or on terms acceptable to the Company.
12
<PAGE> 13
During the first quarter of 1998, the Company used net cash of $59.0
million for operating activities, as compared to $35.7 million for the same
period in 1997. Operating activities for 1998 included $57.7 million of net
loss, $15.3 million of depreciation and amortization, $14.3 million of bond
accretion on the Senior Discount Notes and $31.7 million related to changes in
assets and liabilities.
Cash used in investing activities was $41.5 million for the first
quarter of 1998, as compared to $23.2 million provided from investing activities
for the same period in 1997. Investing activities for 1998 consisted primarily
of capital expenditures totaling $34.7 million and a decrease in accrued
construction costs of $5.2 million (both primarily related to the buildout of
the PCS system and support systems).
Cash provided from financing activities was $15.0 million for the first
quarter of 1998, as compared to $34.5 million for the same period in 1997.
Financing activities for 1998 consisted primarily of borrowings of $14.7 million
under the Credit Agreement.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1997, the FASB issued Statement of Financial Accounting
Standards No. 130 ("FAS 130"), "Reporting Comprehensive Income," and Statement
of Financial Accounting Standards No. 131 ("FAS 131"), "Disclosures About
Segments of an Enterprise and Related Information." Both statements are
effective for fiscal years beginning after December 15, 1997. FAS 130 did not
have an impact on the Company, and FAS 131 is not anticipated to have a material
impact on the Company's financial statements.
In April 1998, the American Institute of Certified Public Accountants
issued Statement of Position 98-5 ("SOP 98-5"), "Reporting on the Costs of
Start-Up Activities," which is effective for fiscal years beginning after
December 15, 1998. SOP 98-5 requires entities to expense certain start-up costs
and organization costs as they are incurred. The Company does not anticipate
that this statement will have an impact on its financial statements.
OTHER
The Year 2000 issue is the result of potential problems with computer
systems or any equipment with computer chips that use dates where the date has
been stored as just two digits (e.g., "97" for 1997). On January 1, 2000, any
clock or date recording mechanism including date sensitive software which uses
only two digits to represent the year may recognize a date using "00" as the
year 1900 rather than the year 2000. This could result in a system failure or
miscalculations causing disruption of operations, including among other things,
a temporary inability to process transactions, send invoices or engage in
similar activities.
The Company is currently working to address and resolve this issue with
respect to its computerized information systems. The Company is also discussing
the Year 2000 issue with its significant suppliers to determine the extent to
which the Company is vulnerable to those third parties' failure to remediate
their own Year 2000 issues. The Company presently believes that with conversions
to new systems and modifications to existing software the Year 2000 issue can be
mitigated. The Company is currently utilizing and will continue to utilize
internal and external resources to implement, reprogram or replace and test
software and related assets affected by the Year 2000 issue. The Company expects
to complete the majority of its efforts in this area by early 1999 leaving
adequate time to assess and correct any significant issues that may materialize.
However, if such modifications and conversions are not made, or are not timely,
or if systems from third parties on which the Company's systems rely will not be
converted on time or if such third parties fail to convert or if such
conversions are incompatible with the Company's systems, the Year 2000 issue
could have a material adverse impact on the Company's business, financial
condition and results of operations.
Management does not believe that the costs to resolve its Year 2000
issues will be material to the Company. The costs of the project and the
timetable in which the Company plans to complete the Year 2000 compliance
requirements are based on management's best estimates, which were derived
utilizing numerous assumptions of future events including the continued
availability of certain resources, third party modification plans and other
factors. However, there can be no assurance that these estimates will be
achieved and actual
13
<PAGE> 14
results could differ materially from these plans. Specific factors that might
cause such material differences include, but are not limited to, the
availability and cost of personnel trained in this area, the ability to locate
and correct all relevant computer codes and similar uncertainties.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This report contains statements which constitute forward-looking
statements within the meaning of Section 27A of the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). These
statements appear in a number of places in this Report and include all
statements which are not historical facts and which relate to the intent, belief
or current expectations of the Company, its directors or its officers with
respect to, among other things: (i) the Company's financing plans, including the
Company's ability to obtain financing in the future; (ii) trends affecting the
Company's financial condition or results of operations; (iii) the Company's
growth strategy (including the Company's anticipated network buildout) and
operating strategy; (iv) the Company's anticipated capital needs and anticipated
capital expenditures; and (v) projected outcomes and effects on the Company of
litigation and investigations concerning the Company. Investors are cautioned
that any such forward-looking statements are not guarantees of future
performance and involve risks and uncertainties, and that actual results may
differ materially from those projected in forward-looking statements as a result
of: (i) factors affecting the availability, terms and cost of capital, risks
associated with the selection of the Company's PCS digital protocol and PCS
system implementation, competitive factors and pricing pressures, general
economic conditions, the failure of the market demand for the Company's products
and services to be commensurate with management's expectations or past
experience, the impact of present or future laws and regulations on the
Company's business, changes in operating expenses or the failure of operating
and buildout expenses to be consistent with management's expectations and the
difficulty of accurately predicting the outcome and effect of certain matters,
such as matters involving litigation and investigations; (ii) various factors
discussed herein; and (iii) those factors discussed in detail in the Company's
filings with Securities and Exchange Commission (the "Commission"), including
the "Risk Factors" section of the Company's Registration Statement on Form S-4
(Registration number (333-31399), as declared effective by the Commission on
July 31, 1997.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISKS
Not applicable.
14
<PAGE> 15
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Reference is made to the Company's Form 10-K for the year ended
December 31, 1997 (as filed with the Commission on March 24, 1998) for a
discussion of certain legal proceedings. In addition to the legal proceedings
discussed therein, the Company is subject from time to time to legal proceedings
that arise out of the Company's business operations, including in connection
with service, billing and collection matters. Although the actual damages sought
in such legal proceedings are generally small, certain of these legal
proceedings may seek punitive damages and/or attempt to be certified as class
actions. While the Company currently does not expect such legal proceedings to
have a material adverse effect on the Company, no assurance can be given that
the resolution of any or all of such legal proceedings will not have a material
adverse effect on the Company's business, financial condition or results of
operations.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(A) EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- ------ -------------------
<S> <C>
10(a) Amended and Restated Credit Agreement dated as of February 6,
1998, among Powertel PCS, Inc., the Banks and Other Financial
Institutions Listed on the Signature Pages thereof, Ericsson
Inc., as Agent, and National Westminster Bank PLC, as
Administrative Agent for the Lenders. * -
27 Financial Data Schedule (for SEC use only).
</TABLE>
- ---------------------------------
* Confidential treatment has been requested for certain confidential
portions of this exhibit pursuant to Rule 24(b)(2) under the Exchange
Act. In accordance with Rule 24(b)(2), these confidential portions have
been omitted from this exhibit and filed separately with the
Commission.
- - The Registrant agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Commission upon request, as provided in Item
601(b)(2) of Regulation S-K.
(B) REPORTS ON FORM 8-K.
None.
15
<PAGE> 16
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this Report to be signed on its behalf by
the undersigned thereunto duly authorized.
POWERTEL, INC.
May 12, 1998 /s/ Allen E. Smith
- ------------ -------------------------------------------
Allen E. Smith
President and Chief Executive Officer
May 12, 1998 /s/ Fred G. Astor, Jr.
- ------------ -------------------------------------------
Fred G. Astor, Jr.
Executive Vice President and Chief
Financial Officer
(Chief Accounting Officer)
16
<PAGE> 17
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- ------ -------------------
<S> <C>
10(a) Amended and Restated Credit Agreement dated as of February 6,
1998, among Powertel PCS, Inc., the Banks and Other Financial
Institutions Listed on the Signature Pages thereof, Ericsson
Inc., as Agent, and National Westminster Bank PLC, as
Administrative Agent for the Lenders. * -
27 Financial Data Schedule (for SEC use only).
</TABLE>
- ---------------------------------
* Confidential treatment has been requested for certain confidential
portions of this exhibit pursuant to Rule 24(b)(2) under the Exchange
Act. In accordance with Rule 24(b)(2), these confidential portions have
been omitted from this exhibit and filed separately with the
Commission.
- - The Registrant agrees to furnish supplementally a copy of any omitted
schedule or exhibit to the Commission upon request, as provided in Item
601(b)(2) of Regulation S-K.
<PAGE> 1
EXHIBIT 10(A)
CONFIDENTIAL TREATMENT REQUESTED BY POWERTEL, INC.
$265,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 6, 1998
Among
POWERTEL PCS, INC.,
as Borrower,
THE BANKS AND OTHER
FINANCIAL INSTITUTIONS
LISTED ON THE
SIGNATURE PAGES HEREOF,
as Initial Lenders,
ERICSSON INC.,
as Agent,
and
NATIONAL WESTMINSTER BANK PLC,
as Administrative Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms 2
1.02. Computation of Time Periods 14
1.03. Accounting Terms 14
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. Advances 15
2.02. Making the Advances 16
2.03. Repayment of Advances 17
2.04. Prepayments 17
2.05. Interest 18
2.06. Increased Costs, Etc. 19
2.07. Payments and Computations 21
2.08. Tax Forms 22
2.09. Sharing of Payments, Etc. 23
2.10. Use of Proceeds 23
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
3.01. Conditions Precedent to Effectiveness 24
3.02. Conditions Precedent to Each Borrowing 25
3.03. [Intentionally Omitted] 26
3.04. Determinations Under Sections 3.01 and 3.05. 26
3.05. Conditions Precedent to Series B Advances 26
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower 28
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants 33
5.02. Negative Covenants 35
5.03. Reporting Requirements 37
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default 39
ARTICLE VII
THE AGENT AND THE ADMINISTRATIVE AGENT
7.01. Authorization and Action 43
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
7.02. Agent's and Administrative Agent's Reliance, Etc. 43
7.03. Agent, Administrative Agent and Their Affiliates 44
7.04. Lender Credit Decision 44
7.05. Indemnification of the Agent and the Administrative Agent 44
7.06. Successor Agents and Administrative Agents 45
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. 46
8.02. Notices, Etc. 46
8.03. No Waiver; Remedies 47
8.04. Costs and Expenses 47
8.05. Right of Set-off 48
8.06. Binding Effect 48
8.07. Assignments and Participations 48
8.08. Execution in Counterparts 51
8.09. Jurisdiction, Etc. 51
8.10. Governing Law 52
8.11. Waiver of Jury Trial 52
8.12. Confidentiality 52
8.13. Modification of Financial Tests 52
</TABLE>
SCHEDULES
Schedule 2.01(a) - Series A Commitments
Schedule 2.01(b) - Series B Commitments
Schedule 4.01(a) - Stock Ownership of License Subsidiaries
Schedule 4.01(b) - Subsidiaries of Powertel
Schedule 4.01(j) - ERISA Schedule
Schedule 4.01(s) - Material Contracts
Schedule 6.01(o) - Minimum PCS Revenue
Schedule 6.01(q) - Net Worth
Schedule 6.01(s) - Subscribers
Schedule 6.01(t) - Ratio of Consolidated EBITDA to Consolidated Debt Service
Schedule 6.01(u) - Ratio of Consolidated Debt to Annualized Consolidated EBITDA
Schedule 6.01(v) - Maximum Aggregate Capital Expenditures
ANNEXES
Annex A-1
Annex A-2
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Borrower Security Agreement
Exhibit D - Form of Subsidiary Security Agreement
Exhibit E - Form of Parent Guaranty
<PAGE> 4
Exhibit F - Form of Subsidiary Guaranty
Exhibit G - Form of Assignment Agreement
Exhibit H - Form of Acknowledgment and Consent
<PAGE> 5
AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of February 6, 1998
AMENDED AND RESTATED CREDIT AGREEMENT among Powertel PCS,
Inc., a Delaware corporation (formerly known as InterCel PCS Services, Inc. and
Powertel, Inc.) (the "Borrower"), the banks and other financial institutions
listed on the signature pages hereof (collectively, the "Initial Lenders"),
Ericsson Inc. ("Ericsson"), as agent (together with any successor appointed
pursuant to Article VII, the "Agent") for the Lenders (as hereinafter defined),
and National Westminster Bank Plc, as administrative agent (together with any
successor appointed pursuant to Article VII, the "Administrative Agent") for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower has entered into a Credit Agreement dated as
of March 4, 1996, as amended by Amendment No. 1 to the Credit Agreement dated as
of October 31, 1996, by Amendment No. 2 to the Credit Agreement dated as of
March 31, 1997, by Amendment No. 3 to the Credit Agreement dated as of June 26,
1997, by Amendment No. 4 to the Credit Agreement dated as of November 18, 1997,
and by Amendment No. 5 to the Credit Agreement dated as of December 23, 1997 (as
so amended, the "Original Credit Agreement"), with the Initial Lenders referred
to therein and the Agent. The Borrower has requested that the Initial Lenders
amend and restate the Original Credit Agreement on the terms and conditions set
forth in this Agreement and the Initial Lenders have so agreed.
(2) Powertel, Inc. is a leading provider of wireless
telecommunications services in the southeastern United States and has acquired
the licenses for the wireless personal communications services ("PCS") in the
major trading areas ("MTA's") of Jacksonville, Florida; Memphis,
Tennessee/Jackson, Mississippi; Birmingham, Alabama; and Atlanta, Georgia, and
in the BTA Markets (as hereinafter defined).
(3) The Borrower and Ericsson have entered into a Purchase
Agreement dated as of March 4, 1996 (as amended, supplemented or otherwise
modified from time to time, the "Equipment Purchase Agreement") pursuant to
which the Borrower has agreed, among other things, to purchase equipment and
services from Ericsson for these MTA's pursuant to the terms of the Equipment
Purchase Agreement (the "Ericsson Equipment").
(4) In connection with such purchases by the Borrower as
contemplated by the Equipment Purchase Agreement, the Borrower has requested,
and the Initial Lenders have agreed to provide the financing as contemplated
herein on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
<PAGE> 6
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Acknowledgment and Consent" means an Acknowledgment and
Consent in substantially the form attached hereto as Exhibit H.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with The
Chase Manhattan Bank in New York City, New York.
"Advance" or "Advances" means one or more Series A Advances,
Series B Advances or any combination thereof.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent" has the meaning specified in the recital of parties to
this Agreement.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Eurodollar Lending Office.
"Applicable Margin" means ***.
"Assignment Agreement" means an Assignment Agreement in
substantially the form attached hereto as Exhibit G.
"Atlanta MTA" means the MTA for Atlanta, Georgia.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
- ---------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
<PAGE> 7
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate; ***
(b) ***.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.05(a)(ii).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower Security Agreement" means the security agreement
entered into between Borrower and the Agent for the benefit of the
Lenders, substantially in the form attached hereto as Exhibit C.
"Borrowing" means a borrowing consisting of either Series A
Advances or Series B Advances simultaneously made by the Lenders.
"BTA Equipment" means any equipment or services purchased by
the Borrower under the Equipment Purchase Agreement for use in a BTA
Market.
"BTA Markets" means (i) the Basic Trading Areas ("BTAs") of
Bowling Green-Glasgow, Kentucky; Clarksville, Tennessee-Hopkinsville,
Kentucky; Cookeville, Tennessee; Corbin, Kentucky; Evansville, Indiana;
Knoxville, Tennessee; Lexington, Kentucky; Louisville, Kentucky;
Madisonville, Kentucky; Nashville, Tennessee; Owensboro, Kentucky;
Paducah-Murray-Mayfield, Kentucky; and Somerset, Kentucky; and (ii)
such other BTAs as from time to time may be agreed upon by the Required
Lenders.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York and on which
dealings are carried on in the London interbank market.
"Capital Expenditures" means any payments which are made by a
Person for, or in connection with, the rental, lease, purchase,
construction or use of any real or personal property the value or cost
of which, under GAAP, should be capitalized and appear on such Person's
balance sheet in the category of property, plant or equipment, without
regard to the manner in which such payments or the instrument pursuant
to which they are made are characterized by such Person or any other
Person.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is subject to any Lien
in favor of the Agent for the benefit of the Lenders.
"Collateral Documents" means the Borrower Security Agreement
and the Subsidiary Security Agreements.
- ---------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
<PAGE> 8
"Commitment" means, with respect to any Lender, as of any date
of determination, such Lender's aggregate (a) Series A Commitment and
(b) Series B Commitment, collectively.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Conversion", "Convert" and "Converted" each refers to a
conversion of Eurodollar Rate Advances into Base Rate Advances pursuant
to Section 2.06(c) and (d).
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"Current Liabilities" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year from such date) and (b) all other items
(including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 60 days incurred in
the ordinary course of such Person's business), (c) all Obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any capital stock of or other ownership or profit
interest in such Person or any other Person or any warrants, rights or
options to acquire such capital stock, valued, in the case of
Redeemable Preferred Stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(h) all Obligations of such Person in respect of Hedge Agreements, (i)
all Debt of others referred to in clauses (a) through (h) above or
clause (j) below guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (i) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt, (ii)
to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (iii) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such
services are rendered)
<PAGE> 9
or (iv) otherwise to assure a creditor against loss, and (j) all Debt
referred to in clauses (a) through (i) above of another Person secured
by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property
(including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable
for the payment of such Debt.
"Debt Service" means, for any period, the sum of all principal
payments scheduled to be made by the Borrower in respect of Debt during
such period plus Interest Expense for such period.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, without duplication, of (a) net income (or net
loss), (b) interest expense, (c) income tax expense, (d) depreciation
expense and (e) amortization expense, in each case of Powertel and its
Subsidiaries, determined in accordance with GAAP for such period.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender or of Telefonaktiebolaget LM Ericsson; (iii) a commercial bank
organized under the laws of the United States, or any State thereof,
and having total assets in excess of $500,000,000; (iv) a savings and
loan association or savings bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$500,000,000; (v) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic
Cooperation and Development or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow, or a political subdivision of any such
country, and having total assets in excess of $500,000,000, so long as
such bank is acting through a branch or agency located in the country
in which it is organized or another country that is described in this
clause (v); (vi) a finance company, insurance company or other
financial institution or fund (whether a corporation, partnership,
trust or other entity) that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and having total assets in excess of $500,000,000; (vii)
Ericsson Finans AB or any other finance company or financial
institution engaged in making, purchasing or otherwise investing in
loans extended by Ericsson or an Affiliate of Ericsson; (viii) a
partnership, trust or other entity that is engaged in making,
purchasing or otherwise investing in, or monetizing, commercial loans
and (ix) any other Person approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that neither the Borrower nor any Affiliate of the
Borrower shall qualify as an Eligible Assignee under this definition.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or agency interpretation, policy or
guidance relating to pollution or protection of the environment,
health, safety or natural resources, including, without limitation,
those relating to the use, handling, transportation, treatment,
storage, disposal, release or discharge of hazardous materials.
<PAGE> 10
"Equipment" means all equipment referred to in Section 1(a) of
the Borrower Security Agreement and the Subsidiary Security Agreements.
"Equipment Purchase Agreement" has the meaning specified in
the third recital to this Agreement.
"Ericsson" has the meaning specified in the introductory
paragraph to this Agreement.
"Ericsson Equipment" means, collectively, (a) the equipment
and services defined as Ericsson Equipment in the third recital to this
Agreement, and (b) any other equipment or services to be provided by
Ericsson from time to time under the Equipment Purchase Agreement,
including without limitation any BTA Equipment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of a Lender as such Lender may from time to time specify in
writing to the Borrower and the Administrative Agent.
"Eurodollar Rate" means for any Interest Period, the rate of
interest per annum equal to the rate per annum obtained by dividing (a)
the rate for deposits in U.S. dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period (i)
appearing on page 3750 of the Telerate service as of 11:00 a.m. (London
time) two (2) business days prior to the beginning of such Interest
Period; provided, however, that in the event such rate does not appear
on page 3750 of the Telerate service (or otherwise on such service),
such rate shall be the rate per annum equal to the rate at which
deposits in U.S. dollars are offered by the principal office of
Citibank, N.A. in London, England to prime banks in the London
interbank market at 11:00 a.m. (London time) two (2) business days
before the first day of such Interest Period (rounded upward to the
nearest 1/16th of 1%), in each case for a period equal to the Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.05(a)(i).
"Eurodollar Rate Reserve Percentage" means the reserve
percentage applicable two Business Days before the first day of a
calendar quarter under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any
<PAGE> 11
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to three months.
"Events of Default" has the meaning specified in Section 6.01.
"Facility" means the Series A Facility or the Series B
Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Borrower and its
Consolidated Subsidiaries ending on December 31 in any calendar year.
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means Powertel, each Operating Subsidiary and each
License Subsidiary.
"Guaranties" means each of the Parent Guaranty and the
Subsidiary Guaranties.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Initial Lenders" has the meaning specified in the
introductory paragraph to this Agreement.
"Interest Expense" means, for any period, the aggregate amount
of interest, commitment, agency and other fees paid or required to be
paid in cash by Powertel and its Subsidiaries in respect of all Debt.
"Interest Period" means a three-month period.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
<PAGE> 12
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07.
"License Subsidiary" means each of Powertel Jacksonville
Licenses, Inc., Powertel Memphis Licenses, Inc., Powertel Birmingham
Licenses, Inc., Powertel Atlanta Licenses, Inc., Powertel Nashville
Licenses, Inc., Powertel Knoxville Licenses, Inc., Powertel Kentucky
Licenses, Inc. and any other Person established solely for the purpose
of holding the Licenses now or hereafter acquired or owned by the
Borrower and its Subsidiaries, which Person shall be a wholly owned
Subsidiary of the Borrower.
"Licenses" means each of the PCS licenses for an MTA or a BTA
issued by the Federal Communications Commission to the Borrower and its
Subsidiaries.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (a) this Agreement, (b) the Notes (c)
the Guaranties and (d) the Collateral Documents, in each case as
amended or otherwise modified from time to time.
"Loan Parties" means the Borrower and each Guarantor.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, financial condition, operations, properties or prospects
of the Borrower and its Subsidiaries taken as a whole.
"MTA" has the meaning specified in the second recital to this
Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, financial condition, operations, properties or
prospects of the Borrower and its Subsidiaries taken as a whole, (b)
the rights and remedies of the Agent or any Lender under any Loan
Document or (c) the ability of any Loan Party to perform its
Obligations under any Loan Document to which it is a party.
"Material Contract" means each contract of the Borrower and
its Subsidiaries that Powertel or any of its Subsidiaries files with,
or otherwise discloses to, the Securities and Exchange Commission or
any governmental authority that may be substituted therefore or with
any national securities exchange.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
<PAGE> 13
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset by any Person, the aggregate
amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (i)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions and (ii) the amount of taxes payable in connection with or
as a result of such transaction and (iii) the amount of any Debt
secured by a Lien on such asset that, by the terms of such transaction,
is required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at
the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of such Person or any Loan Party or any Affiliate of any
Loan Party and are properly attributable to such transaction or to the
asset that is the subject thereof. Notwithstanding the foregoing, this
definition of Net Cash Proceeds shall not apply to or include any
consideration received in connection with (a) any sale, lease, transfer
or other disposition of any assets in the ordinary course of business
and (b) the sale or issuance of any Debt or capital stock or other
ownership or profit interest, any securities convertible into or
exchangeable for capital stock or other ownership or profit interest or
any warrants, rights, options or other securities to acquire capital
stock or other ownership or profit interest by any Person.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A hereto,
evidencing the indebtedness of the Borrower to such Lender resulting
from the Advance made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f).
<PAGE> 14
"Operating Subsidiaries" means each of Powertel/Jacksonville,
Inc., Powertel/Memphis, Inc., Powertel/Birmingham, Inc.,
Powertel/Atlanta, Inc., Powertel/Kentucky, Inc. and any other Person
now or hereafter established or acquired as a Subsidiary of the
Borrower to operate in a BTA Market.
"Original Credit Agreement" has the meaning specified in the
first recital to this Agreement.
"Parent Guaranty" means the guaranty executed by Powertel in
favor of the Agent for the benefit of the Lenders, substantially in the
form attached hereto as Exhibit E, as amended, supplemented or
otherwise modified from time to time.
"PCS" has the meaning set forth in the second recital to this
Agreement.
"Permitted Liens" means: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than ***
days; (c) pledges or deposits to secure obligations under workers'
compensation laws or similar legislation or to secure public or
statutory obligations; and (d) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Powertel" means Powertel, Inc., a Delaware corporation
(formerly known as InterCel, Inc.) and the holder of all of the
outstanding capital stock of the Borrower.
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Prospectus" means (a) the prospectus dated February 1, 1996
delivered in connection with the issuance of common stock of Powertel
and (b) the prospectus dated February 1, 1996 delivered in connection
with the 12% Senior Discount Notes Due 2006 of Powertel.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (b) is redeemable at the
option of the holder.
- ---------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
<PAGE> 15
"Register" has the meaning specified in Section 8.07(c).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Required Lenders" means at any time Lenders owed or holding
at least 66-2/3% of the sum of (a) the aggregate principal amount of
the Advances outstanding at such time and (b) the aggregate unused
Commitments at such time.
"Responsible Officer" means the chief financial officer or
treasurer of any Loan Party.
"Restricted Subsidiary" means a Subsidiary that is "Restricted
Subsidiary" for the purposes of the Indenture dated as of February 7,
1996 between Powertel, Inc. and Bankers Trust Company as in effect on
the date hereof.
"Revenue" means, for any period, the operating revenue for the
PCS services of Powertel and its Subsidiaries consisting of operating
revenue derived from (a) monthly access charges for such services, (b)
the air time charges for such services, (c) so-called "roaming
revenue", (d) toll revenue, (e) operator services revenues, (f) the
installation and connection of equipment, (g) the sale of PCS equipment
and (h) all other revenues generated from the PCS network of the
Borrower and the Operating Subsidiaries and infrastructure related
thereto.
"Secured Obligations" has the meaning specified in the
Collateral Documents.
"Secured Parties" means the Administrative Agent, the Agent
and the Lenders.
"Series A Advance" means an Advance made by a Lender to the
Borrower pursuant to Section 2.01(a) hereof, and "Series A Advances"
means such Advances of all Lenders in the aggregate.
"Series A Commitment" means the commitment of a Lender to make
Series A Advances pursuant to Section 2.01(a) hereof, and "Series A
Commitments" means such commitments of all Lenders in the aggregate.
"Series A Facility" means, at any time, the aggregate amount
of the Series A Commitments at such time.
"Series B Advance" means an Advance made by a Lender to the
Borrower pursuant to Section 2.01(b) hereof, and "Series B Advances"
means all such Advances of all Lenders in the aggregate.
"Series B Commitment" means the commitment of a Lender to make
Series B Advances pursuant to Section 2.01(b) hereof, and "Series B
Commitments" means such commitments of all Lenders in the aggregate.
<PAGE> 16
"Series B Facility" means, at any time, the aggregate amount
of the Series B Commitments at such time.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Subscriber" means, at any time, those subscribers to the PCS
services of the Borrower and the Operating Subsidiaries for (i) the
MTAs of Jacksonville, Florida; Memphis, Tennessee/Jackson, Mississippi;
Birmingham, Alabama; (ii) the Atlanta MTA; and (iii) the BTA Markets
(a) who have activated a PCS telephone number for use on the Borrower's
or an Operating Subsidiary's PCS network for such services, (b) who are
not ninety days or more past due with respect to any amounts owed to
the Borrower or such Operating Subsidiaries and (c) who have not given
any notice of termination.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate, in each case, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Subsidiary Guaranties" means each of the guaranties executed
by each Operating Subsidiary and License Subsidiary in favor of the
Agent for the benefit of the Lenders, substantially in the form
attached hereto as Exhibit F, in each case as amended, supplemented or
otherwise modified from time to time.
<PAGE> 17
"Subsidiary Security Agreements" means each of the security
agreements executed by each of Operating Subsidiaries in favor of the
Agent for the benefit of the Lenders, substantially in the form
attached hereto as Exhibit D, in each case as amended, supplemented or
otherwise modified from time to time.
"Termination Date" means the earlier of the fifth anniversary
of the date of this Agreement and the date of termination in whole of
the Commitments pursuant to Section 6.01.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
<PAGE> 18
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. Advances. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties of the
Borrower herein set forth, each Lender hereby severally agrees to make the
Advances described in subsections 2.01(a) and 2.01(b):
(a) Series A Advances. Each Lender having a Series A
Commitment severally agrees, subject to the terms and conditions
hereinafter set forth, to make Series A Advances to the Borrower from
time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount not to exceed such
Lender's Series A Commitment at such time. The original amount of each
Lender's Series A Commitment is set forth opposite its name on Schedule
2.01(a) annexed hereto and the aggregate original amount of the Series
A Commitments is $165,000,000; provided that the Series A Commitment of
each Lender shall be adjusted to give effect to any assignments of the
Series A Commitments pursuant to Section 8.07 hereof; and provided
further that the amount of each Lender's Series A Commitment shall be
reduced by the amount of each Series A Advance made by such Lender.
Each Borrowing made under this Section 2.01(a) shall consist of Series
A Advances made simultaneously by the Lenders having Series A
Commitments ratably according to their Series A Commitments. Amounts
borrowed under this Section 2.01(a) and repaid or prepaid may not be
reborrowed.
(b) Series B Advances. Each Lender having a Series B
Commitment severally agrees, subject to the terms and conditions
hereinafter set forth, to make Series B Advances to the Borrower from
time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount not to exceed such
Lender's Series B Commitment at such time. The original amount of each
Lender's Series B Commitment is set forth opposite its name on Schedule
2.01(b) annexed hereto and the aggregate original amount of the Series
B Commitment is $100,000,000; provided that the Series B Commitment of
each Lender shall be adjusted to give effect to any assignments of the
Series B Commitments pursuant to Section 8.07 hereof; and provided
further that the amount of each Lender's Series B Commitment shall be
reduced by the amount of each Series B Advance made by such Lender.
Each Borrowing under this Section 2.01(b) shall consist of Series B
Advances made simultaneously by the Lenders having Series B Commitments
ratably according to their Series B Commitments. Amounts borrowed under
this Section 2.01(b) and repaid or prepaid may not be reborrowed.
Notwithstanding anything herein to the contrary, no Series B Advances
shall be made hereunder until the full amount of all Advances available
under the Series A Commitments have been drawn. The Series B
Commitments and the Series B Advances thereunder shall be pari passu
with the Series A Commitments and the Series A Advances, respectively,
and all Commitments and Advances shall be subject to and made in
accordance with the terms of this Agreement.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be
in a minimum amount of $5,000,000 and shall be made on notice, given not later
than 11:00 A.M.
<PAGE> 19
(New York City time) on the third Business Day prior to the date of the proposed
Borrowing to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telex or telecopier. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be deemed a request by the Borrower to finance the
payment of an invoice or invoices delivered by Ericsson pursuant to the
Equipment Purchase Agreement. Each Notice of Borrowing shall be by telephone,
confirmed immediately in writing, or telex or telecopier, in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) aggregate amount of such Borrowing, and (iii) identifying the
invoices to be financed with the proceeds of such Borrowing; provided that if
the Borrower elects to pay an invoice and subsequently finance such invoice with
a Borrowing, such Borrowing must occur within ninety days of the date of the
invoice being financed. Each Lender shall, before 11:00 A.M. (New York City
time) on the date of such Borrowing, make available for the account of its
Applicable Lending Office to the Administrative Agent at the Administrative
Agent's Account, in same day funds, such Lender's ratable portion of such
Borrowing in accordance with the respective Commitments of such Lender and the
other Lenders. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article III, the
Administrative Agent will make such funds available to the Borrower as directed
in the Notice of Borrowing. The Borrower hereby expressly agrees that the
obligation of the Borrower to make any payments under this Agreement shall be
unconditional and absolute irrespective of any claim, set-off, defense or other
right that the Borrower may have at any time under the Equipment Purchase
Agreement and the rights and obligations of the Borrower thereunder are separate
and independent from this Agreement.
(b) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. The Borrower shall indemnify each Lender against any loss, cost
or expense incurred by such Lender as a result of any failure to fulfill on or
before the date specified in such Notice of Borrowing for such Borrowing the
applicable conditions set forth in Article III, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
(c) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay or pay to the Administrative
Agent forthwith on demand such corresponding amount and to pay interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid or paid to the Administrative Agent, at the
interest rate applicable at such time under Section 2.05 to Advances comprising
such Borrowing. If such Lender shall pay to the Administrative Agent such
corresponding amount, such amount so paid shall constitute such Lender's Advance
as part of such Borrowing for all purposes.
<PAGE> 20
(d) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Repayment of Advances. (a) The Borrower shall
repay to the Administrative Agent, for the ratable account of the Lenders, in
*** provided, however, that the last such installment shall be an amount
necessary to repay in full the unpaid principal amount of all Advances.
(b) The aggregate amount of the Advances made in each calendar
year shall have the same amortization schedule, as contemplated in subsection
(a) above. If requested by any Lender from time to time, the Borrower agrees to
execute (i) a Note, in form and substance substantially the same as Exhibit A
hereto, in the aggregate amount of the Advances made in any calendar year and
reflecting the specific amortization schedule for such Advances and (ii) an
additional Note or Notes in the aggregate amount of any other Advances payable
to such Lenders and such Lender's unused Commitment. Upon the delivery of such
Notes, the Lender shall surrender to the Borrower the Note payable to such
Lender which had included the amount of the Advances made in such calendar year.
SECTION 2.04. Prepayments. (a) Optional. The Borrower may,
upon at least three Business Days' notice to the Administrative Agent stating
the proposed date and aggregate principal amount of the prepayment, and if such
notice is given the Borrower shall, prepay at the end of the calendar quarter
the outstanding aggregate principal amount of the Advances in whole or ratably
in part, together with accrued interest to the date of such prepayment on the
aggregate principal amount prepaid. Each such prepayment (i) shall be applied
pro rata between the outstanding Series A Advances and Series B Advances; and
(ii) shall be applied to reduce the scheduled principal installments of such
Advances due pursuant to Section 2.03 hereof (x) first in inverse order of
maturity to installments due after December 31, 2005 to the full extent thereof
and (y) second ratably to installments due on or before December 31, 2005.
- ---------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
<PAGE> 21
(b) Mandatory. (i) No later than the first Business Day
following the date of receipt by the Borrower or any of its Subsidiaries of any
Net Cash Proceeds in excess of $5,000,000 in any 12 consecutive month period
("Excess Net Cash Proceeds"), the Borrower shall prepay the Advances in an
aggregate amount equal to such Excess Net Cash Proceeds. Notwithstanding the
foregoing, as long as no Default shall have occurred and be continuing, the
Borrower shall not be required to make any mandatory prepayment pursuant to this
Subsection 2.04(b)(i) to the extent the Excess Net Cash Proceeds are reinvested
in productive assets used by the Borrower and its Subsidiaries in the conduct of
its business within 180 days from the date of receipt thereof. If upon receipt
of any Excess Net Cash Proceeds, the Borrower elects to reinvest the Excess Net
Cash Proceeds as permitted under this Subsection 2.04(b)(i), (1) no later than
the first Business Day following receipt of such Excess Net Cash Proceeds, the
Borrower shall deliver an officers' certificate to the Administrative Agent
demonstrating the derivation of such Excess Net Cash Proceeds and certifying the
portion of such proceeds which the Borrower elects to reinvest in productive
assets and certifying that no Default shall have occurred and be continuing and
(2) upon the expiration of 180 days after the date of receipt of the Excess Net
Cash Proceeds certified as being scheduled for reinvestment, the Borrower shall
deliver to the Administrative Agent an officers' certificate indicating the
amount of Excess Net Cash Proceeds reinvested as of such date, the assets in
which such Excess Net Cash Proceeds have been reinvested, and the amount of any
remaining Excess Net Cash Proceeds which shall be applied to prepay the Advances
as set forth in this Subsection 2.04(b)(i).
(ii) The Borrower shall prepay (A) all outstanding Advances,
upon the termination of the Equipment Purchase Agreement as a result of a
default thereunder by the Borrower and (B) all or a portion of the Advances
which corresponds to the amount of any refund required to be made by Ericsson in
accordance with the terms of the Equipment Purchase Agreement.
(iii) All prepayments under this Section 2.04(b) shall be made
together with accrued interest to the date of such prepayment on the aggregate
principal amount prepaid and shall be applied pro rata between the outstanding
Series A Advances and Series B Advances and shall be applied to reduce the
scheduled principal installments of such Advances due pursuant to Section 2.03
hereof in inverse order of maturity.
SECTION 2.05. Interest. (a) Scheduled Interest. (i) The
Borrower shall pay interest on the unpaid principal amount of each Advance owing
to each Lender from the date of such Advance until such principal amount shall
be paid in full, at a rate per annum equal at all times during each Interest
Period to the sum of (A) the then applicable Eurodollar Rate plus (B) the
Applicable Margin, payable in arrears on the last day of each Interest Period.
(ii) In the event that a Eurodollar Rate Advance is Converted
into a Base Rate Advance in accordance with Section 2.06(c) or (d) or any Base
Rate Advance is made, the Borrower shall pay interest on the unpaid principal
amount of such Base Rate Advance owing to each Lender from the date of such Base
Rate Advance until such principal amount shall be paid in full, at a rate per
annum equal at all times to the Base Rate in effect from time to time plus ***
payable in arrears on the last day of each calendar quarter.
<PAGE> 22
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum then required to be paid on
Advances.
(c) Notice of Interest Rate. The Administrative Agent shall
determine the applicable Eurodollar Rate two Business Days before the first day
of each Interest Period after the date hereof and shall give the Borrower and
each Lender notice of the applicable interest rate determined by the
Administrative Agent for purposes of clause (a) as soon as possible after the
determination thereof.
(d) Compensation for Breakage or Noncommencement of Interest
Periods. The Borrower shall compensate each Lender, upon request of that Lender
(which request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Advances and any
loss, expense or liability sustained by that Lender in connection with the
liquidation or reemployment of such funds) which that Lender may sustain (i) if
for any reason (other than a default by that Lender) a borrowing of any Advances
bearing interest at the Eurodollar Rate does not occur on a date specified
therefor in a Notice of Borrowing or a telephonic request for borrowing, (ii) if
any prepayment (including prepayments pursuant to Section 2.04(b)) or other
principal payment of any Advance bearing interest at the Eurodollar Rate occurs
on a date prior to the last day of an Interest Period applicable to that
Advance, (iii) if any prepayment of an Advance bearing interest at the
Eurodollar Rate is not made on any date specified in a notice of prepayment
given by the Borrower, or (iv) as a consequence of any other default by the
Borrower in the repayment of any Advances bearing interest at the Eurodollar
Rate when required by the terms of this Agreement.
SECTION 2.06. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or of
making, funding or maintaining Eurodollar Rate Advances and (ii) changes in the
basis of taxation of overall net income or overall gross income by the United
States or by the foreign jurisdiction or state under the laws of which such
Lender is organized or has its Applicable Lending Office or any political
subdivision thereof), then the Borrower shall from time to time, within 15 days
after demand by such Lender (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost;
provided, however, that a Lender claiming additional amounts under this Section
2.06(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender. Within 45 days after a Lender obtains knowledge of an increased
cost, such Lender shall notify the Borrower of the occurrence thereof and, as
soon as practicable thereafter, deliver to the
<PAGE> 23
Borrower a certificate setting out in reasonable detail the basis on which a
claim for increased cost is based, which certificate shall be conclusive and
binding for all purposes, absent manifest error.
(b) If any Lender reasonably determines that compliance with
any law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend and other commitments of such type, then, within 15 days after demand by
such Lender (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender,
from time to time as specified by such Lender, additional amounts sufficient to
compensate such Lender in the light of such circumstances, to the extent that
such Lender reasonably determines such increase in capital to be allocable to
the existence of such Lender's commitment to lend hereunder. Within 45 days
after a Lender obtains knowledge of an increased cost, such Lender shall notify
the Borrower of the occurrence thereof and, as soon as practicable thereafter,
deliver to the Borrower a certificate setting out in reasonable detail the basis
on which such claim for increased cost is based, which certificate shall be
conclusive and binding for all purposes, absent manifest error.
(c) If the Required Lenders notify the Administrative Agent
that the Eurodollar Rate for such Advances will not adequately reflect the cost
to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances, the Administrative Agent shall forthwith so notify the Borrower and
the Lenders in writing, whereupon (i) each such Eurodollar Rate Advance will
automatically Convert into a Base Rate Advance and (ii) the obligation of the
Lenders to make Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist; provided,
however, the Lenders shall be obligated to make Base Rate Advances subject to
the terms and conditions hereof during the period that Eurodollar Rate Advances
shall be suspended.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist;
provided, however, that, before making any such demand, such Lender agrees to
use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Eurodollar Lending Office if
the making of such a designation would allow such Lender or its Eurodollar
Lending Office to continue to perform its obligations to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances and would
not, in the judgment of such Lender, be otherwise disadvantageous to such
Lender; provided further the Lenders shall be
<PAGE> 24
obligated to make Base Rate Advances subject to the terms and conditions hereof
during the period that Eurodollar Rate Advances shall be suspended.
SECTION 2.07. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off, not later than 11:00 A.M. (New York City time) on
the day when due in U.S. dollars to the Administrative Agent at the
Administrative Agent's Account in same day funds. The Administrative Agent will
promptly thereafter cause like funds to be distributed (i) if such payment by
the Borrower is in respect of principal, interest or any other Obligation then
payable hereunder and under the Notes to more than one Lender, to such Lenders
for the account of their respective Applicable Lending Offices ratably in
accordance with the amounts of such respective Obligations then payable to such
Lenders and (ii) if such payment by the Borrower is in respect of any Obligation
then payable hereunder to one Lender, to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or, in the
case of a Lender, under the Note held by such Lender, to charge from time to
time against any or all of the Borrower's accounts with such Lender any amount
so due.
(c) All computations of interest shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest is payable. Each determination
by the Administrative Agent of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest; provided, however,
that, if such extension would cause payment of interest on or principal of
Eurodollar Rate Advances to be made in the next calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Party. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each such Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.08. Tax Forms. Each Lender shall, on or prior to the
date of its execution and delivery of this Agreement in the case of each Initial
Lender and on the date of
<PAGE> 25
any assignment pursuant to Section 8.07, and from time to time thereafter as
requested in writing by the Administrative Agent (but only so long thereafter as
such Lender remains lawfully able to do so), provide the Administrative Agent
with two original Internal Revenue Service forms 1001 or 4224 or (in the case of
a Lender that has certified in writing to the Administrative Agent that it is
not a "bank" as defined in Section 881(c)(3)(A) of the Internal Revenue Code)
form W-8 (and, if such Lender delivers a form W-8, a certificate representing
that such Lender is not a "bank" for purposes of Section 881(c) of the Internal
Revenue Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue 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 Internal Revenue Code)) or form W-9, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this Agreement or the
Notes or, in the case of a Lender providing a form W-8, certifying that such
Lender is a foreign corporation, partnership, estate or trust or in the case of
a Lender providing a form W-9, certifying that such Lender is a domestic
corporation, partnership estate or trust. If any form or document referred to in
this Section 2.08 requires the disclosure of information, other than information
necessary to compute the tax payable and information required on the date hereof
by Internal Revenue Service form 1001 or, 4224 or W-8 or W-9 (or the related
certificate described above), that the Lender reasonably considers to be
confidential, the Lender shall give notice thereof to the Administrative Agent
and shall not be obligated to include in such form or document such confidential
information.
SECTION 2.09. Sharing of Payments, Etc. If any Lender shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) (a) on account of Obligations
due and payable to such Lender hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lenders hereunder and
under the Notes at such time) of payments on account of the Obligations due and
payable to all Lenders hereunder and under the Notes at such time obtained by
all of the Lenders at such time or (b) on account of Obligations owing (but not
due and payable) to such Lender hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender at such time to (ii) the aggregate amount
of the Obligations owing (but not due and payable) to all Lenders hereunder and
under the Notes at such time) of payments on account of the Obligations owing
(but not due and payable) to all Lenders hereunder and under the Notes at such
time obtained by all of the Lenders at such time, such Lender shall forthwith
purchase from the other Lenders such participations in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each other
Lender shall be rescinded and each such other Lender shall repay to the
purchasing Lender the purchase price to the extent of such Lender's ratable
share (according to the proportion of (i) the purchase price paid to such Lender
to (ii) the aggregate purchase price paid to all Lenders) of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such other Lender's required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.09 may, to
<PAGE> 26
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.10. Use of Proceeds. The proceeds of the Series A
Advances and Series B Advances shall be available (and the Borrower agrees that
it shall use such proceeds) solely to purchase the Ericsson Equipment in
accordance with the terms of the Equipment Purchase Agreement for use in (i) the
MTAs of Jacksonville, Florida; Memphis, Tennessee/Jackson, Mississippi; and
Birmingham, Alabama; (ii) the Atlanta MTA; and (iii) the BTA Markets; provided
that the proceeds of the Series B Advances shall be available (and the Borrower
agrees that it shall use such proceeds) for use in any BTA Market only upon the
satisfaction of the conditions precedent set forth in Section 3.05 hereof.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness. The
effectiveness of the amendment and restatement of the Original Credit Agreement
is subject to the satisfaction of the following conditions precedent:
(a) each of the Borrower, the Agent, the Administrative Agent
and the Required Lenders shall have executed and delivered to the Agent
counterparts of this Agreement;
(b) each of the Guarantors and Ericsson shall have executed
and delivered to the Agent an Acknowledgment and Consent;
(c) Powertel shall have executed and delivered to the Agent
the Parent Guaranty;
(d) each of the following representations and warranties of
the Borrower shall be true, correct and complete on and as of the date
hereof:
(i) The execution, delivery and performance
by the Borrower of this Agreement and the other Loan Documents
to which it is a party are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate
action and do not (i) contravene the Borrower's charter or
bylaws, (ii) violate any law, rule or regulation (including,
without limitation, Regulation X of the Board of Governors of
the Federal Reserve System), or any order, writ, judgment,
injunction, decree, determination or award, binding on or
affecting the Borrower or any of its Subsidiaries or any of
their properties, the effect of which would have a Material
Adverse Effect, or (iii) conflict with or result in the breach
of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting the Borrower, or any of its
Subsidiaries or any of their properties except where such
conflict would not have a Material Adverse Effect;
<PAGE> 27
(ii) No authorization or approval or other
action by, and no notice to or filing with, any governmental
authority or regulatory body or any other third party is
required for the due execution, delivery or performance by the
Borrower of this Agreement or any of the Loan Documents to
which it is a party;
(iii) This Agreement has been duly executed
and delivered by the Borrower. This Agreement and each of the
other Loan Documents to which the Borrower is a party are
legal, valid and binding obligations of the Borrower
enforceable against the Borrower in accordance with their
respective terms;
(iv) The representations and warranties
contained in Article IV of this Agreement are true, correct
and complete in all material respects on and as of the
effective date hereof to the same extent as though made on and
as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material
respects on and as of such earlier date; and
(v) No event has occurred and is continuing
or will result from the consummation of the transactions
contemplated by this Agreement that would constitute a
Default; and
(e) the Agent shall have received such other approvals or
documents as the Agent or any Lender (through the Agent) may reasonably
request.
SECTION 3.02. Conditions Precedent to Each Borrowing. The
obligation of each Lender to make an Advance pursuant to Section 2.01, and the
right of the Borrower to request a Borrowing, shall be subject to the further
conditions precedent that on the date of such Borrowing (a) the following
statements shall be true and the acceptance by the Borrower of the proceeds of
such Borrowing shall constitute a representation and warranty by the Borrower
that both on the date of such notice and on the date of such Borrowing such
statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and as of such date,
before and after giving effect to such Borrowing and to the application
of the proceeds therefrom, as though made on and as of such date other
than any such representations or warranties that, by their terms, refer
to a specific date other than the date of such Borrowing, in which case
as of such specific date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default; and
(iii) the proceeds of each Borrowing shall be used to pay the
invoices identified in the Borrowing Notice; and
<PAGE> 28
(b) the Administrative Agent shall have received such other
approvals or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. [Intentionally Omitted].
SECTION 3.04. Determinations Under Sections 3.01 and 3.05. For
purposes of determining compliance with the conditions specified in Sections
3.01 or 3.05, as the case may be, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lenders unless, in the case of Section 3.01, an officer of
the Agent or, in the case of Section 3.05, an officer of the Administrative
Agent, responsible for the transactions contemplated by the Loan Documents shall
have received notice from such Lender specifying its objection thereto prior to
(a) the effectiveness of the amendment and restatement of the Original Credit
Agreement (in the case of a determination under Section 3.01) or (b) an
applicable Borrowing under the Series B Facility (in the case of a determination
under Section 3.05); provided that with respect to any such Borrowing under the
Series B Facility, such Lender shall not have made available to the
Administrative Agent such Lender's ratable portion of such Borrowing.
SECTION 3.05. Conditions Precedent to Series B Advances. The
obligations of the Lenders having Series B Commitments to make Series B Advances
to the Borrower pursuant to Section 2.01(b) to purchase BTA Equipment for use in
any BTA Market pursuant to the Equipment Purchase Agreement shall be subject in
addition to the conditions set forth in Section 3.02 to the following conditions
precedent:
(a) each Operating Subsidiary for each BTA Market for which
BTA Equipment is being purchased shall have duly executed a Subsidiary
Guaranty and a Subsidiary Security Agreement;
(b) each License Subsidiary holding a License for the BTA
Market for which BTA Equipment is being purchased shall have duly
executed a Subsidiary Guaranty; and
(c) the Administrative Agent shall have received the following
items from each Subsidiary becoming a Loan Party pursuant to clause (a)
or (b) of this Section 3.05:
(A) certified copies of the resolutions of
the Board of Directors of each such Subsidiary approving this
Agreement, the Notes, each other Loan Document to which it is
a party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to this
Agreement, the Notes and each other Loan Document;
(B) a copy of the charter of such Subsidiary
and each amendment thereto, certified (as of a date reasonably
near the date of the Borrowing) by the Secretary of State of
the jurisdiction of its incorporation as being a true and
correct copy thereof;
<PAGE> 29
(C) a copy of a certificate of the Secretary
of State of the jurisdiction of its incorporation, dated
reasonably near the date of the Borrowing, listing the charter
of such Subsidiary and each amendment thereto on file in his
office and certifying that (1) such amendments are the only
amendments to such Subsidiary's charter on file in his office,
(2) such Subsidiary has paid all franchise taxes to the date
of such certificate, and (3) such Subsidiary is duly
incorporated and in good standing under the laws of the State
of the jurisdiction of its incorporation;
(D) a copy of a certificate of the Secretary
of State of the jurisdiction of its incorporation, dated
reasonably near the date of the Borrowing, stating that such
Subsidiary is duly qualified and in good standing as a foreign
corporation in such State and has filed all annual reports
required to be filed to the date of such certificate;
(E) a certificate of the Secretary or an
Assistant Secretary of such Subsidiary certifying the names
and true signatures of the officers of such Subsidiary
authorized to sign this Agreement, the Notes and each other
Loan Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder; and
(F) a Subsidiary Security Agreement with
respect to each Operating Subsidiary referred to in clause (a)
above, duly executed by such Operating Subsidiary in favor of
the Agent for the benefit of the Lenders, together with the
following items:
(1) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank;
(2) acknowledgment copies of proper
financing statements, duly filed on or before the day
of such Borrowing under the Uniform Commercial Code
of all jurisdictions that the Administrative Agent
may deem necessary or desirable in order to perfect
and protect the first priority liens and security
interests created under such Subsidiary Security
Agreement, covering the Collateral described in such
Subsidiary Security Agreement;
(3) completed requests for information,
dated on or before the date of the Borrowing, listing
the financing statements referred to in subparagraph
(2) above and all other effective financing
statements filed in the jurisdictions referred to in
subparagraph (2) above that name the Borrower or any
other Loan Party as debtor, together with copies of
such other financing statements;
(4) evidence of the insurance required by
the terms of such Subsidiary Security Agreements;
<PAGE> 30
(5) consents and agreements of lessors and
other third parties, and such estoppel letters and
other confirmations, as the Administrative Agent may
deem necessary or desirable;
(6) evidence that all other action that the
Administrative Agent may deem necessary or desirable
in order to perfect and protect the first priority
liens and security interests created under such
Subsidiary Security Agreement has been taken; and
(7) a favorable opinion of local counsel to
the Borrower, acceptable to the Administrative Agent,
in jurisdictions in which the Equipment is located,
in form and substance reasonably satisfactory to the
Lenders and as to such other matters as any Lender
through the Administrative Agent may reasonably
request; and
(d) the Administrative Agent shall have received an
opinion of counsel to each Subsidiary becoming a Loan Party pursuant to
clause (a) or (b) of this Section 3.05 and the Collateral Documents and
Guaranties delivered hereunder on behalf of such Loan Parties, in form
and substance reasonably satisfactory to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not have a Material Adverse Effect and
(iii) has all requisite corporate power and authority (including,
without limitation, all material governmental licenses, permits and
other approvals) to own or lease and operate its properties and to
carry on its business as now conducted and as proposed to be conducted.
All of the outstanding capital stock of the License Subsidiaries has
been validly issued, is fully paid and non-assessable and is owned by
each of the Operating Subsidiaries in the amounts specified on Schedule
4.01(a) free and clear of all Liens, except those created under the
Collateral Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of Powertel, showing as of the date
hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly
or indirectly) by Powertel and the number of shares covered by all
outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding capital stock
of all
<PAGE> 31
of such Subsidiaries has been validly issued, is fully paid and
non-assessable and all of the outstanding capital stock of the
Operating Subsidiaries and the License Subsidiaries is owned by the
Borrower or one or more of its Subsidiaries free and clear of all
Liens, except those created under the Loan Documents. Each such
Subsidiary (i) is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation,
(ii) is duly qualified and in good standing as a foreign corporation in
each other jurisdiction in which it owns or leases property or in which
the conduct of its business requires it to so qualify or be licensed
except where the failure to so qualify or be licensed would not have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all material governmental
licenses, permits and other approvals) to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes and each other Loan Document to which it
is a party and the other transactions contemplated hereby, are within
such Loan Party's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene such Loan Party's
charter or bylaws, (ii) violate any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award the effect of
which would have a Material Adverse Effect, (iii) conflict with or
result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting any Loan Party or any of their
respective properties or (iv) except for the Liens created under the
Loan Documents, result in or require the creation or imposition of any
Lien upon or with respect to any of the properties of any Loan Party or
any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could have a
Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes and any other Loan Document to which it is a party
or the other transactions contemplated hereby, (ii) the grant by any
Loan Party of the Liens granted by it pursuant to the Collateral
Documents, (iii) the perfection or maintenance of the Liens created by
the Collateral Documents (including the first priority nature thereof)
or (iv) the exercise by the Agent, the Administrative Agent or any
Lender of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents.
(e) This Agreement has been, and each of the Notes and each
other Loan Document when executed and delivered hereunder will have
been, duly executed and delivered by each Loan Party party thereto.
This Agreement is, and each of the Notes and each other Loan Document
when executed and delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms.
<PAGE> 32
(f) The Consolidated balance sheets of Powertel and its
Subsidiaries as at December 31, 1994, and the related Consolidated
statements of income and Consolidated statement of cash flows of
Powertel and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Arthur Andersen LLP, independent public
accountants or other independent public accountants of regional or
national recognized standing acceptable to the Required Lenders, and
the Consolidated balance sheets of Powertel and its Subsidiaries as at
September 30, 1995, and the related Consolidated statements of income
and Consolidated statement of cash flows of Powertel and its
Subsidiaries for the nine months then ended, duly certified by the
chief financial officer of Powertel, copies of which have been
furnished to each Lender, fairly present, subject, in the case of said
balance sheets as at September 30, 1995, and said statements of income
and cash flows for the nine months then ended, to year-end audit
adjustments, the Consolidated financial condition of Powertel and its
Subsidiaries as at such dates and the Consolidated results of the
operations of Powertel and its Subsidiaries for the periods ended on
such dates, all in accordance with generally accepted accounting
principles applied on a consistent basis, and since December 31, 1994,
there has been no Material Adverse Change.
(g) No information, exhibit or report furnished by any Loan
Party to the Agent, the Administrative Agent or any Lender in
connection with the negotiation of the Loan Documents or pursuant to
the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(h) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) if adversely
determined would have a Material Adverse Effect or (ii) purports to
affect the legality, validity or enforceability of this Agreement, any
Note or any other Loan Document or the consummation of the transactions
contemplated hereby.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
(j) Neither the Borrower nor any of its ERISA Affiliates
maintains or contributes to, or has maintained or contributed to, any
Single Employer Plan, Multiemployer Plan or Multiple Employer Plan,
other than as disclosed on Schedule 4.01(j) hereto and as to which
aggregate Liability of the Borrower and its ERISA Affiliates shall not
exceed $1,000,000.
(k) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that could reasonably be
expected to have a Material Adverse Effect.
<PAGE> 33
(l) The operations and properties of each Loan Party and each
of its Subsidiaries comply in all material respects with all applicable
Environmental Laws and no circumstances exist, no event or condition
has occurred and is continuing with respect to the Borrower or any of
its Subsidiaries relating to compliance with any Environmental Laws or
any release of hazardous materials which, individually or in the
aggregate, has had or will have a Material Adverse Effect, and no
circumstances exist that could cause any property of any Loan Party or
any Subsidiary thereof to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law except
where the failure to so comply would not have a Material Adverse
Effect.
(m) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate
restriction that could reasonably be expected to have a Material
Adverse Effect.
(n) The Collateral Documents create a valid first priority
security interest in the Collateral, securing the payment of the
Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly
taken. The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(o) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in
all tax returns (Federal, state, local and foreign) required to be
filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties, except for taxes being contested in
good faith and against which appropriate reserves are being maintained.
(p) Neither any Loan Party nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of such
Act or any rule, regulation or order of the Securities and Exchange
Commission thereunder.
(q) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(r) There is no Debt of the Borrower and its Subsidiaries
outstanding on the date hereof.
(s) Set forth on Schedule 4.01(s) hereto is a complete and
accurate list of all Material Contracts, showing as of the date hereof
the parties, subject matter and term thereof. Each such Material
Contract has been duly authorized, executed and delivered by all
parties thereto, has not been amended or otherwise modified, is in full
force and effect and is binding upon and enforceable against all
parties thereto in accordance with
<PAGE> 34
its terms, and there exists no default under any Material Contract by
any party thereto that would have a Material Adverse Effect.
(t) No Prospectus as of its date of issue contained any untrue
statement of a material fact or omitted to state any material fact
necessary to make the statements therein, in light of the circumstances
under which they are or were made, not misleading, and the issuance of
the common stock and units of Powertel as contemplated by the
Prospectuses complied, in all material respects, with all applicable
laws, rules, regulations and orders.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders except, in any case, where the
failure to so comply would not have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and all lessees and other Persons operating or
occupying its properties to comply with all applicable Environmental
Laws, except where failure to so comply would not have a Material
Adverse Effect.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates, including, without limitation,
the Ericsson Equipment.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that any of the Operating Subsidiaries or License
<PAGE> 35
Subsidiaries may reincorporate in Delaware so long as the
reincorporation documents therefor do not alter the current capital
structure of such entity and otherwise conform substantially to the
Borrower's charter and bylaws; and provided further that neither the
Borrower nor any of its Subsidiaries shall be required to preserve any
right, permit, license, approval, privilege or franchise if the Board
of Directors of the Borrower or such Subsidiary shall determine that
the preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and
that the loss thereof does not cause a Material Adverse Effect.
(f) Visitation Rights. At any reasonable time during normal
business hours and upon one Business Day's prior notice, permit the
Administrative Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any Operating Subsidiary or License Subsidiary, and to
discuss the affairs, finances and accounts of the Borrower and any
Operating Subsidiary or License Subsidiary with any designated officer
or director and with their independent certified public accountants;
provided, however, the Borrower shall not be required to provide any
information regarding competitors of Ericsson, documents subject to
confidentiality or other information of a similar type.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(i) Performance of the Equipment Purchase Agreement. Perform
and observe in all material respects all of the terms and provisions of
the Equipment Purchase Agreement to be performed or observed by it and
maintain the Equipment Purchase Agreement in full force and effect.
(j) Performance of Material Contracts. Perform and observe all
the terms and provisions of each Material Contract to be performed or
observed by it, maintain each such Material Contract in full force and
effect, enforce each such Material Contract in accordance with its
terms, and cause each of its Subsidiaries to do so except, in any case,
where the failure to do so, either individually or in the aggregate,
would not have a Material Adverse Effect.
(k) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
<PAGE> 36
(l) Solvency. Remain Solvent and cause each Operating
Subsidiary and License Subsidiary to remain Solvent.
(m) Leases. In connection with (i) any leases entered into by
the Borrower relating to any property on which any Collateral with a
purchase price in excess of $500,000 shall be located or stored, the
Borrower shall obtain provisions in such leases or shall obtain
consents from landlords containing such provision substantially similar
to those provisions set forth in Annex A-1 or as shall otherwise be
reasonably satisfactory to the Administrative Agent and (ii) any leases
entered into by the Borrower after October 28, 1996 relating to any
property on which any other Collateral shall be located or stored, the
Borrower shall use reasonable efforts to obtain provisions in such
leases substantially similar to those provisions set forth in Annex
A-2.
(n) License Subsidiaries. All Licenses now or hereafter owned
by the Borrower and its Subsidiaries shall be owned and held by License
Subsidiaries, which License Subsidiaries (i) shall at all times be
wholly owned Subsidiaries of the Borrower or a wholly owned Subsidiary
of the Borrower, (ii) shall have executed and delivered a Subsidiary
Guaranty, and (iii) shall have all of their outstanding capital stock
pledged to the Agent to secure the Obligations hereunder. License
Subsidiaries shall not engage in any business other than the holding of
the Licenses and the performance of their respective obligations under
their respective Subsidiary Guaranties. License Subsidiaries shall not
own any assets other than the Licenses.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, or any Lender shall have any Commitment hereunder, the Borrower
will not, at any time:
(a) Debt. Permit any License Subsidiary to create, incur,
assume or suffer to exist, any Debt.
(b) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of the Operating Subsidiaries or License
Subsidiaries to sell, lease, transfer or otherwise dispose of, any
assets, or grant any option or other right to purchase, lease or
otherwise acquire any assets other than Inventory to be sold in the
ordinary course of its business, except:
(i) any sale, lease, transfer or other disposition
of Inventory in the ordinary course of its business;
(ii) any sale, lease, transfer or other disposition
of assets other than Collateral to Powertel, the Borrower or
any Restricted Subsidiary; and
<PAGE> 37
(iii) any sale, lease, transfer or other disposition
of assets for cash; provided that (A) the consideration
received is equal to the fair market value of such assets and
(B) to the extent the aggregate Net Cash Proceeds received by
the Company in any 12 consecutive month period exceed ***, the
Company shall apply such Net Cash Proceeds in accordance with
Subsection 2.04(b)(i) hereof.
(c) Change in Nature of Business. Make, or permit any of the
Operating Subsidiaries or License Subsidiaries to make, any material
change in the nature of its business.
(d) Charter Amendments. Amend, or permit any of the Operating
Subsidiaries or License Subsidiaries to amend, its certificate of
incorporation or bylaws if such amendment would have a Material Adverse
Effect.
(e) Accounting Changes. Make or permit, or permit any of the
Operating Subsidiaries or License Subsidiaries to make or permit, any
change in accounting policies or reporting practices, except as
disclosed in its financial statements or as consistent with the
reporting practices of Powertel and its Subsidiaries.
(f) Restrictions on Distributions, etc. Permit any of the
Operating Subsidiaries or License Subsidiaries to enter into or suffer
to exist, any agreement restricting the ability of such Subsidiary to
declare dividends or make other distributions to the Borrower in
respect of such Subsidiary's capital stock or make loans to the
Borrower.
(g) Restrictions on Issuances of Stock. Permit any Operating
Subsidiary to issue any capital stock, except to the Borrower, or
permit any License Subsidiary to issue any capital stock, except as
permitted in accordance with Section 10 of each Subsidiary Security
Agreement.
(h) Partnerships, Etc.. Become a general partner in any
general or limited partnership or joint venture, or permit any of the
Operating Subsidiaries or License Subsidiary to do so.
(i) Equipment Purchase Agreement. Default in any material
respect in the performance or observance of any of the covenants or
conditions on its part to be performed or observed under the Equipment
Purchase Agreement.
(j) ERISA. Establish or maintain any Single Employer Plan,
Multiemployer Plan or Multiple Employer Plan, other than as described
in Schedule 4.01(j).
SECTION 5.03. Reporting Requirements. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will furnish to the Lenders:
(a) Default Notice. As soon as possible and in any event
within five (5) Business Days after the president, vice-president or
chief executive officer of the
- ---------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
<PAGE> 38
Borrower obtains knowledge of the occurrence of each Default a
statement of such officer of the Borrower setting forth details of such
Default and the action that the Borrower has taken and proposes to take
with respect thereto.
(b) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, a Consolidated and consolidating balance sheets of
Powertel and its Subsidiaries as of the end of such quarter and
Consolidated and consolidating statements of income and a Consolidated
and consolidating statement of cash flows of Powertel and its
Subsidiaries for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter and
Consolidated and consolidating statements of income and a Consolidated
and consolidating statement of cash flows of Powertel and its
Subsidiaries for the period commencing at the end of the previous
Fiscal Year and ending with the end of such quarter, setting forth in
each case in comparative form the corresponding figures for the
corresponding period of the preceding Fiscal Year, all in reasonable
detail and duly certified (subject to year-end audit adjustments) by
the chief financial officer of the Borrower as having been prepared in
accordance with GAAP, together with (i) a certificate of said officer
stating that no Default has occurred and is continuing or, if a Default
has occurred and is continuing, a statement as to the nature thereof
and the action that the Borrower has taken and proposes to take with
respect thereto and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining compliance with the covenants contained in Sections 6.01(o)
through 6.01(v); provided that in the event of any change in GAAP used
in the preparation of such financial statements, the Borrower shall
also provide, if necessary for the determination of compliance with
Sections 6.01(o) through 6.01(v), a statement of reconciliation
conforming such financial statements to GAAP.
(c) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for Powertel and its Subsidiaries, including
therein Consolidated and consolidating balance sheets of Powertel and
its Subsidiaries as of the end of such Fiscal Year and Consolidated and
consolidating statements of income and a Consolidated and consolidating
statement of cash flows of Powertel and its Subsidiaries for such
Fiscal Year, in each case accompanied by an opinion acceptable to the
Required Lenders of Arthur Andersen LLP or other independent public
accountants of recognized standing acceptable to the Required Lenders,
together with (i) a certificate of such accounting firm to the Lenders
stating that in the course of the regular audit of the business of
Powertel and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement
as to the nature thereof, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Sections 6.01(o) through 6.01(v); provided that
in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Sections 6.01(o) through 6.01(v),
a statement of reconciliation conforming such financial statements to
GAAP and (iii) a certificate of the chief financial officer of the
Borrower stating that no
<PAGE> 39
Default has occurred and is continuing or, if a default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto.
(d) Business Plan. As soon as available and in any event no
later than 30 days after the end of each Fiscal Year, a detailed
business plan and forecasts prepared by management of the Borrower, in
form satisfactory to the Lenders, of balance sheets, income statements
and cash flow statements prepared on a monthly basis for the Fiscal
Year following such Fiscal Year then ended and on an annual basis for
each Fiscal Year thereafter until the Advances have been paid in full.
(e) Monthly Information Report. Promptly after each calendar
month, information concerning subscribers and revenues in such form as
the parties hereto shall reasonably agree.
(f) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
described in Section 4.01(h).
(g) Securities Reports. Promptly after the sending or
filing thereof, copies of all proxy statements,
financial statements and reports that Powertel or any
of its Subsidiaries sends to its stockholders, and
copies of all regular, periodic and special reports,
and all registration statements, that Powertel or any
of its Subsidiaries files with the Securities and
Exchange Commission or any governmental authority
that may be substituted therefor, or with any
national securities exchange.
(h) Insurance. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
each Loan Party and containing such additional information as any
Lender (through the Administrative Agent) may reasonably specify.
(i) Other Information. Such other information respecting the
business, financial condition, operations, properties or prospects of
any Loan Party as any Lender (through the Administrative Agent) may
from time to time reasonably request.
<PAGE> 40
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of
any Advance when the same shall become due and
payable or (ii) the Borrower shall fail to pay any
interest on any Advance, or any Loan Party shall fail
to make any other payment under any Loan Document, in
each case under this clause (ii) within *** days
after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(e), 5.02 or 5.03;
or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for ***
consecutive days after the earlier of the date on which (A) a
Responsible Officer of any Loan Party becomes aware of such failure or
(B) written notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender; or
(e) any Loan Party shall fail to pay any principal of,
premium or interest on or any other amount payable in respect of any
Debt that is outstanding in a principal amount of at least $*** either
individually or in the aggregate (but excluding Debt outstanding
hereunder) of such Loan Party or such Subsidiary (as the case may be),
when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such
failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt and shall continue after the
applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Debt or
otherwise to cause, or to permit the holder thereof to cause, such Debt
to mature; or any such Debt shall be declared to be due and payable or
required to be prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased, or an offer
to prepay, redeem, purchase or defease such Debt shall be required to
be made, in each case prior to the stated maturity thereof; or
- ---------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
<PAGE> 41
(f) any Loan Party shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against any
Loan Party or any of its Subsidiaries seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee, or
other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in
good faith, either such proceeding shall remain undismissed or unstayed
for a period of 30 days or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or any Loan Party or any of its Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in
this subsection (f); or
(g) any judgment or order for the payment of money in
excess of *** shall be rendered against any Loan Party and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order or (ii) there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could have a
Material Adverse Effect, and there shall be any period of 30
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(i) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 or 3.05 shall for any reason cease to
be valid and binding on or enforceable against any Loan Party party to
it, or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof
pursuant to Article III of the Original Credit Agreement or Section
3.05 of this Agreement shall for any reason (other than pursuant to the
terms thereof) cease to create a valid lien on and security interest in
the Collateral purported to be covered thereby; such lien on and
security interest in the Collateral ceases to be perfected and first
priority; or the Borrower or any Operating Subsidiary shall fail to
comply respectively with Section 8 of the Borrower Security Agreement
or Section 10 of the Subsidiary Security Agreement; or
- ---------------------
*** Omitted pursuant to a request for confidential treatment and filed
separately with the Commission.
<PAGE> 42
(k) (i) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of Powertel (or other securities convertible into such Voting
Stock) representing 35% or more of the combined voting power of all
Voting Stock of Powertel; or (ii) during any period of up to 24
consecutive months, commencing after the date of this Agreement,
individuals who at the beginning of such 24-month period were directors
of Powertel shall cease for any reason to constitute a majority of the
board of directors of Powertel; or (iii) any Person or two or more
Persons acting in concert shall have acquired by contract or otherwise,
or shall have entered into a contract or arrangement that, upon
consummation, will result in its or their acquisition of the power to
exercise, directly or indirectly, a controlling influence over the
management or policies of Powertel; or
(l) Powertel shall cease to own 100% of the Voting Stock
of the Borrower and its Subsidiaries; or
(m) (i) the Equipment Purchase Agreement shall cease to
be in full force and effect as a direct consequence of an uncured
default thereunder by the Borrower; or (ii) there shall have occurred
any breach in the obligations of Powertel, the Borrower, or any of its
Subsidiaries in respect of the exclusive supply arrangements with
Ericsson set forth in the Equipment Purchase Agreement, as amended; or
(n) any License shall cease to be in full force and
effect; or
(o) Powertel and its Subsidiaries shall fail to have
earned for each fiscal quarter of Powertel, Consolidated Revenue of not
less than the applicable amount set forth on Schedule 6.01(o) for such
fiscal quarter; or
(p) [Intentionally left blank]; or
(q) Powertel shall fail to maintain at the end of each
fiscal quarter of Powertel an excess of Consolidated total assets over
Consolidated total liabilities not less than the amount set forth on
Schedule 6.01(q) for such fiscal quarter; or
(r) [Intentionally left blank]; or
(s) The Borrower shall permit the aggregate number of
Subscribers at any time during any period set forth on Schedule 6.01(s)
to be less than the number set forth for such period; or
(t) Powertel shall fail to maintain, for each period
ending on the last day of each fiscal quarter of Powertel as set forth
on Schedule 6.01(t), a ratio of Consolidated EBITDA for such period
multiplied by 4 to Consolidated Debt Service for such period multiplied
by 4 of not less than the ratio set forth for such period on such
schedule; or
(u) Powertel shall permit the ratio of Consolidated Debt
as of the last day of each fiscal quarter of Powertel as set forth on
Schedule 6.01(u) to Consolidated EBITDA
<PAGE> 43
for such period multiplied by 4 to be greater than the ratio set forth
for such period on such schedule; or
(v) Powertel and its Subsidiaries shall make any Capital
Expenditures that would cause the aggregate cumulative amount of all
such Capital Expenditures made by Powertel and its Subsidiaries
commencing January 1, 1997 to exceed the amount set forth on Schedule
6.01(v) as of the end of each period set forth on such schedule;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by written notice to the
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at the
request, or may with the consent, of the Required Lenders, by written notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to any Loan Party under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances shall automatically be
terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENT AND THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender (in its
capacity as a Lender) hereby appoints and authorizes each of the Agent and the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement and the other Loan Documents as
are delegated to each of the Agent and the Administrative Agent, respectively,
by the terms hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
the Loan Documents (including, without limitation, enforcement or collection of
the Notes), the Agent and the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lenders and all holders of Notes;
provided, however, that neither the Agent nor the Administrative Agent shall be
required to take any action that exposes the Agent or the Administrative Agent
to personal liability or that is contrary to this Agreement or applicable law.
The Administrative Agent agrees to give to each Lender prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement or
the Collateral Documents, as the case may be.
SECTION 7.02. Agent's and Administrative Agent's Reliance,
Etc. None of the Agent, the Administrative Agent or any of their directors,
officers, agents or employees shall be liable for any action taken or omitted to
be taken by them under or in connection with the Loan
<PAGE> 44
Documents, except for their own gross negligence or willful misconduct. Without
limitation of the generality of the foregoing, the Agent and the Administrative
Agent: (a) may treat the payee of any Note as the holder thereof until the
Administrative Agent receives and accepts an Assignment Agreement entered into
by the Lender that is the payee of such Note, as assignor, and an Eligible
Assignee, as assignee, as provided in Section 8.07; (b) may consult with legal
counsel (including counsel for any Loan Party), independent public accountants
and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties
or representations (whether written or oral) made in or in connection with the
Loan Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Agent, Administrative Agent and Their
Affiliates. With respect to their Commitments, the Advances made by each of them
and the Notes issued to each of them, the Agent and the Administrative Agent
shall each have the same rights and powers under the Loan Documents as any other
Lender and may exercise the same as though it were not the Agent or the
Administrative Agent, as applicable; and the term "Lender" shall, unless
otherwise expressly indicated, include both the Agent and the Administrative
Agent, each in its individual capacity. The Agent, the Administrative Agent and
their respective affiliates may generally engage in any kind of business with,
any Loan Party, any of its Subsidiaries and any Person who may do business with
or own securities of any Loan Party or any such Subsidiary, all as if the Agent
and the Administrative Agent were not the Agent and the Administrative Agent,
respectively, and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent, the
Administrative Agent or any other Lender and based on the financial statements
referred to in Section 4.01 and such other 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 Agent, the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement.
SECTION 7.05. Indemnification of the Agent and the
Administrative Agent. Each Lender severally agrees to indemnify the Agent and
the Administrative Agent (to the extent not promptly reimbursed by the Borrower)
from and against such Lender's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Agent or
the Administrative Agent in
<PAGE> 45
any way relating to or arising out of the Loan Documents or any action taken or
omitted by the Agent or the Administrative Agent under the Loan Documents;
provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's or the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent and the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 8.04, to the extent that the Agent or the
Administrative Agent is not promptly reimbursed for such costs and expenses by
the Borrower. For purposes of this Section 7.05, the Lenders' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
(a) the aggregate principal amount of the Advances outstanding at such time and
owing to the respective Lenders and (b) the aggregate unused portions of their
respective Commitments at such time. The failure of any Lender to reimburse the
Agent or the Administrative Agent promptly upon demand for its ratable share of
any amount required to be paid by the Lender to the Agent or the Administrative
Agent as provided herein shall not relieve any other Lender of its obligation
hereunder to reimburse the Agent or the Administrative Agent for its ratable
share of such amount, but no Lender shall be responsible for the failure of any
other Lender to reimburse the Agent or the Administrative Agent for such other
Lender's ratable share of such amount. Without prejudice to the survival of any
other agreement of any Lender hereunder, the agreement and obligations of each
Lender contained in this Section 7.05 shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 7.06. Successor Agents and Administrative Agents. The
Agent and the Administrative Agent may resign at any time by giving written
notice thereof to the Lenders and the Borrower, and the Agent or the
Administrative Agent may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent or Administrative Agent, as
the case may be. If no successor Agent or successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's or Administrative Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent or Administrative Agent, then the retiring Agent or Administrative Agent,
as appropriate, may, on behalf of the Lenders, appoint a successor Agent or
Administrative Agent, as appropriate, which shall be a commercial bank organized
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent or as Administrative
Agent hereunder by a successor Administrative Agent, and, in the case of a
successor Agent, upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as may
be necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Agent or Administrative Agent, as the case
may be, shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the retiring Agent or Administrative Agent,
as applicable, and the retiring Agent or Administrative Agent shall be
discharged from its duties and obligations under the Loan Documents. After any
retiring Agent's or Administrative Agent's resignation or removal hereunder as
Agent or Administrative Agent, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent or Administrative Agent, as the case may be, under this Agreement.
<PAGE> 46
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all of the Lenders, do any of
the following at any time: (i) waive any of the conditions specified in Section
3.01 or, in the case of the initial Borrowing, Section 3.02, (ii) change the
number of Lenders or the percentage of (x) the Commitments, or (y) the aggregate
unpaid principal amount of the Advances, in each case, which shall be required
for the Lenders or any of them to take any action hereunder, (iii) release any
material portion of the Collateral in any transaction or series of related
transactions or permit the creation, incurrence, assumption or existence of any
Lien on any item of Collateral in any transaction or series of related
transactions to secure any Obligations other than Obligations owing to the
Secured Parties under the Loan Documents, (iv) amend this Section 8.01, (v)
increase the Commitments of the Lenders or subject the Lenders to any additional
obligations, (vi) reduce the principal of, or interest on, the Notes or any fees
or other amounts payable hereunder, (vii) postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other amounts
payable hereunder, or (viii) limit the liability of any Loan Party under any of
the Loan Documents; provided further that no amendment, waiver or consent shall,
unless in writing and signed by the the Administrative Agent or the Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent or the Agent, as the case may be, under this
Agreement, the Notes or the Collateral Documents. The Administrative Agent shall
be authorized to modify Schedules 2.01(a) and 2.01(b) in the event of the
assignment of any Commitment hereunder.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to the Borrower, at its address at 1239
O.G. Skinner Drive, West Point, Georgia 31833 Attention: Rick Astor; if to any
Lender, at its address specified to the Administrative Agent; if to the Agent,
at its address at 740 East Campbell Road, Richardson Texas 75081; and if to the
Administrative Agent, at its address at 175 Water Street, New York, NY 10038,
Attention: Robert Karlovits and Jeff Dykes; or, as to the Borrower, the Agent or
the Administrative Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower, the Agent and the Administrative Agent. All such notices and
communications shall, when mailed, telegraphed, telecopied or telexed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively, except
that notices and communications to the Administrative Agent pursuant to Article
II, III or VII shall not be effective until received by the Administrative
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the
<PAGE> 47
Notes or of any Exhibit hereto to be executed and delivered hereunder shall be
effective as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender, the Agent or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) all costs and expenses of the Agent and the Administrative
Agent in connection with the preparation, execution and delivery of the Loan
Documents up to an amount not to exceed the amount separately agreed prior to
the date hereof, (ii) all costs and expenses in connection with filing,
recording and the granting and perfection of, the security interests in the
Collateral, (iii) the reasonable fees and expenses of counsel for each of the
Agent and the Administrative Agent with respect thereto, with respect to
advising each of the Agent and the Administrative Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating in
or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (iv) all
costs and expenses of the Agent, the Administrative Agent and the Lenders in
connection with the enforcement of the Loan Documents, whether in any action,
suit or litigation, any bankruptcy, insolvency or other similar proceeding
affecting creditors' rights generally (including, without limitation, the
reasonable fees and expenses of counsel for the Agent, the Administrative Agent
and each Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Agent, the Administrative Agent and each Lender and each of their Affiliates and
their officers, directors, employees, agents and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of, or in
connection with the preparation for a defense of, any investigation, litigation
or proceeding arising out of, related to or in connection with this Agreement,
the actual or proposed use of the proceeds of the Advances, the Loan Documents
or any of the transactions contemplated thereby, in each case whether or not
such investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated, except to the extent such claim, damage,
loss, liability or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct.
(c) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Section 2.06 and this Section 8.04
shall survive the payment in full of
<PAGE> 48
principal, interest and all other amounts payable hereunder and under any of the
other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender and each of its respective Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and otherwise apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the
credit or the account of the Borrower against any and all of the Obligations of
the Borrower now or hereafter existing under this Agreement and the Note or
Notes (if any) held by such Lender, irrespective of whether such Lender shall
have made any demand under this Agreement or such Note or Notes and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its respective Affiliates under this
Section are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender and its respective
Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, the Agent and the
Administrative Agent and when the Agent shall have been notified by each Initial
Lender that such Initial Lender has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Agent, the Administrative
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may assign to one or more Persons all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it and the Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a constant, and not
a varying, percentage of all rights and obligations under and in respect of one
or more Facilities, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an assignment of all of a
Lender's rights and obligations under this Agreement, the amount of the
Commitments of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment Agreement with respect
to such assignment) shall in no event be less than $5,000,000; (iii) each such
assignment shall be to an Eligible Assignee, and (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment Agreement, together with
(x) any Note subject to such assignment and (y) a processing and recordation fee
of $3,500 (provided, however, that no such fee shall be required to be paid in
connection with the processing and recordation of any of the first six
Assignment Agreements pursuant to which all or part of a Lender's Series B
Commitment and/or any Series B Advances owing to any Lender are assigned). Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment Agreement, (x) the assignee thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment Agreement, have the rights and
<PAGE> 49
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, relinquish its rights and be released
from its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such Lender shall cease to be a party
hereto).
(b) By executing and delivering an Assignment Agreement, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment Agreement, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Loan Party or the performance or
observance by any Loan Party of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment Agreement; (iv) such assignee will,
independently and without reliance upon the Agent, the Administrative Agent,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes each of the Agent and the Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the Agent and the Administrative Agent by the
terms hereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment Agreement delivered to and
accepted by it and a register for the recordation of the names and addresses of
the Lenders and the Commitment under each Facility of, and principal amount of
the Advances owing under each Facility to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment Agreement executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any Note or Notes subject to such assignment, the Administrative
Agent shall, if such Assignment Agreement has been completed and is in
substantially the form of Exhibit G hereto, (i) accept such
<PAGE> 50
Assignment Agreement, (ii) record the information contained therein in the
Register, (iii) give prompt notice thereof to the Borrower, and (iv) give prompt
notice to the Borrower of the request, if any, by such assignee and/or by the
assigning Lender in respect of the Commitment retained by it under any Facility,
for the execution of a new Note or Notes pursuant to Section 2.03(b). Within
five Business Days after its receipt of the notice referred to in clause (iv)
above, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent (in exchange for the surrendered Note(s), if any) a new
Note or Notes, as applicable, (x) to the order of such assignee, in an amount
equal to the Commitment assumed by it under a Facility pursuant to such
Assignment Agreement, and/or (y) to the order of the assigning Lender, in an
amount equal to the Commitment retained by it under such Facility. Any new Note
or Notes issued to any Lender shall be in an aggregate principal amount equal to
the aggregate principal amount of the Commitment assumed or retained by such
Lender, shall be dated the effective date of such Assignment Agreement and shall
otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks
or other entities (other than the Borrower or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes held by it); provided, however, that (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitments
to the Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Agent, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, (v) no such participation shall result in any increased costs to the
Borrower and (vi) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of this Agreement or
any Note, or any consent to any departure by the Borrower therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Notes or any fees or
other amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
by or on behalf of the Borrower; provided that, prior to any such disclosure,
the assignee or participant or proposed assignee or participant shall agree to
be bound by the confidentiality provisions set forth in Section 8.12 of this
Agreement.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of
<PAGE> 51
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 8.09. Jurisdiction, Etc. (a) The Borrower hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, 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 any such New York State
court or, to the extent permitted by law, in such federal court. The Borrower
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 shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Loan Documents in the courts of
any jurisdiction.
(b) The Borrower hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that 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 of the
other Loan Documents to which it is a party in any New York State or federal
court. The Borrower 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.
SECTION 8.10. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.11. Waiver of Jury Trial. Each of the Borrower and
the Lenders irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances or the
actions of the Agent, the Administrative Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
SECTION 8.12. Confidentiality. None of the Agent, the
Administrative Agent, the Lenders or the Borrower shall disclose the terms of
this Agreement, the other Loan Documents or the transactions contemplated
thereby to any Person without the consent of the other parties hereto, other
than (a) to the Agent's, the Administrative Agent's, the Lender's or the
Borrower's Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective Eligible Assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority.
SECTION 8.13. Modification of Financial Tests. Prior to
January 31, 1998, the Borrower and Lenders shall negotiate in good faith
financial tests consisting of (a) a ratio of EBITDA to debt service of Powertel
and its Subsidiaries, (b) a ratio of Debt to EBITDA of
<PAGE> 52
Powertel and its Subsidiaries and (c) a level of maximum capital expenditure, in
each case, based upon the business plan for 1998 delivered by the Borrower to
the Lenders in accordance with Section 5.03(d).
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
POWERTEL PCS, INC., as Borrower
By: /s/ Allen E. Smith
Name: Allen E. Smith
Title: President
ERICSSON INC., as a Lender and as Agent
By: /s/ Lawrence F. Lyles
Name: Lawrence F. Lyles
Title: Vice President/General Counsel
NATIONAL WESTMINSTER BANK PLC,
as a Lender and as Administrative Agent
By: /s/ Jeffry S. Dykes
Name: Jeffry S. Dykes
Title: Vice President
<PAGE> 54
CREDIT SUISSE FIRST BOSTON,
as a Lender
By: /s/ Barry A. Zamore
Name: Barry A. Zamore
Title: Associate
By: /s/ Claire M. McCarthy
Name: Claire M. McCarthy
Title: Managing Director
CYPRESS TREE INVESTMENT
PARTNERS I, LTD., as a Lender
By: CYPRESS TREE
INVESTMENT MANAGEMENT
COMPANY, INC., as Portfolio
Manager
By: /s/ Philip C. Robbins
Name: Philip C. Robbins
Title: Vice President
FIRST ALLMERICA FINANCIAL
LIFE INSURANCE COMPANY, as a Lender
By: CYPRESS TREE
INVESTMENT MANAGEMENT
COMPANY, INC., as Attorney-in-Fact and
Portfolio Manager
By: /s/ Philip C. Robbins
Name: Philip C. Robbins
Title: Vice President
<PAGE> 55
GENERAL ELECTRIC CAPITAL
CORPORATION (TFS), as a Lender
By: /s/ L.W. Middleton
Name: L.W. Middleton
Title: A. Secretary
GOLDMAN SACHS CREDIT PARTNERS
L.P., as a Lender
By: /s/ Stephen B. King
Name: Stephen B. King
Title: Authorized Signatory
MERRILL LYNCH, PIERCE, FENNER &
SMITH, INCORPORATED, as a Lender
By: /s/ Thomas J. Gahan
Name: Thomas J. Gahan
Title: Managing Director
<PAGE> 56
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC., as a Lender
By: /s/ Thomas J. Gahan
Name: Thomas J. Gahan
Title: Managing Director
OCTAGON CREDIT INVESTORS
LOAN PORTFOLIO (A UNIT OF THE
CHASE MANHATTAN BANK),
as a Lender
By: /s/ Andrew D. Gordon
Name: Andrew D. Gordon
Title: Managing Director
KZH HOLDING CORPORATION III,
as a Lender
By: /s/ Virginia R. Conway
Name: Virginia R. Conway
Title: Authorized Agent
<PAGE> 57
PRIME INCOME TRUST,
as a Lender
By: /s/ Rafael Scolari
Name: Rafael Scolari
Title: S.V.P. Portfolio Manager
PUTNAM HIGH YIELD ADVANTAGE
FUND, as a Lender
By: /s/ John R. Verani
Name: John R. Verani
Title: Vice President
PUTNAM HIGH YIELD TRUST,
as a Lender
By: /s/ John R. Verani
Name: John R. Verani
Title: Vice President
PUTNAM VARIABLE TRUST - HIGH
YIELD FUND, as a Lender
By: /s/ John R. Verani
Name: John R. Verani
Title: Vice President
<PAGE> 58
THE TORONTO-DOMINION BANK,
as a Lender
By: /s/ David G. Parker
Name: David G. Parker
Title: Vice President
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST,
as a Lender
By: /s/ Jeffrey W. Mailet
Name: Jeffrey W. Mailet
Title: Senior Vice President & Director
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF POWERTEL, INC. FOR THE QUARTER ENDED MARCH 31, 1998 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> MAR-31-1998
<EXCHANGE-RATE> 1
<CASH> 241,433
<SECURITIES> 33,375
<RECEIVABLES> 20,233
<ALLOWANCES> 2,608
<INVENTORY> 23,335
<CURRENT-ASSETS> 325,420
<PP&E> 576,232
<DEPRECIATION> (62,634)
<TOTAL-ASSETS> 1,319,236
<CURRENT-LIABILITIES> 60,384
<BONDS> 802,998
0
4
<COMMON> 270
<OTHER-SE> 260,142
<TOTAL-LIABILITY-AND-EQUITY> 1,319,236
<SALES> 6,646
<TOTAL-REVENUES> 36,723
<CGS> 17,425
<TOTAL-COSTS> 72,744
<OTHER-EXPENSES> (5,282)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 26,951
<INCOME-PRETAX> (57,690)
<INCOME-TAX> 0
<INCOME-CONTINUING> (57,690)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (57,690)
<EPS-PRIMARY> (2.14)
<EPS-DILUTED> (2.14)
</TABLE>
