<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
------------- -------------
COMMISSION FILE NUMBER 000-28160
WESTERN WIRELESS CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
WASHINGTON 91-1638901
- -------------------------------- --------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
3650 131ST AVENUE S.E., #400,
BELLEVUE, WASHINGTON 98006
- ---------------------------------------- --------------------------------
(Address of principal executive offices) (Zip Code)
(425) 586-8700
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
2001 NW SAMMAMISH ROAD, ISSAQUAH, WASHINGTON, 98027
- --------------------------------------------------------------------------------
(Former name, former address and former fiscal year, if changed since
last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
Title Shares Outstanding as of July 27, 1998
- ------------------------------------------------------------------------------------------------
<S> <C>
Class A Common Stock, no par value 37,098,922
Class B Common Stock, no par value 38,770,029
</TABLE>
<PAGE> 2
WESTERN WIRELESS CORPORATION
FORM 10-Q
FOR THE QUARTER ENDED JUNE 30, 1998
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
Consolidated Balance Sheets
as of June 30, 1998, and December 31, 1997.................................3
Consolidated Statements of Operations
for the Three and Six Months Ended June 30, 1998, and June 30, 1997........4
Consolidated Statements of Cash Flows
for the Six Months Ended June 30, 1998, and June 30, 1997..................5
Notes to Consolidated Financial Statements.................................6
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS ............................11
PART II - OTHER INFORMATION........................................................20
ITEM 1. LEGAL PROCEEDINGS.........................................................20
ITEM 2. CHANGES IN SECURITIES.....................................................20
ITEM 3. DEFAULTS UPON SENIOR SECURITIES...........................................20
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.......................20
ITEM 5. OTHER INFORMATION.........................................................20
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K..........................................21
</TABLE>
2
<PAGE> 3
WESTERN WIRELESS CORPORATION
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
----------- -----------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 34,391 $ 15,459
Accounts receivable, net of allowance for doubtful accounts of
$11,689 and $9,931, respectively 56,355 55,652
Inventory 27,513 36,425
Prepaid expenses and other current assets 21,585 31,216
----------- -----------
Total current assets 139,844 138,752
Property and equipment, net of accumulated depreciation
of $286,954 and $221,031, respectively 705,878 699,129
Licensing costs and other intangible assets, net of accumulated
amortization of $83,788 and $73,049, respectively 824,553 807,409
Investments in and advances to unconsolidated affiliates 73,859 64,156
Other assets 10,910 10,527
----------- -----------
$ 1,755,044 $ 1,719,973
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 14,673 $ 11,519
Accrued liabilities 96,270 104,595
Construction accounts payable 23,283 14,431
----------- -----------
Total current liabilities 134,226 130,545
----------- -----------
Long-term debt 1,315,000 1,395,000
----------- -----------
Commitments (Note 4)
Minority interest in consolidated subsidiary 103,441
-----------
Shareholders' equity:
Preferred stock, no par value, 50,000,000 shares authorized;
no shares issued and outstanding
Common stock, no par value, 300,000,000 shares authorized; Class A,
37,077,727 and 22,201,336 shares issued and outstanding, respectively,
and; Class B, 38,770,028 and 53,431,163 shares issued
and outstanding, respectively 801,392 675,036
Deferred compensation (2,062) (845)
Deficit (596,953) (479,763)
----------- -----------
Total shareholders' equity 202,377 194,428
----------- -----------
$ 1,755,044 $ 1,719,973
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements
3
<PAGE> 4
WESTERN WIRELESS CORPORATION
CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three months ended June 30, Six months ended June 30,
-------------------------------- --------------------------------
1998 1997 1998 1997
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Revenues:
Subscriber revenues $ 107,597 $ 71,003 $ 205,843 $ 127,688
Roamer revenues 13,902 8,873 25,033 15,567
Equipment sales and other revenues 13,413 10,766 24,549 18,947
------------ ------------ ------------ ------------
Total revenues 134,912 90,642 255,425 162,202
------------ ------------ ------------ ------------
Operating expenses:
Cost of service 25,312 22,286 48,321 42,523
Cost of equipment sales 24,581 22,442 46,510 35,507
General and administrative 41,869 25,486 80,308 50,189
Sales and marketing 37,464 32,496 69,296 57,021
Depreciation and amortization 37,652 33,201 75,201 59,622
------------ ------------ ------------ ------------
Total operating expenses 166,878 135,911 319,636 244,862
------------ ------------ ------------ ------------
Operating loss (31,966) (45,269) (64,211) (82,660)
------------ ------------ ------------ ------------
Other income (expense):
Interest and financing expense, net (30,611) (23,148) (61,799) (40,508)
Equity in net loss of unconsolidated
affiliates (4,906) (2,221) (14,065) (3,308)
Other, net 3,142 613 5,831 1,278
------------ ------------ ------------ ------------
Total other income (expense) (32,375) (24,756) (70,033) (42,538)
------------ ------------ ------------ ------------
Minority interest in net loss of consolidated
subsidiary 11,301 17,054
------------ ------------
Net loss $ (53,040) $ (70,025) $ (117,190) $ (125,198)
============ ============ ============ ============
Basic loss per common share $ (0.70) $ (1.00) $ (1.55) $ (1.79)
============ ============ ============ ============
Weighted average common shares used in
computing basic loss per common share 75,831,000 70,021,000 75,804,000 69,978,000
============ ============ ============ ============
</TABLE>
See accompanying notes to consolidated financial statements
4
<PAGE> 5
WESTERN WIRELESS CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six months ended June 30,
--------------------------
1998 1997
--------- ---------
<S> <C> <C>
Operating activities:
Net loss $(117,190) $(125,198)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization 75,201 59,622
Employee equity compensation 1,353 658
Equity in net loss of unconsolidated affiliates 14,065 3,308
Minority interest in net loss of consolidated subsidiary (17,054)
Other, net 2,127 2,211
Changes in operating assets and liabilities, net of effects
from consolidating acquired interests:
Accounts receivable, net (703) (6,466)
Inventory 8,912 (340)
Prepaid expenses and other current assets (5,369) 2,051
Accounts payable 3,154 1,553
Accrued liabilities 6,367 10,499
--------- ---------
Net cash used in operating activities (29,137) (52,102)
--------- ---------
Investing activities:
Purchase of property and equipment (63,531) (222,976)
Additions to licensing costs and other intangible assets (18,870) (53,412)
Acquisition of wireless properties, net of cash acquired (16,796) (849)
Investments in and advances to unconsolidated affiliates (11,885) (39,608)
Refund of deposit held by FCC 7,749
Other (457)
--------- ---------
Net cash used in investing activities (111,539) (309,096)
--------- ---------
Financing activities:
Proceeds from issuance of common stock, net 572 589
Additions to long term debt 330,000 322,000
Payment of debt (410,000)
Deferred financing fees, net (4,673)
Proceeds from sale of minority interest in consolidated
subsidiary, net 243,709
--------- ---------
Net cash provided by financing activities 159,608 322,589
--------- ---------
Change in cash and cash equivalents 18,932 (38,609)
Cash and cash equivalents, beginning of period 15,459 54,885
--------- ---------
Cash and cash equivalents, end of period $ 34,391 $ 16,276
========= =========
</TABLE>
See accompanying notes to consolidated financial statements
5
<PAGE> 6
WESTERN WIRELESS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. ORGANIZATION:
Western Wireless Corporation (the "Company") provides wireless
communications services in the western United States principally through the
ownership and operation of cellular and personal communications services ("PCS")
systems. The cellular operations are primarily in rural areas and the PCS
operations are primarily in urban areas due to the Company's belief that there
are certain strategic advantages to operating each technology in these
respective areas. As of June 30, 1998, the Company provides cellular services in
72 Rural Service Areas ("RSA") and 16 Metropolitan Statistical Areas and through
its 80.1% ownership in VoiceStream Wireless Corporation ("VoiceStream"),
formerly known as Western PCS Corporation, provides PCS services in seven Major
Trading Areas ("MTA"). VoiceStream holds limited partnership interests in joint
ventures which own PCS licenses in 21 Basic Trading Areas ("BTA"), one of which
is operational and managed by VoiceStream under its PCS brand name. In
addition, VoiceStream manages another BTA under its PCS brand name.
The Company expects to incur significant operating losses and to
generate negative cash flows from operating activities during the next several
years while it develops and constructs its PCS systems and builds a PCS customer
base.
The accompanying interim consolidated financial statements and the
financial information included herein are unaudited, but reflect all adjustments
which are, in the opinion of management, necessary for a fair presentation of
the financial position, results of operations and cash flows for the periods
presented. All such adjustments are of a normal, recurring nature. Results of
operations for interim periods presented herein are not necessarily indicative
of results of operations for the entire year. For further information, refer to
the Company's annual audited financial statements and footnotes thereto for the
year ended December 31, 1997, contained in the Company's Form 10-K dated March
27, 1998.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Loss per common share:
Loss per common share is calculated using the weighted average number
of shares of outstanding common stock during the period. The number of shares
outstanding has been calculated based on the requirements of Statement of
Financial Accounting Standards No. 128, "Earnings Per Share." Due to the net
loss incurred during the periods presented, all options outstanding are
anti-dilutive, thus basic and diluted loss per share are equal.
Supplemental cash flow disclosure:
Non-cash operating activities consisted of a $15.0 million reduction in
other current assets due to the release of restricted cash from escrow for the
final payment on the acquisition of Triad Cellular L.P. and certain of its
affiliates in the first quarter of 1998. Non-cash investing activities consisted
of a $12.3 million contribution of wireless licenses to a joint venture, which
occurred in the first quarter of 1998.
Cash paid for interest (net of amounts capitalized) was $64.5 million
and $34.2 million for the six months ended June 30, 1998 and 1997, respectively.
There was no interest capitalized for the six months ended June 30, 1998.
Interest capitalized for the six months ended June 30, 1997, was $4.0 million.
Reclassifications:
Certain amounts in prior year's financial statements have been
reclassified to conform to the 1998 presentation.
6
<PAGE> 7
WESTERN WIRELESS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
3. LONG-TERM DEBT:
<TABLE>
<CAPTION>
(Dollars in thousands) JUNE 30, DECEMBER 31,
1998 1997
---------- ----------
<S> <C> <C>
Credit Facility:
Revolver ............................... $ 415,000 $ 495,000
Term Loan .............................. 200,000 200,000
PCS Credit Facility:
Revolver ............................... 50,000
Term loan .............................. 250,000
10-1/2% Senior Subordinated Notes Due 2006.... 200,000 200,000
10-1/2% Senior Subordinated Notes Due 2007.... 200,000 200,000
PCS Vendor Facility .......................... 300,000
---------- ----------
$1,315,000 $1,395,000
========== ==========
</TABLE>
The Company has a $950 million credit facility with a consortium of
lenders (the "Credit Facility"), in the form of a $750 million revolving credit
loan (the "Revolver") and a $200 million term loan (the "Term Loan").
In June 1998, a wholly owned subsidiary of VoiceStream (the "PCS
Borrower") entered into a $1 billion credit facility with a consortium of
lenders (the "PCS Credit Facility"). The PCS Credit Facility consists of $500
million in revolving credit and $250 million in a delayed draw term
loan (collectively the "PCS Revolver"), and a term loan (the "PCS Term loan")
for $250 million. The PCS Borrower must borrow the remaining $200 million
delayed draw portion of the PCS Revolver by December 31, 1998, or lose access
to such. In addition, the PCS Borrower must raise an additional $200 million
before gaining access to the remaining $500 million of the PCS Revolver.
Beginning September 2001, the amount available to borrow under the PCS
Revolver and the principal balance of the PCS Term Loan are to be reduced by
various percentages each year. The PCS Revolver and the PCS Term Loan are due
in their entirety on December 31, 2006 and June 30, 2007, respectively. The PCS
Credit Facility also contains certain financial covenants, which, among other
things, impose limitations on the amount of indebtedness, limit the amount of
capital spending and impose limitations on acquisitions and investments. The
repayment of the PCS Credit Facility is secured by, among other things, the
grant of a security interest in substantially all of the assets of the PCS
Borrower.
Any loan shall, at the option of the PCS Borrower, be made as a Base
Rate Advance or Eurodollar Advance. Under the PCS Credit Facility, interest is
payable at an applicable margin in excess of the prevailing rate. The applicable
margin on the PCS Credit Facility is determined quarterly based on certain
events and the leverage ratio of the PCS Borrower. During June 1998, all loans
under the PCS Credit Facility had been borrowed using the Eurodollar option. The
PCS Credit Facility also provides for an annual fee ranging from 0.375% to 0.5%
on the unused commitment, payable quarterly.
Immediately following the acquisition of the PCS Credit Facility, a
wholly owned subsidiary of VoiceStream paid off, in its entirety, the balance
owed under the $300 million PCS Vendor Facility.
7
<PAGE> 8
WESTERN WIRELESS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
3. LONG-TERM DEBT - (CONTINUED):
The aggregate amounts of principal maturities of the Company's debt are
as follows (dollars in thousands):
<TABLE>
<CAPTION>
<S> <C>
Six months ending December 31, 1998 ............ $ 0
Year ending December 31,
1999 ........................................... 0
2000 ........................................... 0
2001 ........................................... 48,000
2002 ........................................... 71,750
Thereafter ..................................... 1,195,250
----------
$1,315,000
==========
</TABLE>
4. COMMITMENTS:
Future minimum payments required under operating leases and
agreements that have initial or remaining noncancellable terms in excess
of one year as of June 30, 1998, are summarized below (dollars in
thousands):
<TABLE>
<S> <C>
Six months ending December 31, 1998 ............... $ 14,205
Year ending December 31,
1999 .............................................. 26,216
2000 .............................................. 24,141
2001 .............................................. 18,867
2002 .............................................. 11,080
Thereafter ........................................ 30,604
--------
$125,113
========
</TABLE>
Aggregate rental expense for all operating leases was approximately
$7.9 million and $7.2 million for the three months ended June 30, 1998 and 1997,
respectively, and $14.7 million and $13.6 million for the six months ended June
30, 1998 and 1997, respectively.
In order to ensure adequate supply and availability of certain
inventory requirements and service needs, the Company has committed to purchase
from various suppliers, wireless communications equipment, handsets, and
services. These agreements expire at various dates through the year 2003. The
aggregate amount of these commitments total approximately $573 million. At June
30, 1998, the Company has ordered approximately $362 million under all of these
agreements, of which approximately $32 million is outstanding.
The Company has various other purchase commitments for materials,
supplies and other items incidental to the ordinary course of business which are
neither significant individually nor in the aggregate. Such commitments are not
at prices in excess of current market value.
8
<PAGE> 9
WESTERN WIRELESS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
5. MINORITY INTEREST IN CONSOLIDATED SUBSIDIARY:
In February 1998, the Company and its subsidiary, VoiceStream,
consummated an agreement with Hutchison Telecommuications Limited ("HTL") and a
subsidiary of HTL (the "HTL Sub") pursuant to which the HTL Sub purchased 19.9%
of VoiceStream for an aggregate purchase price of $248.4 million. The Company
and VoiceStream have amended certain outstanding financing agreements to which
they are subject, and unless otherwise agreed to by HTL Sub and the Company,
neither the Company nor VoiceStream shall have any liability regarding any
indebtedness of the other. The HTL Sub has the right to designate two directors
to a ten person Board of Directors of VoiceStream, which directors have
certain rights with respect to certain transactions and actions of VoiceStream.
As of June 30, 1998, HTL Sub's portion of VoiceStream's net loss was $11.3
million and $17.1 million for the three and six months ended June 30, 1998,
respectively.
6. SHAREHOLDERS' EQUITY:
During the six months ended June 30, 1998, the Company issued 115,257
shares of its Class A Common Stock as a result of employee stock options that
were exercised.
In May 1998, the Company completed a secondary offering on form S-3
(the "Secondary Offering") of 13,915,000 Class A Common Stock shares (including
on over-allotment exercised by the underwriters). The Company did not issue any
new primary shares and received no proceeds from the Secondary Offering. The
shares were offered by certain shareholders of the Company who elected to
convert a portion of their Class B Common Stock into publicly traded Class A
Common Stock for sale pursuant to a registration statement. No member of
management of the Company sold any shares in the Secondary Offering.
In February 1998, the Company received additional paid in capital of
approximately $123.2 million related to the sale of a 19.9% interest in
VoiceStream. This represents the amount in excess of the book value of
VoiceStream for the 19.9% interest purchased by the HTL Sub.
In January 1998, the Company issued 100,000 Class A Common Stock shares
to certain key executives pursuant to an Executive Restricted Stock Plan.
7. ACQUISITIONS AND OTHER TRANSACTIONS:
In the second quarter of 1998, the Company purchased the Nebraska 5 RSA
for approximately $15.5 million in cash. Prior to the purchase of the Nebraska 5
RSA, the Company operated this market under an Interim Operating Authority from
the Federal Communications Commission ("FCC").
In June 1998, a wholly owned subsidiary of the Company, through a
controlling interest in a partnership (the "Ireland Partnership"), was notified
by the Office of the Director of Telecommunications Regulation that it was the
preferred applicant for a DCS-1800/GSM 900 mobile communications license in
Ireland. The amount bid by the Ireland Partnership on this license was $16.2
million, including related fees. The license has not yet been granted and the
terms of the purchase are in the process of being negotiated.
During the second quarter of 1998, Cook Inlet Western Wireless PV/SS
PCS, LP ("Cook Inlet PCS"), a partnership in which a subsidiary of VoiceStream
holds a 49.9% limited partnership interest, participated in the C Block
restructuring options provided by the FCC. The FCC provided for various options,
two of which were, 1) the option to return to the FCC entire licenses purchased
in the C Block auction and be relieved of 100% of the related debt ("Amnesty")
or, 2) to return 15 mhz, from a total of 30 mhz, of the licenses purchased in
the auction and be relieved of one half of the related debt ("Dissagregation").
Of the licenses purchased in the C Block auction Cook Inlet PCS chose Amnesty
for the two BTAs in the Dallas MTA and Dissagregation for the remaining 11
BTA licenses. This resulted in a reduction of Cook Inlet PCS's debt of $29.1
million and a gain of $3.9 million, due to the retroactive adjustment of
interest due on the related debt, the effect of which reduced the equity
losses picked up by the Company for the second quarter operations.
9
<PAGE> 10
WESTERN WIRELESS CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
7. ACQUISITIONS AND OTHER TRANSACTIONS - (CONTINUED):
Additionally, in July 1998, VoiceStream entered into an agreement to
form a joint venture with third parties that will operate certain PCS licenses
in the south Texas region under the VoiceStream brand name. VoiceStream's
ownership percentage will be less than 25% with an initial contribution to the
venture of certain licenses that it purchased in the FCC's D and E Block
auction valued at approximately $2.5 million.
In the first quarter of 1998, the Company was granted 52 Local
Multipoint Distribution Service (LMDS) licenses that it was the high bidder on
in an FCC auction. The Company paid approximately $14.9 million for these
licenses.
10
<PAGE> 11
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
CAUTIONARY STATEMENT FOR PURPOSES OF THE "SAFE HARBOR" PROVISIONS OF THE PRIVATE
LITIGATION REFORM ACT OF 1995.
Statements contained or incorporated by reference Statements contained herein
that are not based on historical fact, including without limitation statements
containing the words "believes," "may," "will," "estimate," "continue,"
"anticipates," "intends," "expects" and words of similar import, constitute
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. Such forward-looking statements involve known and
unknown risks, uncertainties and other factors that may cause the actual
results, events or developments to be materially different from any future
results, events or developments expressed or implied by such forward-looking
statements. Such factors include, among others, the following: general economic
and business conditions, both nationally and in the regions in which the Company
operates; technology changes; competition; changes in business strategy or
development plans; the high leverage of the Company; the ability to attract and
retain qualified personnel; existing governmental regulations and changes in, or
the failure to comply with, governmental regulations; liability and other claims
asserted against the Company; and other factors referenced in the Company's
filings with the Securities and Exchange Commission. Given these uncertainties,
readers are cautioned not to place undue reliance on such forward-looking
statements. The Company disclaims any obligation to update any such factors or
to publicly announce the result of any revisions to any of the forward-looking
statements contained herein to reflect future results, events or developments
The following is a discussion and analysis of the consolidated
financial condition and results of operations of the Company and should be read
in conjunction with the Company's consolidated financial statements and notes
thereto and other financial information included herein and in the Company's
annual report on Form 10-K for the year ended December 31, 1997. As a result of
acquisitions and due to the phase of the business cycle of the Company's PCS
operations, the Company's operating results for prior periods may not be
indicative of future performance.
OVERVIEW
The Company provides wireless communications services in the western
United States through the ownership and operation of cellular and personal
communication services ("PCS") systems. The Company owns and operates cellular
communications systems in 88 markets. Through its 80.1% ownership of VoiceStream
Wireless Corporation ("VoiceStream"), the Company owns and operates PCS systems
in seven Major Trading Areas ("MTA"). VoiceStream owns an additional 104 PCS
Basic Trading Areas ("BTA") licenses which are not operational. VoiceStream
holds limited partnership interests in joint ventures which own PCS licenses in
21 BTAs, one of which is operational and managed by VoiceStream under it's PCS
brand name. The results of operations of these joint ventures are not included
in the following discussion of PCS operations. In addition, VoiceStream manages
another BTA under it's PCS brand name.
In the comparisons that follow, the Company has separately set forth
certain information relating to cellular operations (including paging) and PCS
operations. The Company believes that this is appropriate because its cellular
systems have been operating for a number of years and operate in rural markets
while its PCS systems did not commence operations until 1996 and operate in
urban markets.
RESULTS OF OPERATIONS FOR THE THREE MONTHS ENDED JUNE 30, 1998 AND 1997
CELLULAR OPERATIONS
The Company had 583,300 cellular subscribers at June 30, 1998,
representing an increase of 36,200 or 6.6% from March 31, 1998. At June 30,
1997, the Company had 389,900 cellular subscribers representing an increase of
38,700 or 11.0% from March 31, 1997.
During the fourth quarter of 1997, the Company purchased from Triad
Cellular L.P. and certain of its affiliates (collectively "Triad"), the cellular
business and assets of 12 Rural Service Areas ("RSA") in Texas, Utah, Oklahoma
and Minnesota. Therefore, the operating results of the Company's cellular
business compared to the periods prior to this purchase may not be indicative of
future performance.
11
<PAGE> 12
The following table sets forth certain financial data as it relates to
the Company's cellular operations:
<TABLE>
<CAPTION>
(Dollars in thousands) THREE MONTHS ENDED JUNE 30,
---------------------------------------
1998 % CHANGE 1997
--------- --------- --------
<S> <C> <C> <C>
Cellular revenues:
Subscriber revenues.................. $ 80,757 38.1% $58,490
Roamer revenues...................... 13,210 48.9% 8,873
Equipment sales and other
revenues........................... 4,437 0.6% 4,409
-------- -------
Total revenues................... $ 98,404 $71,772
======== =======
Cellular operating expenses:
Cost of service..................... $ 13,711 20.2% $11,406
Cost of equipment sales............. 7,525 7.4% 7,009
General and administrative.......... 21,786 67.7% 12,989
Sales and marketing................. 19,444 26.7% 15,342
Depreciation and amortization....... 17,492 4.9% 16,674
-------- -------
Total operating expenses........ $ 79,958 $63,420
======== =======
</TABLE>
CELLULAR REVENUES
The increase in subscriber revenues is primarily due to the growth in
the number of subscribers offset by a decrease in the average monthly subscriber
revenue per average subscriber. Average monthly subscriber revenue per average
subscriber was $47.63 for the three months ended June 30, 1998, a 9.2% decline
from $52.46 for the three months ended June 30, 1997. Over the past few years
the cellular industry as a whole has also shown a decline in the average monthly
cellular subscriber revenue per subscriber.
The increase in roamer revenues is attributed to a normal seasonal
increase in roaming traffic and partially offset by a decrease in the rates
charged between carriers. A significant portion of the increase in roaming
traffic is a result of the acquisition of the Triad RSAs. While the Company
expects total roamer minutes to continue increasing, the decline in the rates
charged between carriers will limit the growth of roamer revenues.
Equipment sales, which consists primarily of handset sales, increased
primarily due to the increase in the number of handsets sold offset by a
decrease in the average handset sales price.
CELLULAR OPERATING EXPENSES
The increase in cost of service is primarily attributable to the
increased costs of maintaining the Company's expanding wireless network to
support the larger subscriber base, offset by a slight reduction in the rates
paid by the Company to access local exchange and long distance carrier
facilities. While cost of service increased, it decreased as a percentage of
service revenues to 14.4% for the three months ended June 30, 1998, from 16.6%
for the three months ended June 30, 1997, which is due primarily to efficiencies
gained from the growing subscriber base.
Cost of equipment sales increased primarily due to the increase in
handsets sold, offset by a decrease in the average cost of handsets, for the
three months ended June 30, 1998, compared to the three months ended June 30,
1997.
The Company's general and administrative costs are principally variable
costs, that is costs that will vary with the level of subscribers. The increase
in total dollars is primarily attributable to the increase in costs associated
with supporting a larger subscriber base. While the general and administrative
cost per average subscriber typically will decrease due to efficiencies gained
from a larger subscriber base, the general and administrative cost per average
subscriber increased to $12.85 for the three months ended June 30, 1998,
compared to $11.65 for the three months ended June 30, 1997. This increase is
the result of one time events that occurred in the second quarter of 1998,
including a secondary offering of the Company's common stock (Note 6 to this
quarter's consolidated financial statements) and a billing system conversion for
the former Triad subscribers.
The increase in sales and marketing costs is primarily due to the
increase in subscribers added during the three months ended June 30, 1998,
compared to the three months ended June 30, 1997. Sales and marketing cost per
net subscriber added, including the loss on equipment sales, increased to $656
for the three months
12
<PAGE> 13
ended June 30, 1998, from $500 for the three months ended June 30, 1997. This
increase is largely due to a growth in disconnected subscribers causing the
increase in costs to be spread over a similar amount of net subscriber
additions as in the prior year. The growth in disconnected subscribers is a
result of a slightly higher churn rate (representing customer attrition)
applied to a larger subscriber base.
The increase in depreciation and amortization expenses is attributable
to the continued expansion of the Company's cellular systems including the
acquisition of the Triad properties.
PCS OPERATIONS
The Company commenced its PCS operations in its first MTA in February
1996. Since that time, the Company has commenced operations in its six remaining
MTAs on various dates through May of 1997. Due to the various dates at which
each of the MTAs became operational, the revenues and expenses incurred may not
be representative of future operations. Additionally, during each period being
discussed, a portion of the operating expenses incurred in the Company's PCS
operations were related to start-up costs incurred prior to the commencement of
operations in each of the systems. Exclusive of depreciation and amortization
expense, which was not material, approximately $1.0 million of start-up costs
were incurred for the three months ended June 30, 1998, compared to $1.5 million
for the three months ended June 30, 1997. Start-up costs incurred in the second
quarter of 1998, primarily relate to non-construction costs incurred in the
effort to get the Seattle and Phoenix BTAs ready for operation.
The Company had 212,600 PCS subscribers at June 30, 1998, representing
an increase of 48,000 or 29.2% from March 31, 1998. At June 30, 1997, the
Company had 74,400 PCS subscribers, representing an increase of 25,400 or 51.8%
from March 31, 1997.
The following table sets forth certain financial data as it relates to
the Company's PCS operations:
<TABLE>
<CAPTION>
(Dollars in thousands) THREE MONTHS ENDED JUNE 30,
-----------------------------------------
1998 % CHANGE 1997
------------- ------------ ----------
<S> <C> <C> <C>
PCS revenues:
Service revenues.................... $ 27,532 120.0% $ 12,513
Equipment revenues.................. 8,976 41.2% 6,357
---------- ----------
Total revenues.................. $ 36,508 $ 18,870
========== ==========
PCS operating expenses:
Cost of service...................... $ 11,601 6.6% $ 10,880
Cost of equipment sales.............. 17,056 10.5% 15,433
General and administrative........... 20,083 60.7% 12,497
Sales and marketing.................. 18,020 5.0% 17,154
Depreciation and amortization........ 20,160 22.0% 16,527
---------- ----------
Total operating expenses......... $ 86,920 $ 72,491
========== ==========
</TABLE>
PCS REVENUES
The increase in service revenues is due to the increase in the number
of subscribers offset by a decrease in the average monthly subscriber revenue
per average subscriber. The increase in subscribers is due to the relative
maturity of the seven MTAs operating in the second quarter of 1998, the same
seven MTAs that were operating in the second quarter of 1997, and the Company's
"Get More" advertising campaign, featuring Jamie Lee Curtis, that was initiated
in the second quarter of 1998. Average monthly subscriber revenue per average
subscriber was $47.44 for the three months ended June 30, 1998, compared to
$68.64 for the three months ended June 30, 1997. The decrease in the average
monthly subscriber revenue per average subscriber is primarily due to the
relative maturity of the competitive environment in each of the operating
markets.
Equipment sales increased primarily as a result of increased sales of
handsets, offset by a decrease in the average handset selling price. While the
Company expects total equipment sales to continue to increase, the decline in
the average handset selling price will limit the growth of equipment sales.
13
<PAGE> 14
PCS OPERATING EXPENSES
Cost of service expenses, cost of equipment sales, and depreciation and
amortization expenses largely represent the expenses incurred by the operational
PCS systems. Accordingly, cost of service expenses, cost of equipment sales, and
depreciation and amortization expenses increased for the three months ended June
30, 1998, compared to the three months ended June 30, 1997. The relatively low
increase in cost of service is related to efficiencies gained from the growing
subscriber base as well as a reduction in rates paid by the Company to access
local exchange and long distance carrier facilities.
General and administrative costs increased due to the costs associated
with supporting the additional operating markets and larger subscriber base.
However, general and administrative costs per average subscriber decreased to
$35.49 for the three months ended June 30, 1998, compared to $68.51 for the same
quarter in 1997. This decrease is the result of efficiencies gained from a
growing subscriber base.
Sales and marketing costs increased as a result of the increase in net
subscriber additions and the effort to promote the Company's PCS brand name in a
greater number of markets. However, the sales and marketing cost per net
subscriber added, including the loss on equipment sales, decreased to $544 for
the three months ended June 30, 1998, from $1,033 for the same quarter in 1997.
This decrease is largely the result of a decrease in the churn rate in the
second quarter of 1998, compared to the same quarter in 1997. In addition, the
Company is seeing cost efficiencies from an increased growth in subscribers.
OTHER INCOME (EXPENSE)
Interest and financing expense increased to $30.6 million for the three
months ended June 30, 1998, compared to $23.1 million for the three months ended
June 30, 1997, due to the increase in long-term debt. Long-term debt was
incurred primarily to fund the Company's capital expenditures associated with
the build-out of the Company's PCS systems. Interest expense will continue to
increase in 1998 as a result of increased borrowings the Company has incurred,
and will continue to incur, to fund this expansion. The weighted average
interest rate, before the effect of capitalized interest, was 9.1% and 9.9% for
the three months ended June 30, 1998 and 1997, respectively.
EBITDA
"EBITDA" represents operating loss before depreciation and
amortization. EBITDA is a measure commonly used in the industry and should not
be construed as an alternative to operating income (loss) (as determined in
accordance with United States generally accepted accounting principles, "GAAP"),
as an alternative to cash flows from operating activities (as determined in
accordance with GAAP), or as a measure of liquidity. Cellular EBITDA represents
EBITDA from the Company's cellular operations and PCS EBITDA represents EBITDA
from the Company's PCS operations.
Consolidated EBITDA for the Company increased to $5.7 million for the
three months ended June 30, 1998, from negative $12.1 for the three months ended
June 30, 1997. This increase is due to the $35.9 million and $25.0 million
cellular EBITDA for the three months ended June 30, 1998 and 1997, respectively,
offset by a negative $30.3 million and negative $37.1 million PCS EBITDA for the
three months ended June 30, 1998 and 1997, respectively. The increase in
cellular EBITDA is primarily a result of increased revenues due to the increased
subscriber base and the related cost efficiencies gained. As a result, cellular
operating margin (cellular EBITDA as a percentage of cellular service revenues)
increased to 37.8% for the three months ended June 30, 1998, from 36.4% for the
three months ended June 30, 1997.
14
<PAGE> 15
RESULTS OF OPERATIONS FOR THE SIX MONTHS ENDED JUNE 30, 1998 AND 1997
CELLULAR OPERATIONS
The Company had 583,300 cellular subscribers at June 30, 1998,
representing an increase of 63,300 or 12.2% from December 31, 1997. At June 30,
1997, the Company had 389,900 cellular subscribers representing an increase of
65,700 or 20.3% from December 31, 1996.
During the fourth quarter of 1997, the Company purchased from Triad
Cellular L.P. and certain of its affiliates (collectively "Triad"), the cellular
business and assets of 12 Rural Service Areas ("RSA") in Texas, Utah, Oklahoma
and Minnesota. Therefore, the operating results of the Company's cellular
business compared to the periods prior to this purchase may not be indicative of
future performance.
The following table sets forth certain financial data as it relates to
the Company's cellular operations:
<TABLE>
<CAPTION>
(Dollars in thousands) SIX MONTHS ENDED JUNE 30,
---------------------------------------------
1998 % CHANGE 1997
------------ ------------ -------------
<S> <C> <C> <C>
Cellular revenues:
Subscriber revenues............. $ 156,860 45.4% $ 107,872
Roamer revenues................. 23,697 52.2% 15,567
Equipment sales and other
revenues...................... 8,477 (1.3%) 8,591
----------- ----------
Total revenues.............. $ 189,034 $ 132,030
=========== ==========
Cellular operating expenses:
Cost of service................. $ 25,598 13.9% $ 22,472
Cost of equipment sales......... 14,977 15.6% 12,952
General and administrative...... 42,048 58.2% 26,576
Sales and marketing............. 36,935 34.8% 27,397
Depreciation and amortization... 35,042 7.5% 32,598
----------- -------------
Total operating expenses.... $ 154,600 $ 121,995
=========== =============
</TABLE>
CELLULAR REVENUES
The increase in subscriber revenues is primarily due to the growth in
the number of subscribers offset by a decrease in the average monthly subscriber
revenue per average subscriber. Average monthly subscriber revenue per average
subscriber was $47.38 for the six months ended June 30, 1998, a 6.5% decline
from $50.69 for the six months ended June 30, 1997. Over the past few years the
cellular industry as a whole has also shown a decline in the average monthly
cellular subscriber revenue per subscriber.
The increase in roamer revenues is attributed to an increase in roaming
traffic and partially offset by a decrease in the rates charged between
carriers. A significant portion of the increase in roaming traffic is a result
of the acquisition of the Triad RSAs. While the Company expects total roamer
minutes to continue increasing, the decline in the rates charged between
carriers will limit the growth of roamer revenues.
Equipment sales, which consist primarily of handset sales, decreased
primarily due to the decrease in the average handset sales price, offset by the
increase in the number of handsets sold.
CELLULAR OPERATING EXPENSES
The increase in cost of service is primarily attributable to the
increased costs of maintaining the Company's expanding wireless network to
support the larger subscriber base, offset by a reduction in the rates paid by
the Company to access local exchange and long distance carrier facilities. While
cost of service dollars increased slightly, it decreased as a percentage of
service revenues to 14.0% for the six months ended June 30, 1998, from 17.8% for
the six months ended June 30, 1997, which is due primarily to efficiencies
gained from the growing subscriber base.
15
<PAGE> 16
Cost of equipment sales increased primarily due to the increase in
handsets sold, offset by a decrease in the average cost of handsets, for the six
months ended June 30, 1998, compared to the six months ended June 30, 1997.
The Company's general and administrative costs are principally
considered to be variable costs, that is costs that will vary with the level of
subscribers. The increase is primarily attributable to the increase in costs
associated with supporting the increased subscriber base. While the general and
administrative cost per average subscriber typically will decrease due to
efficiencies gained from a larger subscriber base, the general and
administrative cost per average subscriber increased to $12.70 for the six
months ended June 30, 1998, compared to $12.49 for the six months ended June 30,
1997. This increase is the result of one time events that occurred in the second
quarter of 1998, including a secondary offering of the Company's common stock
(Note 6 to this quarter's consolidated financial statements) and a billing
system conversion for the former Triad subscribers.
The increase in sales and marketing costs is primarily due to the
increase in subscribers added during the six months ended June 30, 1998,
compared to the six months ended June 30, 1997. Sales and marketing cost per net
subscriber added (excluding subscribers added from acquisitions), including the
loss on equipment sales, increased to $729 for the six months ended June 30,
1998, from $524 for the six months ended June 30, 1997. This increase is largely
to a growth in disconnected subscribers causing the increase in costs to be
spread over a similar amount of net subscriber additions as in the prior year.
The growth in disconnected subscribers is a result of a slightly higher churn
rate (representing customer attrition) applied to a larger subscriber base.
The increase in depreciation and amortization expenses is attributable
to the continued expansion of the Company's cellular systems including the
acquisition of the Triad properties.
PCS OPERATIONS
The Company commenced its PCS operations in its first MTA in February
1996. Since that time, the Company has commenced operations in its six remaining
MTAs on various dates through May of 1997. Due to the various dates at which
each of the MTAs became operational, the revenues and expenses incurred may not
be representative of future operations. Additionally, during each period being
discussed, a portion of the operating expenses incurred by the Company's PCS
operations were related to start-up costs incurred prior to the commencement of
operations in each of the systems. Exclusive of depreciation and amortization
expense, which was not material, approximately $1.6 million of start-up costs
were incurred for the six months ended June 30, 1998, compared to $3.9 million
for the six months ended June 30, 1997. Start-up costs incurred in the six
months ended June 1998, primarily relate to non-construction costs incurred in
the effort to get the Seattle and Phoenix BTAs ready for operation.
The Company had 212,600 PCS subscribers at June 30, 1998, representing
an increase of 84,000 or 65.3% from December 31, 1997. At June 30, 1997, the
Company had 74,400 PCS subscribers, representing an increase of 38,900 or 109.6%
from December 31, 1996.
The following table sets forth certain financial data as it relates to
the Company's PCS operations:
<TABLE>
<CAPTION>
(Dollars in thousands) SIX MONTHS ENDED JUNE 30,
----------------------------------------------
1998 % CHANGE 1997
---------- ---------- ----------
<S> <C> <C> <C>
PCS revenues:
Service revenues .............. $ 50,319 153.9% $ 19,816
Equipment revenues ............ 16,072 55.2% 10,356
---------- ----------
Total revenues ............ $ 66,391 $ 30,172
========== ==========
PCS operating expenses:
Cost of service ............... $ 22,723 13.3% $ 20,051
Cost of equipment sales ....... 31,533 39.8% 22,555
General and administrative .... 38,260 62.0% 23,613
Sales and marketing ........... 32,361 9.2% 29,624
Depreciation and amortization.. 40,159 48.6% 27,024
---------- ----------
Total operating expenses... $ 165,036 $ 122,867
========== ==========
</TABLE>
16
<PAGE> 17
PCS REVENUES
The increase in service revenues is due to the increase in the number
of subscribers offset by a decrease in the average monthly subscriber revenue
per average subscriber. The increase in subscribers is due to the relative
maturity of the seven MTAs operating in the six months ended June 30, 1998,
compared to the same seven MTAs that were operating in the six months ended June
30, 1997. Average monthly subscriber revenue per average subscriber was $47.85
for the six months ended June 30, 1998, compared to $64.44 for the six months
ended June 30, 1997.
Equipment sales increased primarily as a result of increased sales of
handsets, offset by a decrease in the average handset selling price. While the
Company expects total equipment sales to continue to increase, the decline in
the average handset selling price will limit the growth of equipment sales.
PCS OPERATING EXPENSES
Cost of service expenses, cost of equipment sales, and depreciation and
amortization expenses largely represent the expenses incurred by the operational
PCS systems. Accordingly, cost of service expenses, cost of equipment sales, and
depreciation and amortization expenses increased for the six months ended June
30, 1998, compared to the six months ended June 30, 1997. The relatively low
increase in cost of service is related to efficiencies gained from the growing
subscriber base as well as a reduction in rates paid by the Company to access
local exchange and long distance carrier facilities.
General and administrative costs increased due to the costs associated
with supporting the additional operating markets and larger subscriber base.
However, general and administrative costs per average subscriber decreased to
$37.38 for the six months ended June 30, 1998, compared to $76.87 for the same
period in 1997. This decrease is the result of efficiencies gained from a
growing subscriber base.
Sales and marketing costs increased as a result of the increase in net
subscriber additions and the effort to promote the Company's PCS brand name in a
greater number of markets. However, the sales and marketing cost per net
subscriber added, including the loss on equipment sales, decreased to $569 for
the six months ended June 30, 1998, from $1,075 for the same period in 1997.
This decrease is largely the result of a decrease in the churn rate for the
six months ended June 30, 1998, compared to the same period in 1997. In
addition, the Company is seeing cost efficiencies from an increased growth in
subscribers.
OTHER INCOME (EXPENSE)
Interest and financing expense increased to $61.8 million for the six
months ended June 30, 1998, compared to $40.5 million for the six months ended
June 30, 1997, due to the increase in long-term debt. Long-term debt was
incurred primarily to fund the Company's capital expenditures associated with
the build-out of the Company's PCS systems. Interest expense will continue to
increase in 1998 as a result of increased borrowings the Company has incurred,
and will continue to incur, to fund this expansion. The weighted average
interest rate, before the effect of capitalized interest, was 9.1% and 10.1% for
the six months ended June 30, 1998 and 1997, respectively.
EBITDA
Consolidated EBITDA for the Company increased to $11.0 million for the
six months ended June 30, 1998, from negative $23.0 for the six months ended
June 30, 1997. This increase is due to the $69.5 million and $42.6 million
cellular EBITDA for the six months ended June 30, 1998 and 1997, respectively,
offset by a negative $58.5 million and negative $65.7 million PCS EBITDA for the
six months ended June 30, 1998 and 1997, respectively. The increase in cellular
EBITDA is primarily a result of increased revenues due to the increased
subscriber base and the related cost efficiencies gained. As a result, cellular
operating margin (cellular EBITDA as a percentage of cellular service revenues)
increased to 38.0% for the six months ended June 30, 1998, from 33.8% for the
six months ended June 30, 1997.
17
<PAGE> 18
LIQUIDITY AND CAPITAL RESOURCES
The Company has a credit facility (the "Credit Facility") with a
consortium of lenders providing for $750 million of revolving credit and a $200
million term loan. A wholly owned subsidiary of VoiceStream (the "PCS Borrower")
also has a credit facility (the "PCS Credit Facility") with a consortium of
lenders providing for $500 million of revolving credit and $500 million of term
loans. As of June 30, 1998, $615 million and $300 million were outstanding under
the Credit Facility and the PCS Credit Facility, respectively. Amounts available
for borrowing under the Credit Facility and the PCS Credit Facility, which are
limited by certain financial covenants and other restrictions, were $335 million
and $200 million, respectively. Indebtedness under the Credit Facility matures
on March 31, 2006. The PCS Credit Facility matures on December 31, 2006, for the
revolver and one $250 million term loan, and June 30, 2007 for the other $250
million term loan. Both the Credit Facility and the PCS Credit Facility bear
interest at variable rates. Substantially all the assets of the Company, other
than certain PCS licenses acquired in the Federal Communications Commission's
("FCC") D and E Block auctions and certain other assets, are pledged as security
for such indebtedness. The terms of the Credit Facility and the PCS Credit
Facility restrict, among other things, the sale of assets, distribution of
dividends or other distributions and loans.
In February 1998, a subsidiary of Hutchison Telecommunications Limited
("HTL") purchased 19.9% of the outstanding capital stock of VoiceStream for an
aggregate purchase price of $248.4 million. Approximately $135 million of the
proceeds are for use by VoiceStream to continued the build-out of its PCS
systems during 1998. The remainder of the proceeds was paid to the Company as a
repayment of advances made to VoiceStream and was used by the Company to reduce
amounts outstanding under the Credit Facility.
In June, 1998, a wholly owned subsidiary of the Company, through a
controlling interest in a partnership (the "Ireland Partnership"), was notified
by the Office of the Director of Telecommunications Regulation that it was the
preferred applicant for a DCS-1800/GSM 900 mobile communications license in
Ireland. The amount bid by the Ireland Partnership on this license was $16.2
million, including related fees. The license has not yet been granted and the
terms of the purchase are under negotiation.
During the remainder of 1998, the Company anticipates spending
approximately $230 million on the construction of the build-out of the
Seattle-Tacoma, Phoenix and Tucson BTA systems, to provide funds to Cook Inlet
Western Wireless PV/SS PCS, LP ("Cook Inlet PCS") for the build-out of certain
BTA markets, and to expand the build-out of its PCS MTA systems. The Company
will utilize the remaining net proceeds of the HTL investment, other cash on
hand, the PCS Credit Facility and other sources of funding, for such purposes.
In addition, further funds (which may be significant) will be required to
finance the continued growth of its cellular and PCS operations, provide for
working capital and service debt. The Company believes such sources will be
sufficient for the operations of the business. The Company continues to consider
and expects to pursue additional sources of funding to enable the further
development of the PCS business. Such sources may included the issuance of
additional indebtedness and/or the sale of additional equity at the parent or
subsidiary level. There can be no assurance that such funds will be available to
the Company on acceptable or favorable terms.
Net cash used in operating activities was $29.1 million for the six
months ended June 30, 1998. Adjustments to the $117.2 million net loss to
reconcile to net cash used in operating activities included $75.2 million of
depreciation and amortization, $14.1 million for the equity in net loss of
unconsolidated affiliates due to the increase in activity in the Company's
interest in Cook Inlet PCS, and a $8.9 million decrease in inventory as a result
of a conscious effort to decrease inventory levels from December 1997. Net cash
used in operating activities was $52.1 million for the six months ended June 30,
1997.
Net cash used in investing activities was $111.5 million for the six
months ended June 30, 1998. Investing activities for such period consisted
primarily of purchases of property and equipment of $63.5 million, of which
$44.0 million was attributable to PCS capital expenditures, and $18.9 million of
additions to licensing costs and other intangible assets, primarily attributable
to 52 Local Multipoint Distribution Service (LMDS) licenses that the Company was
the high bidder on in an FCC auction. In addition, acquisitions of wireless
properties of $16.8 million in the six months ended June 30, 1998, consists
primarily of the Company's purchase of the Nebraska 5 RSA in the second quarter.
Net cash used in investing activities was $309.1 million for the six months
ended June 30, 1997.
Net cash provided by financing activities was $159.6 million for the
six months ended June 30, 1998. Financing activities for such period consisted
primarily of net proceeds from the sale of a minority interest in
18
<PAGE> 19
VoiceStream of $243.7 million, and the net reduction of long-term debt of $80
million. Net cash provided by financing activities was $322.6 million for the
six months ended June 30, 1997.
In the ordinary course of business, the Company continues to evaluate
acquisition opportunities, joint ventures and other potential business
transactions. Such acquisitions, joint ventures and business transactions may be
material. Such transactions may also require the Company to seek additional
sources of funding through the issuance of additional debt and/or additional
equity at the parent or subsidiary level. There can be no assurance that such
funds will be available to the Company on acceptable or favorable terms.
A wholly owned subsidiary of VoiceStream holds a 49.9% interest in Cook
Inlet PCS. Cook Inlet PCS is subject to the FCC's build-out requirements and
will require significant additional amounts to complete the build-out of its PCS
systems and to meet the government debt service requirements on the C and F
Block license purchase prices. The potential sources of such additional funding
include vendor loans, loans or capital contributions by the partners of Cook
Inlet PCS or other third party financing. To date, the Company has funded the
operations of Cook Inlet PCS through the issuance of promissory notes. At June
30, 1998, the wholly owned subsidiary of VoiceStream had advanced funds totaling
$42.5 million to Cook Inlet PCS under such promissory notes. During the second
quarter of 1998, Cook Inlet PCS participated in the C Block restructuring
options provided by the FCC. The options chosen by Cook Inlet PCS had the
effect of reducing its debt by $29.1 million.
YEAR 2000 ISSUES
The Company, like most owners of computer software, will be required to
modify significant portions of its software so that it will function properly in
the year 2000. Any of the Company's, or its vendors, computer programs that
have date-sensitive software 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 disruptions of operations, including, among other
things, a temporary inability to process transactions, send invoices, or
engage in similar normal business activities. The Company is in the final
planning phase of its year 2000 compliance project, however does not, as of
yet, have a determinable estimate of the costs to be incurred. The Company
expects to incur internal staff costs as well as consulting and other expenses
related to infrastructure and facilities enhancements necessary to prepare the
systems for the year 2000. Costs incurred to date have been insignificant. The
Company and its vendors expect their year 2000 compliance project to be
completed on a timely basis,however in the event that the Company or its major
vendors fail to become compliant by the start of the year 2000, the Company is
in the process of developing a contingency plan that will limit its risk for
material loss.
19
<PAGE> 20
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
Reference is made to "Item 1. Legal Proceedings" in the Company's Form
10-Q filed with the Securities and Exchange Commission for the quarter ended
March 30, 1998, concerning the Department of Justice investigation.
There are no material, pending legal proceedings to which the Company or any of
its subsidiaries or affiliates is a party or of which any of their property is
subject which, if adversely decided, would have a material adverse effect on the
Company.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The annual meeting of shareholders of Western Wireless Corporation
was held on May 21, 1998.
(b) The following directors were elected to serve a one year term:
John W. Stanton, John L. Bunce, Mitchell L. Cohen, Daniel J.
Evans, Jonathan M. Nelson, and Terence M. O'Toole.
(c) The following matters were voted upon at the meeting:
1. For the election of directors:
<TABLE>
<CAPTION>
For Withheld
--- --------
<S> <C> <C>
John W. Stanton 541,989,855 989,312
John L. Bunce 541,989,855 989,312
Mitchell L. Cohen 541,989,555 989,612
Daniel J. Evans 581,987,515 991,652
Jonathan M. Nelson 541,990,055 989,112
Terence M. O'Toole 541,989,855 989,312
</TABLE>
2. Ratification of selection of Arthur Andersen LLP as the
Company's independent auditors for the year ending
December 31, 1998:
For: 541,914,144
Against: 1,059,895
Withheld: 5,128
ITEM 5. OTHER INFORMATION
Pursuant to the revised Rule 14a-4, if a proponent of a non-Rule
14(a)-8 shareholder proposal fails to notify the Company at least 45 days prior
to the month and day of mailing the prior year's proxy statement (or by an
earlier or later date established by an overriding advance notice provision in
the Company's articles of incorporation or bylaws), then the management proxies
will be allowed to use their discretionary voting authority when the proposal is
raised at the annual meeting, without any discussion of the matter in the proxy
statement.
20
<PAGE> 21
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
<TABLE>
<CAPTION>
(a) Exhibit Description
<S> <C>
10.70* Amendment Number 4 to PCS 1900 Project and Supply
Agreement by and between Western PCS Corporation
and Northern Telecom Inc. dated March 26, 1998.
10.71* Supply Contract by and between Western PCS
Corporation and Nokia Telecommunications Inc.
dated March 9, 1998.
10.72* Purchase and Sale Agreement by and between Nokia
Mobile Phones, Inc. and Western PCS Corporation
dated March 9, 1998.
10.73 Loan Agreement among Western PCS Holding
Corporation, various financial institutions, and
Toronto-Dominion (Texas), Inc. as Administrative
Agent, dated June 26, 1998.
10.74 Asset Purchase Agreement by and between Western
Wireless Corporation and Corporate Telecom
Services, Inc. dated November 28, 1997.
10.75 Asset Purchase Agreement by and between WWC
Holding Co., Inc., Western Wireless Corporation,
and Celludyne II, Inc. dated June 10, 1998.
27.1 Financial Data Schedule
</TABLE>
- ----------
* Portions of these Exhibits have been omitted and filed separately with
the Secretary of the Commission pursuant to the Registrant's Application
Requesting Confidential Treatment under Rule 246-2 of the Securities
Exchange Act of 1934.
(b) Reports on Form 8-K
A Form 8-K was filed on April 6, 1998, announcing that Western Wireless
Corporation would register shares of its stock on behalf of its shareholders.
A Form 8-K was filed on April 23, 1998, reporting Western Wireless
Corporation's financial and operating results for the first quarter ended
March 31, 1998.
A Form 8-K was filed on July 23, 1998, reporting Western Wireless
Corporation's financial and operating results for the second quarter ended June
30, 1998.
21
<PAGE> 22
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Western Wireless Corporation
By s:\ Donald Guthrie By s:\ Patricia L. Miller
-------------------------- --------------------------
Donald Guthrie Patricia L. Miller
Chief Financial Officer Controller (Principal
Accounting Officer)
Dated: August 4, 1998
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description
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<S> <C>
10.70* Amendment Number 4 to PCS 1900 Project and Supply
Agreement by and between Western PCS Corporation and
Northern Telecom Inc. dated March 26, 1998.
10.71* Supply Contract by and between Western PCS Corporation
and Nokia Telecommunications Inc. dated March 9, 1998.
10.72* Purchase and Sale Agreement by and between Nokia
Mobile Phones, Inc. and Western PCS Corporation dated March
9, 1998.
10.73 Loan Agreement among Western PCS Holding Corporation,
various financial institutions, and Toronto-Dominion
(Texas), Inc. as Administrative Agent, dated June 26, 1998.
10.74 Asset Purchase Agreement by and between Western
Wireless Corporation and Corporate Telecom Services, Inc.
dated November 28, 1997.
10.75 Asset Purchase Agreement by and between WWC Holding
Co., Inc., Western Wireless Corporation, and Celludyne II,
Inc. dated June 10, 1998.
27.1 Financial Data Schedule
</TABLE>
- ----------
* Portions of these Exhibits have been omitted and filed separately with
the Secretary of the Commission pursuant to the Registrant's Application
Requesting Confidential Treatment under Rule 246-2 of the Securities
Exchange Act of 1934.
<PAGE> 1
Exhibit 10.73
LOAN AGREEMENT
AMONG WESTERN PCS HOLDING CORPORATION;
THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR AS LENDERS ON
THE SIGNATURE PAGES HEREOF;
TD SECURITIES (USA) INC.,
NATIONSBANC MONTGOMERY SECURITIES LLC,
BARCLAYS CAPITAL, J.P. MORGAN SECURITIES INC.
AND CHASE SECURITIES INC.,
AS ARRANGING AGENTS;
J.P. MORGAN SECURITIES INC.
AS DOCUMENTATION AGENT;
NATIONSBANC MONTGOMERY SECURITIES LLC
AND CHASE SECURITIES INC.,
AS CO-SYNDICATION AGENTS; AND
TORONTO DOMINION (TEXAS), INC., AS
ADMINISTRATIVE AGENT.
DATED AS OF
JUNE 26, 1998
<PAGE> 2
LOAN AGREEMENT
AMONG WESTERN PCS HOLDING CORPORATION; THE FINANCIAL
INSTITUTIONS WHOSE NAMES APPEAR AS LENDERS ON THE SIGNATURE
PAGES HEREOF; TD SECURITIES (USA) INC., NATIONSBANC
MONTGOMERY SECURITIES LLC, BARCLAYS CAPITAL, J.P. MORGAN
SECURITIES INC., AND CHASE SECURITIES INC., AS ARRANGING
AGENTS; AND TORONTO DOMINION (TEXAS), INC., AS
ADMINISTRATIVE AGENT
The parties to this Agreement agree as follows, as of the 26th day of
June, 1998:
ARTICLE 1
Definitions
For the purposes of this Agreement:
"Acquisition" shall mean (whether by purchase, exchange, issuance of
stock or other equity or debt securities, merger, reorganization or any other
method) (i) any acquisition by the Borrower or any of its Subsidiaries of any
other Person, which Person shall then become consolidated with the Borrower or
any such Subsidiary in accordance with GAAP, or (ii) any acquisition by the
Borrower or any of its Subsidiaries of all or any substantial amount of the
assets of any other Person. For purposes of the preceding sentence, an amount of
assets shall be deemed to be "substantial" if such assets have a fair market
value in excess of $1,000,000; provided, however, that the purchase of equipment
and other goods and services in the ordinary course of business shall not be
deemed to be "Acquisitions."
"Additional Contributed Capital" shall mean the sum of amounts
Invested in the Borrower or its Restricted Subsidiaries by VoiceStream after the
Agreement Date as a result of (i) Investments by the Parent into VoiceStream,
(ii) Investments by Hutchison (in addition to the Initial Hutchison Investment)
into VoiceStream, (iii) the incurrence by VoiceStream of Indebtedness for Money
Borrowed (excluding deferred interest on such Indebtedness for Money Borrowed),
and (iv) the issuance for cash of any additional equity securities by
VoiceStream.
<PAGE> 3
"Additional Facility Indebtedness" shall mean additional Indebtedness
for Money Borrowed (as to which no commitment has been issued by any Lender as
of the Agreement Date) in a principal amount not to exceed $200,000,000 incurred
by the Borrower in accordance with Section 2.1(d) of this Agreement.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., as
Administrative Agent for the Lenders, together with any successor Administrative
Agent hereunder.
"Administrative Agent's Office" shall mean the office of Toronto
Dominion (Texas), Inc., as Administrative Agent hereunder, located at 909 Fannin
Street, Suite 1700, Houston, Texas 77010, or such other office as may be
designated pursuant to the provisions of Section 11.1 of this Agreement.
"Advance" shall mean the aggregate amount advanced by the Lenders to
the Borrower pursuant to Article 2 hereof on the occasion of any borrowing.
"Affiliate" shall mean, with respect to a Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such first Person. For purposes of this definition, "control" when used with
respect to any Person includes, without limitation, the direct or indirect
beneficial ownership of more than ten percent (10%) of the voting securities or
voting equity of such Person, or the power to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise.
Unless otherwise specified, "Affiliate" shall mean an Affiliate of the Borrower,
and shall include the Unrestricted Subsidiaries.
"Agreement" shall mean this Loan Agreement.
"Agreement Date" shall mean the date as of which this Agreement is
dated.
"Allowable Wireless System" shall mean any PCS System located within
the United States of America, including its dependencies and possessions.
"Annualized Operating Cash Flow" shall mean, as of any calculation
date, Operating Cash Flow for the most recently-completed fiscal two-quarter
period multiplied by two (2).
"Annualized Revenues" shall mean, as of any calculation date,
(i) total revenues of the Borrower and its Restricted
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<PAGE> 4
Subsidiaries on a consolidated basis for the most recently completed fiscal
two-quarter period, multiplied by (ii) two (2).
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental bodies
or regulatory agencies applicable to such Person, including, without limiting
the foregoing, the Licenses, the Communications Act and all Environmental Laws,
and all orders, decisions, judgments and decrees of all courts and arbitrators
in proceedings or actions to which the Person in question is a party or by which
it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to
Advances hereunder as determined in accordance with Section 2.3(f) hereof.
"Arranging Agents" shall mean TD Securities (USA) Inc., Barclays
Capital, Chase Securities Inc., J.P. Morgan Securities Inc., and NationsBanc
Montgomery Securities LLC, as arranging agents for the Lenders hereunder.
"Approved Fund" means, with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Authorized Signatory" shall mean such senior officers of the Borrower
as may be duly authorized and designated in writing by the Borrower to execute
documents, agreements and instruments on behalf of the Borrower.
"Available Equity" shall mean cash proceeds from public or private
offerings of the capital stock of the Borrower or its Restricted Subsidiaries
issued after the Agreement Date, or cash Invested as equity into the Borrower or
its Restricted Subsidiaries by VoiceStream or the Parent after the Agreement
Date, in either case in excess of the sum of (i) Contributed Capital as of the
Agreement Date, plus (ii) the Minimum Additional Contributed Capital.
"Base Rate" shall mean, at any time, the higher of (a) the rate of
interest adopted by the Administrative Agent as the reference rate for the
determination of interest rates for loans of varying maturities in Dollars to
United States residents of varying degrees of creditworthiness and being quoted
at such time by The Toronto-Dominion Bank, New York Branch as its "base rate" or
"prime rate," or (b) the
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<PAGE> 5
Federal Funds Rate plus five-eighths of one percent (5/8%). The Base Rate is not
necessarily the lowest rate of interest charged to borrowers of the
Administrative Agent or its Affiliates.
"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as a Base Rate Advance or is reborrowed as a Base Rate Advance, and
which bears interest at the Base Rate Basis, in accordance with the provisions
of Section 2.2 hereof, and which shall be in a principal amount of at least
$5,000,000 and in an integral multiple of $1,000,000.
"Base Rate Basis" shall mean a simple interest rate equal to the sum
of (i) the Base Rate and (ii) the Applicable Margin. The Base Rate Basis shall
be adjusted automatically as of the opening of business on the effective date of
each change in the Base Rate to account for such change and shall also be
changed to reflect adjustments in the Applicable Margin.
"Basket" shall mean $25,000,000, and shall be the limitation at all
times on the aggregate dollar amount of Specified Transactions outstanding or in
effect at any time, entered into by the Borrower or any of its Restricted
Subsidiaries.
"Borrower" shall mean Western PCS Holding Corporation,
a Delaware corporation.
"Borrower's Pledge Agreement" shall mean that certain Borrower's
Pledge Agreement of even date between the Borrower and the Administrative Agent,
substantially in the form of Exhibit A attached hereto, pursuant to which the
Borrower has pledged to the Administrative Agent as Collateral for the
Obligations all stock owned by it.
"BTA" shall mean the unit of division (of which there are 493) for the
United States of America, devised by Rand McNally based upon geography,
population and other factors, which units form the basis for the auction by the
FCC of a portion of the Licenses for PCS Systems for Basic Trading Areas, as
defined by the FCC.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement in
London, Houston, and New York, as relevant to the determination to be made or
the action to be taken.
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<PAGE> 6
"Capital Expenditures" shall mean, in respect of any Person,
expenditures for the purchase of tangible assets for long-term use which are
capitalized in accordance with GAAP.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which is required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"Cash Interest Expense" shall mean, for any period, for the Borrower
and its Restricted Subsidiaries, on a consolidated basis, cash interest paid or
accrued (but not deferred) in respect of Total Debt, together with fees
associated therewith (other than fees payable on or prior to the Agreement
Date), and including amounts distributed by the Borrower as Restricted Payments
pursuant to Section 7.7(a) hereof to the extent such amounts are used for cash
interest on Subordinated Debt, all as determined in accordance with GAAP and
shall also include the interest component of payments for such period in respect
of Capitalized Lease Obligations.
"Certificate of Financial Condition" shall mean a certificate,
substantially in the form of Exhibit B attached hereto, signed by the chief
financial officer of the Borrower, together with any schedules, exhibits or
annexes appended thereto.
"Change of Control" shall mean (i) the Borrower shall cease to be the
direct, wholly-owned subsidiary of VoiceStream,(ii) any "person" or "group" (as
such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable), other than the shareholders of VoiceStream, or
shareholders holding four percent (4%) or more of the common stock of the
Parent, in either case as of the Agreement Date (or any Person or group of
Persons that, as of the Agreement Date, are Affiliates of such shareholders), is
or becomes the "beneficial owner" (as that term is used in Rules 13d-3 and 13d-5
under the Exchange Act, whether or not applicable, except that a Person shall be
deemed to have "beneficial ownership" of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 20% of the aggregate
number of votes of all classes of capital stock of VoiceStream which ordinarily
have voting power for the election of directors of VoiceStream, or (iii) during
any period of twenty-four (24) consecutive months, individuals who at the
beginning of such period constituted the board of directors of VoiceStream,
together with any new
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<PAGE> 7
directors whose election by such board or whose nomination for election by the
shareholders of VoiceStream was approved by a vote of a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority of the board of
directors of VoiceStream then in office.
"Co-Agents" shall mean The Bank of New York, The Bank of Nova Scotia,
PNC Bank National Association, Banque Paribas, and Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New York Branch; and
"Co-Agent" shall mean any one of the foregoing Co-Agents.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean any property of any kind provided as
collateral for the Obligations under any of the Security Documents.
"Commitment Ratios" shall mean the percentages in which the Lenders
are severally bound from time to time (giving effect to assignments made as
permitted under Section 11.5(b) hereof) to make Advances to the Borrower under
the Commitments, which percentages are set forth (together with dollar amounts)
for each Lender for its Commitments as of the Agreement Date on Schedule 1
attached hereto.
"Commitments" shall mean the Revolving Loan Commitment, the Tranche A
Term Loan Commitment, and the Tranche B Term Loan Commitment.
"Communications Act" shall mean the Communications Act of 1934, and
any similar or successor federal statute, and the rules and regulations of the
FCC thereunder, all as amended and as the same may be in effect from time to
time.
"Contributed Capital" shall mean the principal amount of Loans
outstanding hereunder, plus the sum of amounts Invested in the Borrower or its
Restricted Subsidiaries by VoiceStream as a result of (i) Investments by the
Parent into VoiceStream on or prior to the Agreement Date, (ii) the Initial
Hutchison Investment, (iii) the incurrence by VoiceStream after the Agreement
Date of Total Debt (excluding deferred interest on such Indebtedness for Money
Borrowed), and (iv) the issuance of equity securities by VoiceStream.
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<PAGE> 8
"Core Properties" shall mean any PCS System or Investment therein
directly owned by the Borrower or any of its Restricted Subsidiaries, which is
proposed to be sold, assigned or otherwise transferred, in a transaction or
series of transactions in which such PCS System or Investment therein would
generate Net Proceeds in excess of $10,000,000. As of the Agreement Date, the
"Core Properties" are the PCS Systems owned and operated (or, in the case of
Seattle, Washington and Phoenix/Tucson, Arizona, under construction) by the
Borrower and its Restricted Subsidiaries pursuant to MTA Licenses for Salt Lake
City; Honolulu; El Paso; Albuquerque; Denver; Portland; Oklahoma City; and the
retained portion of Des Moines; and pursuant to BTA Licenses for Seattle-Tacoma
and Olympia-Centralia, Washington; and Phoenix and Tucson, Arizona.
"Debt Service" shall mean, for any period, the amount of Cash Interest
Expense, together with scheduled principal repayments (excluding any repayments
made or required to be made in accordance with Section 2.8 hereof) in respect of
Indebtedness for Money Borrowed, of the Borrower and its Restricted Subsidiaries
on a consolidated basis, together with any Restricted Payments made as permitted
under Section 7.7 hereof and used to pay interest on Subordinated Debt. For
purposes of this definition, 'principal' shall include the principal component
of payments for such period in respect of Capitalized Lease Obligations.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to
the sum of the otherwise applicable Interest Rate Basis plus two percent (2%).
With respect to amounts (other than principal) bearing interest at the Default
Rate, for purposes of the foregoing sentence, the words "otherwise applicable
Interest Rate Basis," shall be deemed to mean the Base Rate Basis.
"Dollars" or "$" shall mean the basic unit of the lawful currency of
the United States of America.
"Environmental Laws" shall mean, with respect to any Person, all
applicable federal, state and local laws, statutes, rules, regulations and
ordinances, codes, common law, consent agreements to which such Person is a
party or by which it is bound, orders, decrees, judgments and
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<PAGE> 9
injunctions issued, promulgated, approved or entered thereunder affecting such
Person or its property and relating to public health, safety or the pollution or
protection of the environment, including, without limitation, those relating to
releases, discharges, emissions, spills, leaching, or disposals to, on, or in
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, without limitation, any such provisions under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.), or the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. Section 6901 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as in effect from time to time.
"ERISA Affiliate" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations
(within the meaning of Code Sections 414(b), 414(c), 414(m), or 414(o)) of which
the Borrower is a member.
"Eurodollar Advance" shall mean an Advance which the Borrower requests
to be made as a Eurodollar Advance or which is reborrowed as a Eurodollar
Advance, and which bears interest at the Eurodollar Basis, in accordance with
the provisions of Section 2.2 hereof, and which shall be in a principal amount
of at least $5,000,000 and in an integral multiple of $1,000,000.
"Eurodollar Basis" shall mean a simple per annum interest rate
(rounded upward, if necessary, to the nearest one-hundredth (1/100th) of one
percent) equal to the sum of (a) the quotient of (i) the Eurodollar Rate divided
by (ii) one minus the Eurodollar Reserve Percentage, stated as a decimal, plus
(b) the Applicable Margin. The Eurodollar Basis shall apply to Interest Periods
of one (1), two (2), three (3), six (6), and, subject to availability, twelve
(12) months, and, once determined, shall remain unchanged during the applicable
Interest Period, except for changes to reflect adjustments in the Eurodollar
Reserve Percentage and the Applicable Margin pursuant to Section 2.3(f) hereof.
The Borrower may elect an Interest Period of twelve (12)
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months for a Eurodollar Advance unless the Administrative Agent has been
notified by at least one Lender that (i) such Lender does not have available to
it funds for its portion of the proposed Advance which are not required for
other purposes, or (ii) such funds are not available to such Lender at a rate at
or below the Eurodollar Rate for such proposed Advance and Interest Period.
"Eurodollar Rate" shall mean, for any Interest Period, the average of
the interest rates per annum (rounded upward to the nearest one-sixteenth of one
percent (1/16%)) which appear on Telerate Page 3750 as of 11:00 a.m. (London
time), or, if unavailable, any generally accepted successor rate selected by the
Administrative Agent, two (2) Business Days before the first day of such
Interest Period, in an amount approximately equal to the principal amount of,
and for a length of time approximately equal to the Interest Period for, the
Eurodollar Advance sought by the Borrower.
"Eurodollar Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time, as
the maximum reserve requirement applicable with respect to Eurocurrency
liabilities (as that term is defined in Regulation D), whether or not any Lender
has any such Eurocurrency liabilities subject to such reserve requirement at
that time. The Eurodollar Basis for any Eurodollar Advance shall be adjusted as
of the effective date of any change in the Eurodollar Reserve Percentage.
"Event of Default" shall mean any of the events specified in Section
8.1, provided that any requirement for notice or lapse of time or both has been
satisfied.
"Excess Cash Flow" shall mean, with respect to the Borrower and its
Restricted Subsidiaries on a consolidated basis, as of the end of any fiscal
year of the Borrower and based on the audited financial statements required to
be provided under Section 6.2 hereof, the remainder of (a) Operating Cash Flow
for such fiscal year minus (b) the sum of the following items for such fiscal
year multiplied by 1.10 (provided that the use of such multiplication factor
shall not increase the sum of the items listed below for any fiscal year by more
than $10,000,000): (i) Capital Expenditures; (ii) cash income taxes paid; (iii)
Cash Interest Expense; (iv) scheduled principal repayments on any Indebtedness
for Money Borrowed (including the principal component of any Capitalized Lease
Obligation, but not including any repayments required under Section 2.8(a)); and
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(v) permanent, voluntary prepayments of the Loans (accompanied by permanent
reduction in a like amount of the Revolving Loan Commitment, in the case of such
prepayment of the Revolving Loans) hereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as it
may be amended, and any successor act thereto.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the 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 which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent or its Affiliate from
three (3) federal funds brokers of recognized standing selected by the
Administrative Agent or its Affiliate.
"Fee Letters" shall mean, collectively, those certain agreements dated
as of the Agreement Date setting forth the applicable fees to be paid by the
Borrower to the other parties to this Agreement in connection with the Term
Loans and the Revolving Loan Commitment created hereunder.
"Final Maturity Date" shall mean the earlier of (a) June 30, 2007 or
(b) such earlier date on which the payment of all outstanding Obligations shall
be due (whether by acceleration or otherwise).
"Financial Covenants" shall mean from time to time the financial
covenants applicable to the Borrower from time to time as set forth in Sections
7.8 through 7.15 hereof.
"Fixed Charge Coverage Ratio" shall mean on any calculation date, for
the Borrower and its Restricted Subsidiaries on a consolidated basis, the ratio
of (a) the sum (without double-counting) of (i) Annualized Operating Cash Flow
as of the end of the most recent fiscal quarter, plus (ii) the unused portion of
the Revolving Loan Commitment which is available for borrowing as of the
calculation date without causing a Default hereunder, to (b) Fixed Charges.
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"Fixed Charges" shall mean on any calculation date, for the Borrower
and its Restricted Subsidiaries on a consolidated basis for the most recently
completed fiscal four-quarter period, the sum of (a) Debt Service, plus (b)
Capital Expenditures, plus (c) cash income taxes paid, plus (d) the amount of
any principal repaid under Section 2.8(a) hereof.
"GAAP" shall mean generally accepted accounting principles in the
United States, consistently applied.
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean
and include (a) a guaranty, direct or indirect, in any manner, of all or any
part of such obligation, and (b) any agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations with respect to outstanding letters of credit.
"Hutchison" shall mean Hutchison Telecommunications PCS (USA) Limited,
a British Virgin Islands corporation.
"Indebtedness" shall mean, with respect to any Person, and without
duplication, (a) all items, except items of partners' equity or capital stock or
surplus or general contingency or deferred tax reserves, which in accordance
with GAAP would be included in determining total liabilities as shown on the
liability side of a balance sheet of such Person, including, without limitation,
secured non-recourse obligations of such Person, (b) all direct or indirect
obligations of any other Person secured by any Lien to which any property or
asset owned by such Person is subject, but only to the extent of the lower of
(i) the face amount of such obligations or (ii) the higher of the fair market
value or the book value of the property or asset subject to such Lien if the
obligation secured thereby shall not have been assumed, (c) all Capitalized
Lease Obligations of such Person and all obligations of such Person with respect
to leases constituting part of a sale and lease-back arrangement, and (d) all
reimbursement obligations with respect to outstanding letters of credit.
"Indebtedness for Money Borrowed" shall mean, with respect to any
Person, Indebtedness for money borrowed and Indebtedness represented by notes
payable and drafts accepted representing extensions of credit, all obligations
evidenced by bonds, debentures, notes or other similar
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instruments, all Indebtedness upon which interest charges are customarily paid,
all Capitalized Lease Obligations, all reimbursement obligations with respect to
outstanding letters of credit (whether drawn or undrawn), all Indebtedness
issued or assumed as full or partial payment for property or services (other
than trade payables arising in the ordinary course of business, but only if and
so long as such accounts are payable on customary trade terms), whether or not
any such notes, drafts, obligations or Indebtedness represent Indebtedness for
money borrowed, and, without duplication, Guaranties of any of the foregoing.
For purposes of this definition, interest which is accrued but not paid on the
scheduled due date for such interest shall be deemed Indebtedness for Money
Borrowed.
"Indemnitee" shall have the meaning ascribed to it in
Section 5.11 hereof.
"Initial Hutchison Investment" shall mean the purchase by Hutchison in
February, 1998 of a 19.9% interest in VoiceStream for a cash purchase price of
$248 million.
"Interest Hedge Agreements" shall mean any interest rate swap, cap,
collar, floor, caption or swaption agreements, or any similar arrangements
designed to hedge the risk of variable interest rate volatility or to reduce
interest costs, arising at any time between the Borrower, on the one hand, and
any one or more of the Lenders, or any other Person (other than an Affiliate of
the Borrower), on the other hand, as such agreement or arrangement may be
modified, supplemented and in effect from time to time.
"Interest Period" shall mean (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on the
last Business Day of the calendar quarter in which such Advance is made,
provided, however, that if a Base Rate Advance is made on the last day of any
calendar quarter, it shall have an Interest Period ending on, and its Payment
Date shall be, the last day of the following calendar quarter, and (b) in
connection with any Eurodollar Advance, the term of such Advance selected by the
Borrower or otherwise determined in accordance with this Agreement.
Notwithstanding the foregoing, however, (i) any applicable Interest Period which
would otherwise end on a day which is not a Business Day shall be extended to
the next succeeding Business Day unless, with respect to Eurodollar Advances
only, such Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Business Day, (ii) any
applicable Interest Period, with respect to Eurodollar Advances only,
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which begins on a day for which there is no numerically corresponding day in the
calendar month during which such Interest Period is to end shall (subject to
clause (i) above) end on the last day of such calendar month, and (iii) no
Interest Period shall extend beyond the Revolving Loan Maturity Date with
respect to Interest Periods applicable to Revolving Loans or to Tranche A Term
Loans, the Final Maturity Date with respect to Interest Periods applicable to
Tranche B Term Loans, or such earlier date as would interfere with the
Borrower's repayment obligations hereunder. Interest shall be due and payable
with respect to any Advance as provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis or the Eurodollar
Basis, as appropriate.
"Investment" shall mean, with respect to any Person, any loan, advance
or extension of credit (other than to customers in the ordinary course of
business) by such Person to, or any Guaranty or other contingent liability with
respect to the capital stock, Indebtedness or other obligations of, or any
contributions to the capital of, any other Person, or any ownership, purchase or
other acquisition by such Person of any interest in any capital stock, limited
partnership interest, general partnership interest, or other securities of any
such other Person, other than an Acquisition; and "Invest," "Investing" or
"Invested" shall mean the making of an Investment. "Investment" shall also
include the total cost of any future commitment or other obligation binding on
any Person to make an Investment or any subsequent Investment.
"Lenders" shall mean the financial institutions whose names appear as
"Lenders" on the signature pages hereof and any other Person which becomes a
"Lender" hereunder after the Agreement Date; and "Lender" shall mean any one of
the foregoing Lenders.
"Leverage Ratio (Senior Debt)" shall mean, as of the end of any fiscal
quarter, the ratio of Senior Debt to Annualized Operating Cash Flow.
"Leverage Ratio (Total Debt)" shall mean, as of the end of any fiscal
quarter, the ratio of Total Debt to Annualized Operating Cash Flow.
"Licenses" shall mean any mobile telephone, cellular telephone,
microwave, paging, personal communications service, or other license,
authorization, certificate of compliance, franchise, approval or permit for the
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construction or the operation of any PCS System granted or issued by the FCC and
held by the Borrower or any of its Restricted Subsidiaries, or by any Person in
which the Borrower or any of its Restricted Subsidiaries has an Investment, all
of which are listed as of the Agreement Date on Schedule 2 hereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other similar encumbrance of any kind in respect of
such property, whether created by statute, contract, the common law or
otherwise, and whether or not choate, vested or perfected.
"Loan Documents" shall mean this Agreement, the Notes, the Borrower's
Pledge Agreement, the Security Agreement, the Subsidiary Security Agreement, the
Subsidiary Guaranty, the Subsidiary Pledge Agreement, any Subordination
Agreement, the VoiceStream Guaranty, the VoiceStream Pledge Agreement, all legal
opinions issued by counsel to the Borrower or any of its Restricted
Subsidiaries, any reliance letters issued with respect to legal opinions, the
Fee Letters, all Requests for Advance, all Interest Hedge Agreements between the
Borrower, on the one hand, and the Administrative Agent and the Lenders, or any
of them, or any of their respective Affiliates, on the other hand, including any
Interest Hedge Agreements entered into prior to the Agreement Date, and all
other material documents and agreements executed or delivered in connection with
or contemplated by this Agreement.
"Loans" shall mean, collectively, the Revolving Loans and the Term
Loans, which are evidenced by the Notes.
"Majority Lenders" shall mean (i) prior to the occurrence of an Event
of Default and the termination of unfunded Commitments, Lenders the sum of whose
Revolving Loan Commitment amount plus Term Loans outstanding plus undrawn
Tranche A Term Loan Commitment equals or exceeds fifty-one percent (51%) of the
sum of such items, or (ii) at any time that there exists an Event of Default
hereunder, and unfunded Commitments have been terminated, Lenders the total of
whose Loans outstanding equals or exceeds fifty-one percent (51%) of the total
principal amount of the Loans then outstanding hereunder.
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"Managing Agents" shall mean The Bank of America NT&SA,
Societe Generale, Credit Lyonnais, General Electric Capital Corporation, and
Goldman Sachs.
"Materially Adverse Effect" shall mean (i) any material adverse effect
upon the business, assets, liabilities, financial condition, results of
operations, properties, or business prospects of the Borrower and its Restricted
Subsidiaries taken as a whole, or (ii) a material adverse effect upon the
binding nature, validity, or enforceability of this Agreement, and the Notes,
and the other Loan Documents or upon the ability of the Borrower and its
Restricted Subsidiaries to perform the payment obligations or other material
obligations under this Agreement or any other Loan Document, or upon the value
of the Collateral, taken as a whole or upon the rights, benefits or interests of
the Lenders in and to the Loans or the rights of the Administrative Agent and
the Lenders in the Collateral taken as a whole; in either case, whether
resulting from any single act, omission, situation, status, event or
undertaking, or taken together with other such acts, omissions, situations,
statuses, events or undertakings.
"Minimum Additional Contributed Capital" shall mean $200,000,000 in
Additional Contributed Capital, Invested in the Borrower and its Restricted
Subsidiaries after the Agreement Date.
"MSA" shall mean any "metropolitan statistical area" as defined and
modified by the FCC for the purpose of licensing public cellular radio
telecommunications service systems.
"MTA" shall mean any of the 51 "major trading areas" into which the
United States of America is organized, as set forth in the Rand McNally 1992
Commercial Atlas & Marketing Guide, 123d Edition, at pages 38-39.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean all approvals and licenses from,
and all filings and registrations with, any governmental or other regulatory
authority, including, without limiting the foregoing, the Licenses and all
grants, approvals, licenses, filings and registrations under the Communications
Act, necessary in order to enable the Borrower or any of its Restricted
Subsidiaries to own, construct, maintain and operate PCS Systems and to make and
hold Investments in other Persons who own, construct, maintain, and operate PCS
Systems.
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"Net Income" shall mean, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Proceeds" shall mean, with respect to any sale, lease, transfer
or other disposition of assets or securities by the Borrower or any of its
Restricted Subsidiaries, the aggregate amount of cash received for such assets
or securities (including, without limitation, any payments received for
non-competition covenants, consulting or management fees, and any portion of the
amount received evidenced by a buyer promissory note or other evidence of
Indebtedness), net of (i) amounts reserved, if any, for taxes payable with
respect to any such sale (after application of any available losses, credits or
other offsets), (ii) reasonable and customary transaction costs properly
attributable to such transaction and payable by the Borrower or any of its
Restricted Subsidiaries (other than to an Affiliate if not on an arms length
basis) in connection with such sale, lease, transfer or other disposition of
assets or securities, and (iii) until actually received by the Borrower or any
of its Restricted Subsidiaries, any portion of the amount received held in
escrow or evidenced by a buyer promissory note, or a non-compete agreement or
covenant, management agreement or consulting agreement, for which compensation
is paid over time. Upon receipt by the Borrower or any of its Restricted
Subsidiaries of amounts referred to in item (iii) of the preceding sentence,
such amounts shall then be deemed to be "Net Proceeds."
"Net Proceeds Trust" shall have the meaning ascribed to such term in
Section 2.8(b)(ii) hereof.
"Nortel Debt" shall mean certain Indebtedness for Money Borrowed of a
Restricted Subsidiary of the Borrower, in the principal amount of $300,000,000
plus accrued interest, fees and expenses, being repaid in full as of the
Agreement Date with the proceeds of the initial Advance of the Loans.
"Notes" shall mean, collectively, the Revolving Notes
and the Term Notes.
"Obligations" shall mean (i) all payment and performance obligations
of every kind, nature and description of the Borrower, its Restricted
Subsidiaries, and any other obligors to the Lenders (or their respective
Affiliates in the case of Interest Hedge Agreements), the Administrative Agent,
or any of them, under this Agreement and the other Loan Documents (including any
interest, fees
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<PAGE> 18
and other charges on the Loans or otherwise under the Loan Documents that would
accrue but for the filing of a bankruptcy action with respect to the Borrower,
any such Restricted Subsidiary, or any such other obligor, whether or not such
claim is allowed in such bankruptcy action), as they may be amended from time to
time, or as a result of making the Loans, whether such obligations are direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, now
existing or hereafter arising, and (ii) the obligation to pay an amount equal to
the amount of any and all damage which the Lenders (or their respective
Affiliates in the case of Interest Hedge Agreements), the Administrative Agent,
or any of them, may suffer by reason of a breach by the Borrower, any of its
Restricted Subsidiaries, or any other obligor, of any obligation, covenant or
undertaking with respect to this Agreement or any other Loan Document.
"Operating Cash Flow" shall mean, for any fiscal quarter, for the
Borrower and its Restricted Subsidiaries on a consolidated basis, Net Income for
such quarter (after eliminating any extraordinary gains and losses, including
gains and losses from the sale of assets, and minority interests, and equity in
earnings (losses) of non-consolidated entities), plus, to the extent deducted or
accrued in determining Net Income, the sum of each of the following for such
quarter: (i) depreciation, amortization, and other non-cash charges, (ii) income
tax expense, and (iii) interest expense net of interest income.
"Parent" shall mean Western Wireless Corporation, a Washington
corporation.
"Payment Date" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PCS System" shall mean a mobile communications system constructed and
operated in a BTA or an MTA (or any successor territorial designations) pursuant
to a License therefor issued by the FCC.
"Performance Certificate" shall mean a certificate of the president or
chief financial officer of the Borrower as to its financial performance, in
substantially the form attached hereto as Exhibit C.
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"Permitted Asset Sale" shall mean the sale by the Borrower or any of
its Restricted Subsidiaries of all or any substantial part of its or their
assets as and to the extent permitted under Section 7.4(a) hereof.
"Permitted Debt" shall mean Indebtedness for Money Borrowed permitted
to be incurred and to remain outstanding by the Borrower and its Restricted
Subsidiaries, pursuant to Section 7.1 hereof.
"Permitted Investments" shall mean Investments described in and
permitted to be made under Section 7.6 hereof.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent (for itself
and for the ratable benefit of the Lenders) given to secure the Obligations;
(b) (i) Liens on real estate for real estate taxes not yet
delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies or claims the non-payment of which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves have been set aside on such Person's books, but only so long as no
foreclosure, distraint, sale or similar proceedings have been commenced with
respect thereto and remain unstayed for a period of thirty (30) days after their
commencement;
(c) Liens of landlords, carriers, warehousemen, mechanics,
laborers and materialmen incurred in the ordinary course of business for sums
not yet due or being diligently contested in good faith, if reserves or
appropriate provisions shall have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance;
(e) Restrictions on the transfer of assets imposed by any of
the Licenses as now in effect or by the Communications Act, any state laws, and
any regulations thereunder;
(f) Easements, rights-of-way, restrictions and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person, or Liens incidental to the
conduct of the
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business of such Person or to the ownership of its properties which were not
incurred in connection with Indebtedness or other extensions of credit and which
do not in the aggregate materially detract from the value of such properties or
materially impair their use in the operation of the business of such Person;
(g) Purchase money security interests, which are perfected
automatically by operation of law, only for the period (not to exceed twenty
(20) days) of automatic perfection under the law of the applicable jurisdiction,
and limited to Liens on assets so purchased;
(h) Liens reflected by Uniform Commercial Code financing
statements filed in respect of true leases; and
(i) Any Liens of record which secure Indebtedness in an
aggregate amount outstanding at any time not to exceed, in the aggregate with
other Specified Transactions, the Basket. Permitted Liens described in this
subsection (i) are listed as of the Agreement Date on Schedule 3 attached
hereto.
"Person" shall mean an individual, corporation, limited liability
company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean, with respect to any Person, an employee benefit
plan within the meaning of Section 3(3) of ERISA or any other employee benefit
plan maintained for employees of such Person.
"Pro Forma Debt Service" shall mean projected Debt Service for the
Borrower and its Restricted Subsidiaries on a consolidated basis with respect to
the next succeeding fiscal four-quarter period following the calculation date,
and after giving effect to any Interest Hedge Agreements and to existing
Eurodollar Advances. For purposes of this definition, (i) it shall be assumed
that the Indebtedness for Money Borrowed with respect to which Debt Service is
being calculated shall remain at the level outstanding on the calculation date
for the entire succeeding four fiscal- quarter except to the extent of principal
repayments required during such period, and (ii) where interest payments on
Indebtedness for Money Borrowed for the fiscal four-quarter period immediately
succeeding the calculation date are not fixed by way of Interest Hedge
Agreements, Eurodollar Advances, or otherwise for the entire period,
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interest shall be calculated on such Indebtedness for Money Borrowed for periods
for which interest payments are not so fixed at the lower of (y) the Base Rate
Basis on the calculation date, or (z) the Eurodollar Basis which would be in
effect on the calculation date for a Eurodollar Advance having a twelve-month
Interest Period.
"Reportable Event" shall have the meaning set forth in
Title IV of ERISA.
"Request for Advance" shall mean a certificate designated as a
"Request for Advance," signed by an Authorized Signatory requesting an Advance
hereunder, which shall be in substantially the form of Exhibit D attached hereto
and shall, among other things, (i) specify the date of the Advance, which shall
be a Business Day, the amount of the Advance, the type of Advance, and, with
respect to a Eurodollar Advance, the Interest Period selected by the Borrower,
(ii) state that there shall not exist, on the date of the requested Advance both
before and after giving effect thereto, a Default, and (iii) as to an Advance
which will increase the principal amount of the Loans then outstanding, specify
the use of the proceeds of the Advance being requested.
"Restricted Payment" shall mean (i) any direct or indirect
distribution, dividend or other cash payment by the Borrower or any of its
Restricted Subsidiaries to any Person (other than to the Borrower or any other
Restricted Subsidiary of the Borrower) on account of any general or limited
partnership interest in, or ownership of any shares of capital stock or other
securities of, the Borrower or any of its Restricted Subsidiaries; (ii) any
payment in respect of Subordinated Debt; or (iii) any payment by the Borrower or
any of its Restricted Subsidiaries to a Person other than the Borrower or any of
its Restricted Subsidiaries under any management or consulting agreement or
other similar agreement or arrangement not entered into in the ordinary course
of business.
"Restricted Purchase" shall mean any payment by the Borrower or any of
its Restricted Subsidiaries on account of the purchase, redemption or other
acquisition or retirement of any general or limited partnership interest in, or
shares of capital stock or other securities of, the Borrower or any of the
Borrower's Restricted Subsidiaries, including, without limitation, any warrants
or other rights or options to acquire shares of capital stock or partnership
interests of the Borrower or any of the Borrower's Restricted Subsidiaries.
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"Restricted Subsidiaries" shall mean the Subsidiaries of the Borrower
whose assets and capital stock are pledged as security for the Obligations which
are designated as of the Agreement Date as Restricted Subsidiaries on Schedule 4
attached hereto, each of which shall be a signatory to the Subsidiary Guaranty
and the Subsidiary Security Agreement. "Restricted Subsidiaries" shall also
include Subsidiaries of the Borrower designated by the Borrower as Restricted
Subsidiaries after the Agreement Date, pursuant to the provisions of Section
5.13(a) hereof.
"Revolving Loan Commitment" shall mean the several obligations of
certain of the Lenders to advance the sum of up to $500,000,000 to the Borrower
on or after the Agreement Date, in accordance with their respective Commitment
Ratios for the Revolving Loans and as such amount may be reduced from time to
time, all pursuant to the terms hereof.
"Revolving Loan Maturity Date" shall mean the earlier of (a) December
31, 2006, or (b) such earlier date on which the payment of all outstanding
Obligations shall be due (whether by acceleration or otherwise).
"Revolving Loans" shall mean, collectively, the amount advanced by
certain of the Lenders to the Borrower under the Revolving Loan Commitment, not
to exceed the amount of the Revolving Loan Commitment, and evidenced by the
Revolving Notes.
"Revolving Notes" shall mean those certain revolving promissory notes
in the aggregate original principal amount of $500,000,000, one issued by the
Borrower to each of the Lenders issuing a Revolving Loan Commitment in
accordance with each such Lender's Commitment Ratio for the Revolving Loan
Commitment, each one substantially in the form of Exhibit E attached hereto, and
any extensions, modifications, renewals or replacements of or amendments to any
of the foregoing.
"RSA" shall mean any "rural service area" as defined and modified by
the FCC for the purpose of licensing public cellular radio telecommunications
service systems.
"Security Agreement" shall mean that certain Security Agreement
between the Borrower and the Administrative Agent, of even date, substantially
in the form of Exhibit F attached hereto.
"Security Documents" shall mean the Borrower's Pledge Agreement, the
Subsidiary Guaranty, the Subsidiary Pledge
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Agreement, the Security Agreement, the Subsidiary Security Agreement, the
VoiceStream Guaranty, the VoiceStream Pledge Agreement, any other agreement or
instrument providing collateral for the Obligations whether now or hereafter in
existence, and any filings, instruments, agreements, and documents related
thereto or to this Agreement, and providing the Administrative Agent, for itself
and for the ratable benefit of the Lenders, with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the
Administrative Agent, for itself and for the ratable benefit of the Lenders,
created hereunder or under any of the Security Documents to secure the
Obligations.
"Senior Debt" shall mean for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the sum (without duplication) of their
Indebtedness for Money Borrowed.
"Specified Transactions" shall mean each of the following, when
entered into by the Borrower or any of its Restricted Subsidiaries: (i)
Capitalized Lease Obligations; (ii) Indebtedness in the form of a sale-leaseback
transaction; and (iii) additional secured and unsecured Indebtedness for Money
Borrowed (other than the Obligations).
"Subordinated Debt" shall mean up to $500,000,000 in net proceeds of
subordinated Indebtedness for Money Borrowed issued by VoiceStream, which shall
be unsecured with respect to VoiceStream, the Borrower and the Restricted
Subsidiaries of the Borrower, and shall be further subject to the following: (i)
the Borrower shall, in a certificate provided on the date of its receipt of the
net proceeds of such subordinated Indebtedness for Money Borrowed, demonstrate
its projected pro forma compliance (giving effect to the incurrence of such
subordinated Indebtedness for Money Borrowed) with the applicable Financial
Covenants; (ii) the final maturity of such subordinated Indebtedness for Money
Borrowed must be at least one year and one day after the Final Maturity Date;
(iii) such subordinated Indebtedness for Money Borrowed shall contain no
covenants or provisions more restrictive on the Borrower and its Restricted
Subsidiaries than those contained herein; and (iv) interest shall accrue and not
be payable for a period of at least five (5) years from the date of incurrence
of such Indebtedness for Money Borrowed.
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"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect its board of
directors, regardless of the existence at the time of a right of the holders of
any class or classes of securities of such corporation to exercise such voting
power by reason of the happening of any contingency, or any partnership of which
more than fifty percent (50%) of the outstanding partnership interests, is at
the time owned directly or indirectly by such Person, or by one or more
Subsidiaries of such Person, or by such Person and one or more Subsidiaries of
such Person, or (b) any other entity which is directly or indirectly controlled
or capable of being controlled by such Person, or by one or more Subsidiaries of
such Person, or by such Person and one or more Subsidiaries of such Person.
"Subsidiaries" as used herein, unless otherwise indicated, shall mean all
Subsidiaries of the Borrower, including Restricted Subsidiaries and Unrestricted
Subsidiaries. The Subsidiaries of the Borrower as of the Agreement Date are set
forth on Schedule 4 attached hereto.
"Subsidiary Guaranty" shall mean that certain Subsidiary Guaranty in
favor of the Administrative Agent, for itself and for the ratable benefit of the
Lenders, given by each Restricted Subsidiary of the Borrower, of even date,
substantially in the form of Exhibit G attached hereto, and any similar guaranty
delivered pursuant to Section 5.13 hereof.
"Subsidiary Pledge Agreement" shall mean that certain Subsidiary
Pledge Agreement between each Restricted Subsidiary of the Borrower having one
or more of its own corporate Restricted Subsidiaries, on the one hand, and the
Administrative Agent, on the other hand, of even date, substantially in the form
of Exhibit H attached hereto, and any similar pledge agreement delivered
pursuant to Section 5.13 hereof.
"Subsidiary Security Agreement" shall mean that certain Subsidiary
Security Agreement between each of the Borrower's Restricted Subsidiaries, on
the one hand, and the Administrative Agent, on the other hand, of even date
herewith, substantially in the form of Exhibit I attached hereto, and any
similar security agreement delivered pursuant to Section 5.13 hereof.
"Term Loans" shall mean, collectively, the amounts advanced by certain
of the Lenders to the Borrower in an aggregate amount of up to $500,000,000,
consisting of
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$250,000,000 in Tranche A Term Loans and $250,000,000 in Tranche B Loans,
evidenced by the Term Notes, as set forth as of the Agreement Date on Schedule 1
attached hereto.
"Term Notes" shall mean the Tranche A Term Notes and the Tranche B
Term Notes.
"Total Debt" shall mean for VoiceStream, the Borrower and the
Borrower's Restricted Subsidiaries, on a consolidated basis, the sum (without
duplication) of their Indebtedness for Money Borrowed.
"Tranche A Term Loan Commitment" shall mean the several obligations of
certain of the Lenders to advance the sum of up to $250,000,000 to the Borrower
not later than December 31, 1998, in accordance with their respective Commitment
Ratios for the Tranche A Term Loans, and as such amount may be reduced from time
to time, all pursuant to the terms hereof.
"Tranche A Term Loans" shall mean, collectively, the amount advanced
by certain of the Lenders to the Borrower under the Tranche A Term Loan
Commitment, not to exceed the amount of the Tranche A Term Loan Commitment, and
evidenced by the Tranche A Term Notes.
"Tranche A Term Notes" shall mean those certain term notes in the
aggregate original principal amount of $250,000,000, one issued by the Borrower
to each of the Lenders issuing a Tranche A Term Loan Commitment in accordance
with each such Lender's Commitment Ratio for the Tranche A Term Loan Commitment,
each one substantially in the form of Exhibit J attached hereto, and any
extensions, modifications, renewals or replacements of or amendments to any of
the foregoing.
"Tranche B Term Loan Commitment" shall mean the several obligations of
certain of the Lenders to advance the sum of up to $250,000,000 to the Borrower
on the Agreement Date in accordance with their respective Commitment Ratios for
the Tranche B Term Loans, all pursuant to the terms hereof.
"Tranche B Term Loans" shall mean, collectively, the amount advanced
by certain of the Lenders to the Borrower under the Tranche B Term Loan
Commitment, not to exceed the amount of the Tranche B Term Loan Commitment and
evidenced by the Tranche B Term Notes.
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"Tranche B Term Notes" shall mean those certain term notes in the
aggregate original principal amount of $250,000,000, one issued by the Borrower
to each of the Lenders issuing a Tranche B Term Loan Commitment in accordance
with each such Lender's Commitment Ratio for the Tranche B Term Loan Commitment,
each one substantially in the form of Exhibit K attached hereto, and any
extensions, modifications, renewals or replacements of or amendments to any of
the foregoing.
"Unrestricted Subsidiaries" shall mean the Subsidiaries of the
Borrower designated as Unrestricted Subsidiaries on Schedule 4 attached hereto,
together with any Subsidiaries of the Borrower created or acquired after the
Agreement Date which are not Restricted Subsidiaries.
"Use of Proceeds Letter" shall mean that certain Use of Proceeds
Letter, substantially in the form of Exhibit L attached hereto, delivered to the
Administrative Agent and the Lenders on the Agreement Date pursuant to Article 3
hereof.
"VoiceStream" shall mean VoiceStream Wireless Corporation, a Delaware
corporation (f/k/a Western PCS Corporation) and the direct, one hundred percent
(100%) parent company of the Borrower.
"VoiceStream Agreements" shall mean (i) that certain Tax Sharing
Agreement, dated as of February 17, 1998, among the Parent, VoiceStream and
Hutchison, (ii) that certain Services Agreement, dated as of February 17, 1998,
between the Parent and VoiceStream, (iii) that certain Cash Management Agreement
dated as of February 17, 1998, between the Parent and VoiceStream, (iv) that
certain Roaming Agreement, dated as of February 17, 1998, between the Parent and
VoiceStream, and (v) that certain Shareholders Agreement; dated as of February
17, 1998, among the Parent, VoiceStream, and Hutchison.
"VoiceStream Guaranty" shall mean that certain Guaranty of the
Obligations by VoiceStream in favor of the Administrative Agent, for itself and
for the ratable benefit of the Lenders, of even date, substantially in the form
of Exhibit N attached hereto.
"VoiceStream Pledge Agreement" shall mean that certain Pledge
Agreement of even date, given by VoiceStream in favor of the Administrative
Agent, for itself and for the ratable benefit of the Lenders, of even date,
substantially in the form of Exhibit M attached hereto.
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* * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Each definition of an agreement or instrument in this Article 1 shall
include such agreement or instrument as amended, modified, renewed or restated
from time to time in accordance herewith.
ARTICLE 2
Loans
Section 2.1 The Loans.
(a) The Lenders who have issued a Revolving Loan Commitment agree,
severally in accordance with their respective Commitment Ratios for the
Revolving Loan Commitment and not jointly, upon the terms and subject to the
conditions of this Agreement, to lend and re-lend to the Borrower, on and after
the Agreement Date (provided that the Term Loans have been fully drawn), amounts
requested by the Borrower which, in the aggregate, do not exceed at any time the
amount of the Revolving Loan Commitment. Advances under the Revolving Loan
Commitment may be repaid and reborrowed as provided in Section 2.2 hereof in
order to reborrow Eurodollar Advances for new Interest Periods, to effect
changes in the Interest Rate Bases applicable to the Advances hereunder, or
otherwise. Revolving Loans will bear interest at the Eurodollar Basis or the
Base Rate Basis as provided in Section 2.3 hereof.
(b) The Lenders who have agreed to make Tranche A Term Loans agree,
severally in accordance with their respective Commitment Ratios for the Tranche
A Term Loan Commitment and not jointly, upon the terms and subject to the
conditions of this Agreement, to lend to the Borrower, on or prior to December
31, 1998, in multiple Advances, an aggregate amount not to exceed $250,000,000.
Tranche A Term Loans will bear interest at the Eurodollar Basis or the Base Rate
Basis as provided in Section 2.3 hereof.
(c) The Lenders who have agreed to make Tranche B Term Loans agree,
severally and in accordance with their respective Commitment Ratios for the
Tranche B Term Loan Commitment and not jointly, upon the terms and subject to
the conditions of this Agreement, to lend to the Borrower on the Agreement Date,
an amount not to exceed $250,000,000. Tranche B Term Loans will bear interest at
the Eurodollar Basis or the Base Rate Basis as provided in Section 2.3 hereof.
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(d) The Borrower may also borrow up to $200,000,000 of Additional
Facility Indebtedness, subject to the following conditions: (i) the Additional
Facility Indebtedness shall be acceptable to the Majority Lenders and on terms
and conditions no more favorable to the Borrower than the terms and conditions
of the Tranche B Term Loans and shall have a final maturity no earlier than the
Final Maturity Date; (ii) each Lender hereunder shall be offered the opportunity
(but shall not be obligated) to issue a commitment for its pro rata share of
such Additional Facility Indebtedness; and (iii) the Additional Facility
Indebtedness shall constitute Obligations hereunder and shall rank pari passu
with the other Obligations.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance under the Revolving Loan
Commitment shall, at the option of the Borrower, be made as a Base Rate Advance,
or, subject to Article 10 hereof, a Eurodollar Advance; provided, however, that
at such time as there shall have occurred and be continuing a Default hereunder,
the Borrower shall not have the right to borrow or to re-borrow any Eurodollar
Advances under the Revolving Loan Commitment, and all subsequent Advances under
the Revolving Loan Commitment shall be made as Base Rate Advances. Subject to
the provisions of Article 10 hereof, any Advance of the Term Loans may be made
as a Base Rate Advance or a Eurodollar Advance; provided, however, that at such
time as there shall have occurred and be continuing a Default hereunder, subject
to the rights of the Lenders under Section 8.2 hereof, subsequent rollover
Advances of either Term Loan shall have a one month Interest Period; and
provided further, that in the event that for any reason Eurodollar Advances are
not available, Advances of the Term Loans shall be made as Base Rate Advances.
Any notice given to the Administrative Agent in connection with a requested
Advance hereunder shall be given to the Administrative Agent prior to 11:30 a.m.
(Houston time) in order for such Business Day to count toward the minimum number
of Business Days required.
(b) Base Rate Advances.
(i) Initial Advances. The Borrower shall give the
Administrative Agent in the case of Base Rate Advances at least one
(1) Business Day's irrevocable prior written notice in the form of a
Request for Advance, or telephonic notice followed immediately by a
Request for Advance; provided, however, that the Borrower's failure to
confirm any telephonic notice
27
<PAGE> 29
with a Request for Advance shall not invalidate any notice so given.
(ii) Repayments and Reborrowings. Upon at least one (1), with
respect to items (A) and (C) of this sentence, or three (3), with
respect to item (B) of this sentence, Business Days' irrevocable prior
written notice to the Administrative Agent, the Borrower may repay or
prepay a Base Rate Advance without regard to its Payment Date and (A)
reborrow all or a portion of the principal amount thereof as one or
more Base Rate Advances, (B) reborrow all or a portion of the
principal thereof as one or more Eurodollar Advances, or (C) not
reborrow all or any portion of such Base Rate Advance at that time. On
the date indicated by the Borrower, such Base Rate Advance shall be so
repaid and, as applicable, reborrowed. Failure of the Borrower to
provide notice hereunder shall not affect its obligation to repay the
applicable Eurodollar Advance on such Payment Date.
(c) Eurodollar Advances.
(i) Initial Advances. The Borrower shall give the
Administrative Agent in the case of Eurodollar Advances at least three
(3) Business Days' irrevocable prior written notice in the form of a
Request for Advance, or telephonic notice followed immediately by a
Request for Advance; provided, however, that the Borrower's failure to
confirm any telephonic notice with a Request for Advance shall not
invalidate any notice so given. The Administrative Agent, whose
determination shall be conclusive absent manifest error, shall
determine the available Eurodollar Bases and shall notify the Borrower
of such Eurodollar Bases. The Borrower shall promptly notify the
Administrative Agent by telephone or telecopy, and shall immediately
confirm any such telephonic notice in writing, of its selection of a
Eurodollar Basis and Interest Period for such Advance; provided,
however, that the Borrower's failure to confirm any such telephonic
notice in writing shall not invalidate any notice so given.
(ii) Repayments and Reborrowings. At least three (3)
Business Days prior to the Payment Date for a Eurodollar Advance, the
Borrower shall give the Administrative Agent written notice specifying
whether all or a portion of such Eurodollar Advance outstanding on the
Payment Date (A) is to be repaid and then reborrowed in whole or in
part as a Eurodollar Advance,
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<PAGE> 30
and the Interest Period selected, (B) is to be repaid and then
reborrowed in whole or in part as a Base Rate Advance or (C) is to be
repaid and not reborrowed at that time. Upon such Payment Date such
Eurodollar Advance will, subject to the provisions hereof, be so
repaid and, as applicable, reborrowed.
(d) Notification of Lenders. Upon receipt of a Request for Advance, or
a notice from the Borrower with respect to a selection of an Interest Period, or
a notice from the Borrower with respect to any outstanding Advance prior to the
Payment Date for such Advance, the Administrative Agent shall promptly notify
each Lender by telephone or telecopy of the contents thereof and the amount of
such Lender's portion of the Advance. Each Lender shall, not later than 1:30
p.m. (Houston time) on the date of borrowing specified in such notice, make
available to the Administrative Agent at the Administrative Agent's Office, or
at such account as the Administrative Agent shall designate, the amount of its
portion of any Advance which represents an additional borrowing hereunder in
immediately available funds.
(e) Disbursement.
(i) Prior to 3:00 p.m. (Houston time) on the date of
an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of any applicable conditions set forth in Article 3
hereof, disburse the amounts made available to it by the Lenders in
like funds by (a) transferring the amounts so made available by wire
transfer pursuant to the Borrower's instructions, or (b) in the
absence of such instructions, crediting the amounts so made available
to the account of the Borrower maintained with the Administrative
Agent.
(ii) Unless the Administrative Agent shall have
received notice from a Lender prior to 2:00 p.m. (Houston time) on the
date of any Advance that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Advance,
the Administrative Agent may assume that such Lender has made or will
make such portion available to the Administrative Agent on the date of
such Advance and the Administrative Agent may in its sole discretion
and in reliance upon such assumption, make available to the Borrower
on such date a corresponding amount. If and to the extent the Lender
does not make such ratable
29
<PAGE> 31
portion available to the Administrative Agent, such Lender agrees to
repay to the Administrative Agent on demand such corresponding amount
together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid
to the Administrative Agent, at the Federal Funds Rate for the first
three (3) days and thereafter at the Federal Funds Rate plus one
percent (1%).
(iii) If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall
constitute such Lender's portion of the applicable Advance for
purposes of this Agreement. If such Lender does not repay such
corresponding amount immediately upon the Administrative Agent's
demand therefor, the Administrative Agent shall notify the Borrower
and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent, together with interest thereon. The failure
of any Lender to fund its portion of any Advance shall not relieve any
other Lender of its obligation hereunder to fund its respective
portion of the Advance on the date of such borrowing, but no Lender
shall be responsible for any such failure of any other Lender.
(iv) In the event that, at any time when the Borrower
is not in Default and has satisfied all applicable conditions set
forth in Article 3 hereof, a Lender for any reason fails or refuses to
fund its portion of an Advance, then, until such time as such Lender
has funded its portion of such Advance, or all other Lenders have
received payment in full (whether by repayment or prepayment) of the
principal and interest due in respect of such Advance, such
non-funding Lender shall not have the right (i) to vote regarding any
issue on which voting is required or advisable under this Agreement or
any other Loan Document and the amount of the Revolving Loan
Commitment and Term Loans, as applicable, or Loans, as applicable,
held by such Lender shall not be counted as outstanding for purposes
of determining "Majority Lenders" hereunder, and (ii) to receive
payments of principal, interest or fees from the Borrower in respect
of its unfunded portion of Advances.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance shall be
computed on the basis of a year of 365/366
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<PAGE> 32
days for the actual number of days elapsed and shall be payable at the Base Rate
Basis for such Advance, in arrears on the applicable Payment Date for the period
through the date immediately preceding such Payment Date. Interest on Base Rate
Advances then outstanding shall also be due and payable on the Revolving Loan
Maturity Date with respect to Revolving Loans and Tranche A Term Loans, and on
the Final Maturity Date with respect to the Tranche B Term Loans.
(b) On Eurodollar Advances. Interest on each Eurodollar Advance shall
be computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the Eurodollar Basis for such Advance, in arrears on the
applicable Payment Date for the period through the day immediately preceding
such Payment Date, and, in addition, if the Interest Period for a Eurodollar
Advance exceeds three (3) months, interest on such Eurodollar Advance shall also
be due and payable in arrears on every three-month anniversary of the beginning
of such Interest Period. Interest on Eurodollar Advances then outstanding shall
also be due and payable on the Revolving Loan Maturity Date with respect to
Revolving Loans and Tranche A Term Loans and on the Final Maturity Date with
respect to the Tranche B Term Loans.
(c) Interest if No Notice of Selection of Interest Rate Basis. With
respect to Revolving Loans, if the Borrower fails to give the Administrative
Agent timely notice of its selection of a Eurodollar Basis, or if for any reason
a determination of a Eurodollar Basis for any Advance is not timely concluded,
the Base Rate Basis shall apply to such Advance. With respect to the Term Loans,
if the Borrower fails to give the Administrative Agent timely notice of its
selection of an Interest Period for any rollover Advance, a one month Interest
Period shall apply.
(d) Interest Upon Default. Immediately upon the occurrence of an Event
of Default hereunder, the outstanding principal balance of the Loans, together
with accrued and unpaid interest and other unpaid sums, shall bear interest at
the Default Rate. Such interest shall be payable on demand and shall accrue
until the earliest of (a) waiver or cure (to the satisfaction of the Lenders
required under Section 11.12 hereof to waive or cure) of the applicable Event of
Default, or (b) agreement by the Majority Lenders to rescind the charging of
interest at the Default Rate, or (c) payment in full of the Obligations.
(e) Eurodollar Advances. At no time may the number of outstanding
Eurodollar Advances exceed ten (10), with
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<PAGE> 33
respect to the Revolving Loan Commitment, or five (5), with respect to either
the Tranche A Term Loan Commitment or the Tranche B Term Loan Commitment.
(f) Applicable Margin. (i) With respect to any Advance of the Tranche
A Term Loans, or any Advance under the Revolving Loan Commitment, the Applicable
Margin shall be as of any calculation date the interest rate margin determined
by the Administrative Agent based upon the table set forth below (which tests
the Borrower's Leverage Ratio (Total Debt) after the Minimum Contributed Capital
has been raised), determined for the most recent fiscal quarter end, effective
as of the second Business Day after the financial statements referred to in
Section 6.1 hereof are required to be furnished by the Borrower to the
Administrative Agent and each Lender for the fiscal quarter most recently ended
(except with respect to clause (b), which adjustment to the Applicable Margin
shall be effective on the date of receipt by the Borrower of the Investment by
VoiceStream of Minimum Additional Contributed Capital), expressed as a per annum
rate of interest as follows:
<TABLE>
<CAPTION>
Base Rate Advance Eurodollar Advance
Leverage Ratio (Total Debt) Applicable Margin Applicable Margin
- --------------------------- ----------------- -----------------
<S> <C> <C>
(a) Agreement Date 1.500% 2.500%
and thereafter
(until the
occurrence of
(b) or (c))
(b) After Minimum 1.250% 2.250%
Additional
Contributed
Capital raised
(until the
occurrence of (c))
(c) After the Borrower's 1.125% 2.125%
Annualized Operating Cash
Flow as of the end of any
fiscal quarter exceeds $0, but
the Leverage Ratio (Total
Debt) exceeds 10.0:1
Greater than 8.00, 1.000% 2.000%
but less than or
equal to 10.00
Greater than 7.00, 0.750% 1.750%
but less than or
equal to 8.00
Greater than 6.00, 0.500% 1.500%
but less than or
equal to 7.00
</TABLE>
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<PAGE> 34
<TABLE>
<CAPTION>
Base Rate Advance Eurodollar Advance
Leverage Ratio (Total Debt) Applicable Margin Applicable Margin
- --------------------------- ----------------- -----------------
<S> <C> <C>
Greater than 5.00, 0.250% 1.250%
but less than or
equal to 6.00
Less than or equal to 0.000% 1.000%
5.00
</TABLE>
In the event that the Borrower fails to timely provide (i) the financial
statements referred to above in accordance with the terms of Section 6.1 hereof
or (ii) the Performance Certificate referred to in Section 6.3 hereof, and
without prejudice to any additional rights under Section 8.2 hereof, no downward
adjustment of the Applicable Margin in effect for the preceding quarter shall
occur until the actual delivery of such statements.
(ii) With respect to the Tranche B Term Loan, the Applicable Margin for
Eurodollar Advances shall be 2.75% and for Base Rate Advances, 1.75%; provided
however, that in the event that the Leverage Ratio (Total Debt) as of the end of
any fiscal quarter is less than or equal to 10.00:1, the Applicable Margin for
Eurodollar Advances of the Tranche B Term Loan shall be 2.50% and the Applicable
Margin for Base Rate Advances of the Tranche B Term Loan shall be 1.50%. Any
adjustment in the Applicable Margin for Advances under the Tranche B Term Loan
shall be effective as of the same date as adjustments under subsection (i) of
this Section 2.3(f).
Section 2.4 Repayment. (a) Commencing September 30, 2001 and at the end of
each calendar quarter thereafter, the Revolving Loan Commitment shall be reduced
by an amount equal to the percentages (for such quarter and year) set forth
below, and the outstanding principal balance of the Tranche A Term Loans shall
be repaid by an amount equal to the percentages (for such quarter and year) set
forth below:
<TABLE>
<CAPTION>
Percentage of Annual Percentage
Tranche A Term of Tranche A Term
Loans Outstanding Loans Outstanding
as of September as of September 30, 2001
30, 2001 and of Revolving
and of Revolving Loan Commitment to
Loan Commitment to be Reduced Each
be Reduced Each Period Ending
Quarters Ending Quarter: December 31:
- --------------- ------------------ ------------------------
<S> <C> <C>
September 30, 2.50% 5.00%
2001 through and
including
December 31, 2001
March 31, 2002 2.50% 10.00%
through and
including
December 31, 2002
</TABLE>
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<PAGE> 35
<TABLE>
<CAPTION>
Percentage of Annual Percentage
Tranche A Term of Tranche A Term
Loans Outstanding Loans Outstanding
as of September as of September 30, 2001
30, 2001 and of Revolving
and of Revolving Loan Commitment to
Loan Commitment to be Reduced Each
be Reduced Each Period Ending
Quarters Ending Quarter: December 31:
- --------------- ------------------ ------------------------
<S> <C> <C>
March 31, 2003 3.75% 15.00%
through and
including
December 31, 2003
March 31, 2004 5.00% 20.00%
through and
including
December 31, 2004
March 31, 2005 6.25% 25.00%
through and
including
December 31, 2005
March 31, 2006 6.25% 25.00%
through and
including
December 31, 2006
</TABLE>
To the extent the outstanding principal amount of the Revolving Loans exceeds
the Revolving Loan Commitment as so reduced, the Revolving Loans shall be
repaid. Any unpaid principal and interest of the Tranche A Term Loans or of the
Revolving Loans and any other outstanding Obligations under the Revolving Loan
Commitment or the Tranche A Term Loan Commitment shall be due and payable in
full on the Revolving Loan Maturity Date.
(b) Commencing September 30, 2001 and at the end of each calendar quarter
thereafter, the outstanding principal balance of the Tranche B Term Loans as of
the opening of business on September 30, 2001 shall be repaid as set forth
below:
<TABLE>
<CAPTION>
Percentage of Annual Percentage
Tranche B Term of Tranche B Term
Loans Outstanding Loans Outstanding
as of September as of September 30,
30, 2001 to be 2001 to be Reduced
Reduced Each Each Period Ending
Quarters Ending Quarter: December 31:
- --------------- ----------------- ------------------
<S> <C> <C>
September 30, .500% 1.0%
2001 through and
including
December 31,
2001
March 31, 2002 .250% 1.0%
through and
including
December 31,
2002
</TABLE>
34
<PAGE> 36
<TABLE>
<CAPTION>
Percentage of Annual Percentage
Tranche B Term of Tranche B Term
Loans Outstanding Loans Outstanding
as of September as of September 30,
30, 2001 to be 2001 to be Reduced
Reduced Each Each Period Ending
Quarters Ending Quarter: December 31:
- --------------- ----------------- ------------------
<S> <C> <C>
March 31, 2003 .250% 1.0%
through and
including
December 31,
2003
March 31, 2004 .250% 1.0%
through and
including
December 31,
2004
March 31, 2005 .250% 1.0%
through and
including
December 31,
2005
March 31, 2006 .250% 1.0%
through and
including
December 31,
2006
March 31, 2007 47.0% 94.0%
through and
including June
30, 2007
</TABLE>
Any unpaid principal and interest of the Tranche B Term Loans and any other
outstanding Obligations shall be due and payable in full on the Final Maturity
Date.
Section 2.5 Fees. (a) Fees Payable Under the Fee Letters. The Borrower
agrees to pay such fees as are mutually agreed upon and as are described in the
Fee Letters.
(b) Commitment Fee. In addition, the Borrower agrees to pay to the
Administrative Agent, for the benefit of each of the Lenders who have issued a
Revolving Loan Commitment or have agreed to make Tranche A Term Loans, in
accordance with their respective Commitment Ratios for such facilities, a
commitment fee on the aggregate unborrowed balance of the Revolving Loan
Commitment, for each day from the Agreement Date until the Revolving Loan
Maturity Date, and on the aggregate unborrowed amount of the Tranche A Term Loan
Commitment, for each day from the Agreement Date until December 31, 1998, at a
rate of one-half of one percent (1/2%) per annum, provided, however, that for
any period of time in which the Applicable Margin for Eurodollar Advances of the
Revolving Loans shall be 1.50% or less, the commitment fee shall be imposed at a
rate of three-eighths of one percent (3/8%). Such commitment fee shall be
computed on the basis of a year of 365/366 days for the
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<PAGE> 37
actual number of days elapsed, shall be payable quarterly in arrears on the last
Business Day of each calendar quarter, commencing September 30, 1998, shall be
fully earned when due, and shall be non-refundable when paid.
Section 2.6 Prepayments.
(a) Prepayment of Advances. The principal amount of any Base Rate Advance
may be prepaid in full or in part at any time, without penalty or premium and
without regard to the Payment Date for such Advance, upon not less than three
(3) Business Days' prior written notice to the Administrative Agent of such
prepayment. Eurodollar Advances may be prepaid prior to the applicable Payment
Date, upon not less than three (3) Business Days' prior written notice to the
Administrative Agent, provided that the Borrower shall reimburse the Lenders and
the Administrative Agent, on demand, for any loss or out-of-pocket expense
incurred by any Lender or the Administrative Agent in connection with such
prepayment, as set forth in Section 2.11 hereof.
(b) Prepayment of Loans. Amounts permanently prepaid on the Revolving Loans
whether by way of refinancing or prepayment of Advances under the Revolving Loan
Commitment accompanied by a corresponding permanent reduction in the Revolving
Loan Commitment shall, unless otherwise specified herein, be applied to interest
and fees then outstanding hereunder on account of Revolving Loans and under the
Revolving Notes, and then to principal. Amounts prepaid on the Term Loans
whether by way of refinancing or prepayment of Advances under the Term Loans
shall, unless otherwise specified herein, be applied to interest then
outstanding hereunder on account of the Term Loans and under the Term Notes, and
then to principal. A notice of prepayment shall be irrevocable. Upon receipt of
any notice of prepayment or reduction, the Administrative Agent shall promptly
notify each Lender of the contents thereof by telephone or telecopy and of such
Lender's portion of the prepayment. Any portion of the Loans which is
permanently prepaid may not be reborrowed. Permanent prepayments of the
Revolving Loans accompanied by a corresponding permanent reduction in the
Revolving Loan Commitment, and prepayments of the Tranche A Term Loans, shall be
applied to the repayment schedule set forth in Section 2.4(a) hereof in inverse
order of maturity. Prepayments of the Tranche B Term Loans shall be applied to
the repayment schedule set forth in Section 2.4(b) hereof in inverse order of
maturity. Partial prepayments shall be in a principal amount of not less than
$5,000,000, and in an integral multiple of $1,000,000. Voluntary permanent
36
<PAGE> 38
prepayments of the Loans shall be applied pro rata to the outstanding Tranche A
Term Loans, the outstanding Tranche B Term Loans and to the Revolving Loan
Commitment.
Section 2.7 Borrower's Optional Cancellation of the Revolving Loan
Commitment. The Borrower shall have the right, on three (3) Business Days'
irrevocable notice to the Administrative Agent, to cancel all or a portion of
the Revolving Loan Commitment, on a pro rata basis among the Lenders holding
Revolving Loan Commitments, provided that (i) any such cancellation shall be
made in a principal amount of not less than $5,000,000, and in an integral
multiple of $1,000,000; (ii) as of the effective date of such notice, the
Revolving Loan Commitment shall be permanently reduced to the amount stated in
the Borrower's notice for all purposes herein; and (iii) payment shall be made
on or prior to the effective date of such notice of any amount necessary to
reduce the amount of the Revolving Loans outstanding under the Revolving Loan
Commitment to not more than the amount of the Revolving Loan Commitment as
reduced, to be applied as provided in Section 2.6(b), together with any amount
required to be paid by the Borrower under Section 2.11 hereof.
Section 2.8 Mandatory Prepayments. In addition to the scheduled repayments
provided for in Section 2.4 hereof, the Borrower shall prepay the Loans as
follows:
(a) Repayment From Excess Cash Flow. On or prior to June 30, 2000, and on
or prior to each June 30th thereafter during the term of this Agreement, the
Borrower shall make an additional prepayment of the outstanding principal amount
of the Loans in an amount equal to fifty percent (50%) of Excess Cash Flow for
the previous fiscal year. Amounts so prepaid shall be applied to the repayment
schedule set forth in Section 2.4(a) and Section 2.4(b) hereof in inverse order
of maturity and shall be applied pro rata to the remaining Revolving Loan
Commitment, the outstanding Tranche A Term Loans, and the outstanding Tranche B
Term Loans. Accrued interest on the principal amount of the Loans being prepaid
pursuant to this Section 2.8(a) to the date of such prepayment will be paid by
the Borrower concurrently with such principal prepayment.
(b) From Permitted Asset Sales. Net Proceeds from any Permitted Asset Sale
of one or more Core Properties shall be applied, on the Business Day of receipt
thereof by the Borrower or the affected Restricted Subsidiary, as follows:
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<PAGE> 39
(i) Except as otherwise permitted in Section 2.8(b)(ii) hereof, to
permanently prepay the outstanding principal amount of the Loans and
permanently reduce the Revolving Loan Commitment in order of maturity and
shall be allocated pro rata among the Revolving Loan Commitment and the
outstanding principal balance of the Term Loans, provided that such amounts
prepaid with Net Proceeds and allocated to the Revolving Loan Commitment
may be reborrowed by the Borrower in an amount not to exceed, in the
aggregate, the amount of the Revolving Loan Commitment; or
(ii) At the Borrower's election, so long as no Default then exists or
would be caused thereby, by the Borrower or any Restricted Subsidiary to
purchase one or more Allowable Wireless Systems, the aggregate purchase
price of which does not exceed such Net Proceeds, or the sum of such Net
Proceeds plus Advances otherwise available for Acquisitions hereunder plus
other funds available to the Borrower, so long as the Borrower shall have
(i) entered into a definitive contract for purchase within twelve (12)
months from the date of such Permitted Asset Sale, and (ii) concluded such
purchase within eighteen (18) months from the date of such Permitted Asset
Sale. In the event the Borrower elects to exercise its right under this
Section 2.8(b)(ii), the Borrower shall so notify the Administrative Agent
not less than five (5) Business Days prior to the proposed date of the
closing of the Permitted Asset Sale and shall, upon its or any Restricted
Subsidiary's receipt of any Net Proceeds with respect to such Permitted
Asset Sale, remit such Net Proceeds to the Administrative Agent to reduce
the outstanding principal balance of the Revolving Loans (but not the Term
Loans nor the amount of the Revolving Loan Commitment). Any amount in
excess of the then outstanding balance of the Revolving Loans shall be held
in trust in an interest-bearing account with the Administrative Agent or an
Affiliate thereof (the "Net Proceeds Trust") for the benefit of the
Borrower, to be applied to the ultimate purchase of the Allowable Wireless
System or Systems, as hereinafter provided. Amounts in any Net Proceeds
Trust shall also be subject to a valid and perfected first priority Lien in
favor of the Administrative Agent (for itself and for the ratable benefit
of the Lenders) to secure the Obligations, pursuant to a deposit pledge
agreement or other security agreement in form and substance reasonably
satisfactory to the Administrative Agent. The Borrower shall consummate
such purchase of the
38
<PAGE> 40
Allowable Wireless System or Systems not later than eighteen (18) months
after the date of the applicable Permitted Asset Sale. To the extent that
the Borrower shall not have entered into a definitive contract for purchase
within twelve (12) months after the date of the Permitted Asset Sale, or
consummated any such purchase as of eighteen (18) months after the date of
such Permitted Asset Sale (for whatever reason, including the occurrence of
a Default hereunder), or the purchase price of such purchase shall be less
than the Net Proceeds of the Permitted Asset Sale, any funds held in the
Net Proceeds Trust relating to such sale shall be applied in the manner set
forth in Section 2.8(b)(i) hereof.
Section 2.9 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein, and shall be evidenced by the Notes. Term Notes
shall be issued by the Borrower and payable to the order of each Lender listed
as making a Tranche A Term Loan or a Tranche B Term Loan on Schedule 1 hereof,
and one Revolving Note shall be issued by the Borrower and payable to the order
of each Lender issuing a Revolving Loan Commitment. The Notes shall be issued by
the Borrower to the Lenders and shall be duly executed and delivered by one or
more Authorized Signatories.
(b) Each Lender may open and maintain on its books in the name of the
Borrower a loan account with respect to such Lender's portion of the Loans and
interest thereon. Each Lender which opens such a loan account shall debit such
loan account for the principal amount of its portion of each Advance made and
accrued interest thereon and shall credit such loan account for each payment on
account of principal of or interest on its Loan. The records of a Lender with
respect to the loan account maintained by it shall be prima facie evidence of
the Loans and accrued interest thereon, absent manifest error, but the failure
of any Lender to make any such notations or any error or mistake in such
notations shall not affect the Borrower's repayment obligations with respect to
the Loans.
39
<PAGE> 41
Section 2.10 Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower on account of
the principal of or interest on the Loans, commitment fees and any other amount
owed to the Lenders, the Administrative Agent or any of them under this
Agreement or the Notes shall be made not later than 2:00 p.m. (Houston time) on
the date specified for payment under this Agreement to the Administrative Agent
at the Administrative Agent's Office, for the account of the Lenders, or the
Administrative Agent, as the case may be, in lawful money of the United States
of America in immediately available funds. Any payment received by the
Administrative Agent after 2:00 p.m. (Houston time) shall be deemed received on
the next Business Day. Receipt by the Administrative Agent of any payment
hereunder at or prior to 2:00 p.m. (Houston time) on any Business Day shall be
deemed to constitute receipt on such Business Day. In the case of a payment for
the account of a Lender, the Administrative Agent will promptly thereafter (and,
if such amount is received before 2:00 p.m. (Houston time), on the same day)
distribute the amount so received in like funds to such Lender. If the
Administrative Agent shall not have received any payment from the Borrower as
and when due, the Administrative Agent will promptly notify the Lenders
accordingly.
(b) The Borrower agrees to pay principal, interest, fees and all other
Obligations due hereunder, under the Fee Letters, under the Notes, or under the
other Loan Documents without set-off or counterclaim or any deduction
whatsoever.
(c) Prior to the acceleration of the Loans under Section 8.2 hereof, if
some but less than all amounts due from the Borrower are received by the
Administrative Agent with respect to the Obligations, the Administrative Agent
shall distribute such amounts in the following order of priority, all on a pro
rata basis to the Lenders: (i) to the payment on a pro rata basis of any fees or
expenses then due and payable to the Administrative Agent, the Lenders, or any
of them; (ii) to the payment of interest then due and payable on the Loans;
(iii) to the payment of all other amounts not otherwise referred to in this
Section 2.10(c) then due and payable to the Administrative Agent or the Lenders,
or any of them, hereunder or under the Notes; and (iv) to the payment of
principal then due and payable on the Notes.
(d) Subject to any contrary provisions in the definition of Interest
Period, if any payment under this
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Agreement or any of the other Loan Documents is specified to be made on a day
which is not a Business Day, it shall be made on the next Business Day, and such
extension of time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
Section 2.11 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses or out-of-pocket
expenses in connection with (i) failure by the Borrower to borrow any Eurodollar
Advance after having given notice of its intention to borrow in accordance with
Section 2.2 hereof (whether by reason of the Borrower's election not to proceed
or the non-fulfillment of any of the conditions set forth in Article 3), (ii)
prepayment of any Eurodollar Advance in whole or in part for any reason, or
(iii) failure by the Borrower to prepay any Eurodollar Advance after giving
notice of its intention to prepay such Advance, the Borrower agrees to pay to
such Lender, upon demand, an amount sufficient to compensate such Lender for all
such losses and reasonable out-of-pocket expenses. Such Lender's good faith
determination of the amount of such losses or out-of-pocket expenses, as set
forth in writing pursuant to Section 2.11(b) hereof, and accompanied by
calculations in reasonable detail demonstrating the basis for its demand, shall
be presumptively correct.
(b) Losses subject to reimbursement hereunder shall be (i) any loss
incurred by any Lender in connection with the re-employment of funds prepaid,
repaid, not borrowed, or paid, as the case may be, and the amount of such loss
shall be the excess, if any, of (1) the interest or other cost to such Lender of
the deposit or other source of funding used to make any such Eurodollar Advance
for the remainder of its Interest Period, over (2) the interest earned (or to be
earned) by such Lender upon the re-lending or other redeployment of the amount
of such Eurodollar Advance for the remainder of its putative Interest Period or
(ii) any other expenses incurred by any Lender or any participant of such Lender
permitted hereunder in connection with the re-employment of funds prepaid,
repaid, not borrowed, or paid, as the case may be.
Section 2.12 Pro Rata Treatment.
(a) Advances. Each Advance of the Revolving Loans, the Tranche A Term Loans
or the Tranche B Term Loans from the Lenders shall be made pro rata on the basis
of the respective Commitment Ratios of the Lenders issuing and
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holding Commitments for such Loans, as set forth as of the Agreement Date on
Schedule 1 hereof with respect to the Lenders making Term Loans hereunder.
(b) Payments. Except as provided in Section 2.2(e)(iv) or Article 10 hereof
or elsewhere in this Agreement, each payment and prepayment of principal of the
Loans, and each payment of interest on the Loans, shall be made to the Lenders
pro rata on the basis of their respective unpaid principal amounts outstanding
immediately prior to such payment or prepayment. If any Lender shall obtain any
payment (whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans made by it in excess of its ratable share of
the Tranche A Loans, the Tranche B Term Loans, or the Revolving Loans, as the
case may be, such Lender shall forthwith purchase from the other Lenders such
interests (whether by purchasing a participation or by assignment) in the
applicable Loans made by them 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 Lender shall be rescinded and
each such Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.12(b) may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
(c) Delayed Permitted Asset Sale Prepayment. In the event proceeds from a
Permitted Asset Sale are used to reduce the outstanding principal balance of the
Revolving Loans (but not the Revolving Loan Commitment) in accordance with
Section 2.8(b)(ii) hereof and the Borrower fails to enter into a definitive
contract for purchase of an Allowable Wireless System or Systems within twelve
(12) months from the date of the Permitted Asset Sale or the Borrower shall not
have consummated any such purchase as of eighteen (18) months after the date of
such Permitted Asset Sale (for whatever reason, including a Default hereunder),
or the purchase price of such purchase shall be less than the Net Proceeds of
the Permitted Asset Sale, the proceeds of such Permitted Asset Sale, or
applicable portion thereof, shall be reallocated on the date twelve (12) months
or eighteen (18) months after the Permitted Asset Sale (as applicable) on a pro
rata basis in the manner set forth in
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Section 2.8(b)(i) hereof as if such proceeds had been used to permanently reduce
the Revolving Loan Commitment and the outstanding principal balance of the Term
Loans upon receipt thereof by the Borrower.
Section 2.13 Capital Adequacy. If, after the date hereof, the adoption of
any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after the
Agreement Date) or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Lender with any
directive issued or adopted after the date hereof regarding capital adequacy
(whether or not having the force of law) of any such governmental authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on any Lender's capital as a consequence of its obligations
hereunder with respect to the Term Loans and the Revolving Loan Commitment to a
level below that which it could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming that such Lender's capital was fully utilized prior to such adoption,
change or compliance) by an amount reasonably deemed by such Lender to be
material, then such Lender shall promptly notify the Borrower of such adoption,
compliance, or change. Upon demand by such Lender, the Borrower shall promptly
pay to such Lender such additional amounts as shall be sufficient to compensate
such Lender for such reduced return, together with interest on such amount from
the fourth (4th) day after the date of demand until payment in full thereof at
the Default Rate. A certificate of such Lender setting forth the amount to be
paid to such Lender by the Borrower as a result of any event referred to in this
paragraph and supporting calculations in reasonable detail shall be conclusive,
absent manifest error.
Section 2.14 Lender Tax Forms. On or prior to the first Payment Date
hereunder and on or prior to the first Business Day of each calendar year
thereafter, each Lender which is organized in a jurisdiction other than the
United States or a political subdivision thereof shall provide each of the
Administrative Agent and the Borrower with either (a) two (2) properly executed
originals of Form 4224 or Form 1001 (or any successor forms) prescribed by the
Internal Revenue Service or other documents satisfactory to the Borrower and the
Administrative Agent, and properly executed
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Internal Revenue Service Form W-8 or Form W-9, as the case may be, certifying
(i) as to such Lender's status for purposes of determining exemption from United
States withholding taxes with respect to all payments to be made to such Lender
hereunder and under the Notes or (ii) that all payments to be made to such
Lender hereunder and under the Notes are subject to such taxes at a rate reduced
to zero by an applicable tax treaty, or (b)(i) a certificate executed by such
Lender certifying that such Lender is not a "bank" and that such Lender
qualifies for the portfolio interest exemption under Section 881(c) of the
Internal Revenue Code of 1986, as amended, and (ii) two (2) properly executed
originals of Internal Revenue Service Form W-8 (or any successor form)
prescribed certifying such Lender's entitlement to an exemption from United
States withholding tax with respect to payments of interest to be made under
this Agreement and under any Note. Each such Lender agrees to provide the
Administrative Agent and the Borrower with new forms prescribed by the Internal
Revenue Service upon the expiration or obsolescence of any previously delivered
form, or after the occurrence of any event requiring a change in the most recent
forms delivered by it to the Administrative Agent and the Borrower.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Initial Advance. The obligation of the
Lenders to make the initial Advance hereunder is subject to the prior
fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the following
(with sufficient copies for each of the Lenders), in form and substance
satisfactory to the Administrative Agent and each of the Lenders:
(i) the loan certificate of the Borrower, in substantially the form
attached hereto as Exhibit O, including a certificate of incumbency with
respect to each Authorized Signatory, together with appropriate attachments
which shall include without limitation, the following items: (A) a copy of
the certificate of incorporation of the Borrower, certified to be true,
complete and correct by the Secretary of State of Delaware, and a true,
complete and correct copy of the by-laws of the Borrower, (B) certificates
of good standing for the Borrower issued by the Secretary of State or
similar state official for each state in which
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the Borrower is required to qualify or has qualified to do business, (C) a
true, complete and correct copy of the appropriate authorizing resolutions
of the Borrower, authorizing the Borrower to execute, deliver and perform
this Agreement and the other Loan Documents to which it is a party, and (D)
a true, complete and correct copy of any agreement in effect with respect
to the voting rights, ownership interests, or management of the Borrower;
(ii) duly executed Notes and Fee Letters;
(iii) duly executed Borrower's Pledge Agreement, together with
appropriate stock certificates and undated stock powers executed in blank;
(iv) duly executed Security Agreement, together with evidence of the
filing of appropriate UCC-1 financing statement forms;
(v) duly executed Subsidiary Security Agreement, executed and
delivered by each Restricted Subsidiary of the Borrower, together with
evidence of the filing of appropriate UCC-l financing statement forms;
(vi) copies of insurance binders or certificates covering the assets
of the Borrower and its Restricted Subsidiaries, and otherwise meeting the
requirements of Section 5.5 hereof;
(vii) legal opinions of (i) Rubin Baum Levin Constant & Friedman,
general counsel to the Borrower, and (ii) Gurman, Blask & Freedman, FCC
counsel to the Borrower and its Restricted Subsidiaries; each as counsel to
the Borrower and its Restricted Subsidiaries, addressed to each Lender and
the Administrative Agent, in form and substance satisfactory to the
Administrative Agent and its special counsel, and dated as of the Agreement
Date;
(viii) duly executed Request for Advance for the initial Advance of
the Loans, which Request for Advance shall include calculations
demonstrating, as of the Agreement Date, the Borrower's compliance with the
Financial Covenants hereof;
(ix) duly executed Use of Proceeds Letter;
(x) duly executed Certificate of Financial Condition for the Borrower
and its Restricted
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Subsidiaries on a consolidated basis, given by the chief financial officer
of the Borrower which shall include a certification that no event has
occurred which could have a Materially Adverse Effect since December 31,
1997;
(xi) any required FCC consents, Necessary Authorizations (except as
may be referred to in any Schedules hereto), or other required consents to
the closing of this Agreement or to the execution, delivery and performance
of this Agreement and the other Loan Documents;
(xii) duly executed Subsidiary Pledge Agreement from each Restricted
Subsidiary of the Borrower which has one or more corporate Restricted
Subsidiaries together with appropriate stock certificates and undated stock
powers executed in blank;
(xiii) duly executed Subsidiary Guaranty executed and delivered by
each Restricted Subsidiary of the Borrower;
(xiv) a loan certificate from each Restricted Subsidiary of the
Borrower, in substantially the form attached hereto as Exhibit P, with
respect to corporations, and Exhibit Q, with respect to partnerships,
including a certificate of incumbency with respect to each officer or
partner authorized to execute Loan Documents on behalf of such Subsidiary,
together with appropriate attachments which shall include, without
limitation, the following items, if a corporation, and the analogous items,
if a partnership: (A) a copy of the certificate or articles of
incorporation of such Restricted Subsidiary, certified to be true, complete
and correct by the Secretary of State from the jurisdiction of
incorporation of such Restricted Subsidiary, (B) certificates of good
standing for such Restricted Subsidiary issued by the Secretary of State or
similar state official for each state in which such Restricted Subsidiary
is incorporated or required to qualify to do business, (C) a true, complete
and correct copy of the By-Laws of such Restricted Subsidiary, and (D) a
true, complete and correct copy of the resolutions of such Restricted
Subsidiary authorizing it to execute, deliver and perform the Loan
Documents to which it is a party;
(xv) duly executed VoiceStream Guaranty;
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(xvi) duly executed VoiceStream Pledge Agreement pledging the stock of
the Borrower together with appropriate stock certificates and undated stock
powers executed in blank;
(xvii) copies of payoff letters and duly executed Lien releases with
respect to the Nortel Debt and associated Liens, and with respect to any
other Liens which are not Permitted Liens hereunder upon the assets of the
Borrower and its Restricted Subsidiaries, and with respect to any other
Indebtedness which is not Permitted Debt hereunder; and
(xvii) all such other documents as either the Administrative Agent or
any Lender may reasonably request, certified by an appropriate governmental
official or an Authorized Signatory if so requested.
(b) The Administrative Agent shall have received evidence satisfactory to
it that all Necessary Authorizations, including all necessary consents to the
execution, delivery and performance by the Borrower of this Agreement and the
other Loan Documents to which it is a party and by the Restricted Subsidiaries
of the Loan Documents to which they are parties, have been obtained or made, are
in full force and effect and are not subject to any pending or threatened
reversal or cancellation, and the Administrative Agent shall have received a
certificate of an Authorized Signatory so stating.
(c) The Lenders, the Administrative Agent, and Paul, Hastings, Janofsky &
Walker LLP, special counsel to the Administrative Agent, shall receive payment
of all fees and expenses due and payable on the Agreement Date in respect of the
transactions contemplated hereby.
(d) The Administrative Agent shall have received the Borrower's ten-year
projections, with quarterly projections for not less than the first five (5)
years of this Agreement.
(e) The Administrative Agent shall have received a certificate of the chief
financial officer of the Borrower satisfactory to it that the Borrower has
received Contributed Capital of $994,750,000 on or prior to the Agreement Date.
(f) The Administrative Agent and the Lenders shall have received evidence
satisfactory to them that, after funding the initial Advance of the Loans, the
Borrower has
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no outstanding Indebtedness for Money Borrowed other than amounts within the
Basket.
(g) The Administrative Agent and the Lenders shall be satisfied with the
capital and corporate structure of the Borrower and its Subsidiaries, including
its Restricted Subsidiaries, its Unrestricted Subsidiaries, and its Investments.
Section 3.2 Conditions Precedent to Each Advance. The obligation of the
Lenders to make each Advance (including the initial Advance hereunder) is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower and the
Restricted Subsidiaries under this Agreement and the other Loan Documents
(including, without limitation, all representations and warranties with respect
to the Borrower's Subsidiaries), which, pursuant to Section 4.2 hereof, are made
at and as of the time of such Advance, shall be true and correct at such time in
all material respects, both before and after giving effect to the application of
the proceeds of such Advance, and after giving effect to any updates to
information provided to the Lenders in accordance with the terms of such
representations and warranties, and no Default hereunder shall then exist or be
caused thereby;
(b) With respect to Advances which, if funded, would increase the aggregate
principal amount of Loans outstanding hereunder, the Administrative Agent shall
have received a duly executed Request for Advance and in the case of other
Advances, notice as required by Article 2 hereof;
(c) Each of the Administrative Agent and the Lenders shall have received
all such other certificates, reports, statements, opinions of counsel or other
documents as the Administrative Agent or any Lender may reasonably request;
(d) With respect to any Advance relating to any Acquisition, Investment or
the formation of any Restricted Subsidiary which is permitted hereunder, the
Administrative Agent and the Lenders shall have received such documents and
instruments relating to such Acquisition, Investment, or formation of a new
Restricted Subsidiary as are described in Section 5.13 hereof or otherwise
required herein; and
(e) There shall have occurred no event which could have a Materially
Adverse Effect.
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Section 3.3 Conditions Precedent to Initial Advance of the Revolving Loans.
The obligation of the Lenders to make the Initial Advance under the Revolving
Loan Commitment is subject to (i) the Administrative Agent's prior receipt of
evidence satisfactory to it that the Minimum Additional Contributed Capital
shall have been received by the Borrower, and (ii) the Term Loans hereunder
being fully drawn.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby agrees,
represents and warrants in favor of the Administrative Agent and each Lender
that:
(a) Organization; Ownership; Power; Qualification. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, having VoiceStream as its only
shareholder of record as of the Agreement Date. The Borrower has the corporate
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted. Each Subsidiary of the Borrower is
a corporation or a partnership duly organized, validly existing and in good
standing under the laws of the state of its incorporation or formation, and has
the corporate or partnership power and authority, as the case may be, to own its
properties and to carry on its business as now being and hereafter proposed to
be conducted. The Borrower and each of its Subsidiaries are duly qualified, in
good standing and authorized to do business in each jurisdiction in which the
character of their respective properties or the nature of their respective
businesses makes such qualification or authorization prudent.
(b) Authorization; Enforceability. The Borrower has the corporate power and
has taken all necessary action to authorize it to borrow hereunder, to execute,
deliver and perform this Agreement and each of the other Loan Documents to which
it is a party in accordance with their respective terms, and to consummate the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Borrower and is, and each of the other Loan
Documents to which the Borrower is party is, a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, subject, as to enforcement of remedies, to the following
qualifications: (i) an order of specific performance and an
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injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law, (ii) enforcement may be
limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of creditors' rights generally
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of the Borrower), and (iii) enforcement may be subject to general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law) and may be limited by public policies which may affect the
enforcement of certain rights or remedies provided for in this Agreement or the
Security Documents.
(c) Subsidiaries; Authorization; Enforceability. The Borrower's
Subsidiaries (including its Unrestricted Subsidiaries) and Investments and its
direct and indirect ownership thereof are set forth as of the Agreement Date on
Schedule 4 attached hereto, and the Borrower has the unrestricted right to vote
the issued and outstanding shares of the corporate Subsidiaries, and the right
to vote its partnership interests in the partnership Subsidiaries in accordance
with the terms of the applicable partnership agreement, shown thereon; such
shares of such corporate Subsidiaries have been duly authorized and issued and
are fully paid and nonassessable. Each Subsidiary of the Borrower has the
corporate or partnership power and authority, as the case may be, and has taken
all necessary corporate or partnership action to authorize it to execute,
deliver and perform each of the Loan Documents to which it is a party in
accordance with their respective terms and to consummate the transactions
contemplated by this Agreement and by such Loan Documents. Each of the Loan
Documents to which any Subsidiary of the Borrower is party is a legal, valid and
binding obligation of such Subsidiary enforceable against such Subsidiary in
accordance with its terms, subject, as to enforcement of remedies, to the
following qualifications: (i) an order of specific performance and an injunction
are discretionary remedies and, in particular, may not be available where
damages are considered an adequate remedy at law, (ii) enforcement may be
limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction
and other similar laws affecting enforcement of creditors' rights generally
(insofar as any such law relates to the bankruptcy, insolvency or similar event
of such Subsidiary), and (iii) enforcement may be subject to general principles
of equity (regardless of whether such enforcement is considered in a proceeding
in equity or at law) and may be limited by public policies which may affect
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the enforcement of certain rights or remedies provided for in such Loan
Documents.
(d) Compliance with Other Loan Documents and Contemplated Transactions. The
execution, delivery and performance, in accordance with their respective terms,
by the Borrower of this Agreement and the Notes, and by the Borrower and its
Subsidiaries of each of the other Loan Documents to which they are respectively
party, and the consummation of the transactions contemplated hereby and thereby,
do not and will not (i) require any consent or approval, governmental or
otherwise, not already obtained, (ii) violate any Applicable Law respecting the
Borrower or any Subsidiary of the Borrower, (iii) conflict with, result in a
breach of, or constitute a default under the certificate or articles of
incorporation or by-laws, or the partnership agreement, as the case may be, as
such documents are amended, of the Borrower or of any Subsidiary of the
Borrower, or under any material indenture, agreement, or other instrument, to
which the Borrower or any of its Subsidiaries is a party or by which any of them
or their respective properties may be bound, (iv) conflict with, result in a
breach of, or constitute a default or violation of, the terms and conditions of
any of the material Licenses, or (v) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower or any of its Subsidiaries, except for
Permitted Liens.
(e) Business. The Borrower is a holding company for all its Subsidiaries
and the Borrower, together with its Restricted Subsidiaries, is engaged in the
business of owning, operating, and investing in PCS Systems or otherwise
providing wireless communications or telecommunications services and in related
business activities.
(f) Licenses, Etc. The Licenses, as well as the Licenses held by
Unrestricted Subsidiaries, have been duly authorized by the grantors thereof and
are in full force and effect. The Borrower and its Subsidiaries are in
compliance in all material respects with all of the provisions thereof. Except
as set forth on Schedule 5 attached hereto, the Borrower and its Subsidiaries
have secured all material Licenses and Necessary Authorizations and all such
material Licenses and Necessary Authorizations are in full force and effect.
Except as set forth on Schedule 5 attached hereto, neither any material License
nor any material Necessary Authorization is the subject of any pending or, to
the best of the Borrower's knowledge, threatened revocation. For purposes of
this Section 4.1(f), "Licenses" shall mean and
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include Licenses of Unrestricted Subsidiaries, each of which shall be listed as
of the Agreement Date on Schedule 2 attached hereto.
(g) Compliance with Law. The Borrower and its Subsidiaries are in
substantial compliance with all material Applicable Law.
(h) Title to Assets. The Borrower has good, legal and marketable title to,
or a valid leasehold interest in, all of its assets. Each of the Borrower's
Subsidiaries has good, legal and marketable title to, or a valid leasehold
interest in, all of its assets. None of such properties or assets held by the
Borrower or any of its Restricted Subsidiaries is subject to any Liens, except
for Permitted Liens, and for financing statements securing the Nortel Debt for
which duly executed terminations have been presented as of the Agreement Date.
Except for financing statements evidencing Permitted Liens, or financing
statements securing the Nortel Debt for which duly executed terminations have
been presented as of the Agreement Date, no financing statement under the
Uniform Commercial Code as in effect in any jurisdiction and no other filing
which names the Borrower or any of its Restricted Subsidiaries as debtor or
which covers or purports to cover any of the assets of the Borrower or any of
its Restricted Subsidiaries is currently effective and on file in any state or
other jurisdiction, and neither the Borrower nor any of its Restricted
Subsidiaries has signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any such financing
statement or filing.
(i) Litigation. There is no action, suit, revocation, proceeding or
investigation pending against, or, to the best of the Borrower's knowledge,
threatened against or in any other manner relating adversely to, the Borrower or
any of its Subsidiaries or any of their respective properties, including without
limitation any License or Necessary Authorization, in any court or before any
arbitrator of any kind or before or by any governmental body (including without
limitation the FCC), except as described on Schedule 6 attached hereto as of the
Agreement Date or as subsequently disclosed to the Administrative Agent and the
Lenders pursuant to Section 6.5 hereof; and, except as expressly set forth on
Schedule 6 (or if disclosed pursuant to Section 6.5), no such action, suit,
proceeding or investigation could reasonably be expected to have an adverse
outcome which (i) calls into question the validity of this Agreement or any
other Loan Document, (ii)
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challenges the continued possession and use of any License granted by the FCC,
by the Borrower, any of its Subsidiaries, or any Person in which the Borrower
has, directly or indirectly, an Investment and such challenge could result in a
Default pursuant to Section 8.1(l) or Section 8.1(m) hereof, or (iii) could have
a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns (including information
returns) of the Borrower and each of its Subsidiaries required by law to be
filed have been duly filed and all federal, state and other taxes, including,
without limitation, withholding taxes, assessments and other governmental
charges or levies required to be paid by the Borrower or any of its Subsidiaries
or imposed upon the Borrower or any of its Subsidiaries or any of their
respective properties, income, profits or assets, which are due and payable,
have been paid, except any such taxes (i) the payment of which the Borrower or
any of its Subsidiaries is diligently contesting in good faith by appropriate
proceedings, (ii) for which adequate reserves have been provided on the books of
the Borrower or the Subsidiary of the Borrower involved, and (iii) as to which
no Lien other than a Permitted Lien has attached and no foreclosure, distraint,
sale or similar proceedings have been commenced. The charges, accruals and
reserves on the books of the Borrower and each of its Subsidiaries in respect of
taxes are, in the judgment of the Borrower, adequate.
(k) Financial Statements. The Borrower has furnished or caused to be
furnished to the Administrative Agent and the Lenders its unaudited balance
sheet dated the Agreement Date, audited financial statements on a consolidated
basis for VoiceStream and its Subsidiaries for the fiscal year ended December
31, 1997, which, together with other financial statements furnished to the
Administrative Agent and the Lenders subsequent to the Agreement Date, are
complete and correct in all material respects and present fairly in accordance
with GAAP the financial position of the Borrower and its Subsidiaries on a
consolidated basis on and as at such dates and the results of operations for the
periods then ended. Except as provided on Schedule 7 attached hereto, neither
the Borrower nor any of its Subsidiaries has any material liabilities,
contingent or otherwise, other than as disclosed in the financial statements
referred to in the preceding sentence or as set forth or referred to in this
Agreement, and there are no material unrealized losses of the Borrower or any of
its Subsidiaries and no anticipated losses of the Borrower or any of its
Subsidiaries other than those which have been
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disclosed in writing to the Administrative Agent and the Lenders prior to the
Agreement Date and identified as such.
(l) No Adverse Change. Since December 31, 1997, there has occurred no event
which has had or which could have a Materially Adverse Effect.
(m) ERISA. The Borrower and each Subsidiary of the Borrower and each of
their respective Plans are in compliance in all material respects with ERISA and
the Code and neither the Borrower nor any of its Subsidiaries has incurred any
accumulated funding deficiency with respect to any such Plan within the meaning
of ERISA or the Code. The Borrower, each of its Subsidiaries, and each other
ERISA Affiliate have complied with all requirements of Sections 10001 and 10002
of the Consolidated Omnibus Budget Reconciliation Act of 1985 (Public Law No.
99-272), Section 4980B of the Internal Revenue Code. Neither the Borrower nor
any of its Subsidiaries has made any promises of retirement or other benefits to
employees, except as set forth in their respective Plans, in written agreements
with such employees, or in the Borrower's employee handbook and memoranda to
employees. Neither the Borrower nor any of its Subsidiaries has incurred any
material liability to PBGC in connection with any such Plan. The assets of each
such Plan subject to Title IV of ERISA are sufficient to provide the benefits
under such Plan. Such assets are also sufficient to provide all other "benefit
liabilities" (as defined in Section 9313(a) of the Pension Protection Act
included in the Omnibus Budget Reconciliation Act of 1987, Pub. L-100-203),
Section 4001A(16) of ERISA, due under the Plan upon termination. No Reportable
Event has occurred and is continuing with respect to any such Plan. No such Plan
or trust created thereunder, or party in interest (as defined in Section 3(14)
of ERISA), or any fiduciary (as defined in Section 3(21) of ERISA), has engaged
in a "prohibited transaction" (as such term is defined in Section 406 of ERISA
or Section 4975 of the Code) which would subject such Plan or any other Plan of
the Borrower or any of its Subsidiaries, any trust created thereunder, or any
such party in interest or fiduciary, or any party dealing with any such Plan or
any such trust, to the tax or penalty in any material amount on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither the Borrower nor any of its Subsidiaries is a participant in or is
obligated to make any payment to a Multiemployer Plan. Neither the Borrower nor
any of its Subsidiaries (1) has had either a complete withdrawal or a partial
withdrawal under Section 4201 et. seq. of ERISA from a Multiemployer Plan which
had "unfunded vested benefits" within the meaning of
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Section 4211 of ERISA or (2) has ever received a notice and demand from the plan
sponsor of a Multiemployer Plan under Section 4219(b)(1) of ERISA.
(n) Compliance with Regulations G, T, U, and X. Neither the Borrower nor
any Subsidiary of the Borrower is engaged principally in or has as one of its
important activities the business of purchasing or carrying, or extending credit
for the purpose of purchasing or carrying, any margin stock within the meaning
of Regulations G, T, U, and X of the Board of Governors of the Federal Reserve
System; nor will any proceeds of the Loans be used for such purpose.
(o) Investment Company Act. Neither the Borrower nor any of its
Subsidiaries is required to register under the provisions of the Investment
Company Act of 1940, as amended, and neither the entering into or performance by
the Borrower and its Subsidiaries of this Agreement nor the issuance of the
Notes violates any provision of such Act or requires any consent, approval or
authorization of, or registration with, the Securities and Exchange Commission
or any other governmental or public body or authority pursuant to any provisions
of such Act.
(p) Governmental Regulation. Neither the Borrower nor any of its
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of this
Agreement. Neither the Borrower nor any of its Subsidiaries is required to
obtain any consent, approval, authorization, permit or license which has not
already been obtained from, or effect any filing or registration which has not
already been effected with, any federal, state or local regulatory authority in
connection with the performance, in accordance with their respective terms, of
this Agreement or any other Loan Document.
(q) Absence of Default, Etc. The Borrower and its Subsidiaries are in
compliance in all respects with all of the provisions of their respective
certificates or articles of incorporation and by-laws, or their partnership
agreements, as the case may be, and no event has occurred or failed to occur
(including, without limitation, any matter which could create a Default
hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or with the passage of
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time or giving of notice or both would constitute, (i) an Event of Default or
(ii) a material default by the Borrower or any of its Subsidiaries under any
indenture, agreement or other instrument relating to Indebtedness of the
Borrower or any of its Subsidiaries in the amount of $1,000,000 or more, any
License, or any judgment, decree or order in the amount of $1,000,000 or more to
which the Borrower or any of its Subsidiaries is a party or by which the
Borrower or any of its Subsidiaries or any of their respective properties may be
bound or affected. Neither the Borrower nor any of its Subsidiaries is a party
to or bound by any contract or agreement continuing after the Agreement Date, or
bound by any Applicable Law, that could have a Materially Adverse Effect or
result in the loss of any License issued by the FCC.
(r) Accuracy and Completeness of Information. All information, reports,
prospectuses and other papers and data relating to the Borrower or any of its
Subsidiaries and furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or the Lenders were, at the time
furnished, true, complete and correct in all material respects to the extent
necessary to give the Administrative Agent and the Lenders true and accurate
knowledge of the subject matter. No fact or situation is currently known to the
Borrower which has had or could have a Materially Adverse Effect other than any
fact or situation known to and affecting the cellular telephone, PCS or
telecommunications industry generally.
(s) Agreements with Affiliates and Management Agreements. Except as set
forth on Schedule 8 attached hereto, neither the Borrower nor any of its
Subsidiaries has (i) to the best of its knowledge, any written agreements or
binding arrangements of any kind with any Affiliate or (ii) any material
management or consulting agreements of any kind, not entered into in the
ordinary course of business.
(t) Payment of Wages. The Borrower and each of its Subsidiaries are in
compliance with the Fair Labor Standards Act, as amended, in all material
respects, and the Borrower and each of its Subsidiaries have paid all minimum
and overtime wages required by law to be paid to their respective employees.
(u) Priority. The Security Interest is a valid and perfected first priority
security interest in the Collateral in favor of the Administrative Agent, for
itself and for the ratable benefit of the Lenders, securing, in accordance with
the terms of the Security Documents, the outstanding
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Obligations, and the Collateral is subject to no Liens other than Permitted
Liens. The Liens created by the Security Documents are enforceable as security
for the outstanding Obligations in accordance with their terms with respect to
the Collateral subject, as to enforcement of remedies, to the following
qualifications: (i) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where damages
are considered an adequate remedy at law, (ii) enforcement may be limited by
bankruptcy, insolvency, liquidation, reorganization, reconstruction and other
similar laws affecting enforcement of creditors' rights generally (insofar as
any such law relates to the bankruptcy, insolvency or similar event of the
Borrower or any of its Restricted Subsidiaries, as the case may be), and (iii)
enforcement may be subject to general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law) and
may be limited by public policies which may affect the enforcement of certain
rights or remedies provided for in such Loan Documents.
(v) Indebtedness. Except as permitted pursuant to Section 7.1 hereof,
neither the Borrower nor any of its Restricted Subsidiaries has outstanding, as
of the Agreement Date, and after giving effect to the initial Advance hereunder
on the Agreement Date, any Indebtedness for Money Borrowed.
(w) Investments. All Investments of the Borrower and its Subsidiaries are
shown as of the Agreement Date on Schedule 4 attached hereto.
(x) Real Estate. Other than as listed and described on Schedule 9 attached
hereto, (i) neither the Borrower nor any of its Restricted Subsidiaries owns any
real property, and (ii) no single parcel of such real estate has a fair market
value on the Agreement Date in excess of $500,000.
(y) Year 2000 Problem. The Borrower has (i) initiated a review and
assessment of all areas within its and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors and customers) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower or any of its Subsidiaries (or
suppliers, vendors and customers) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan in
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accordance with that timetable. Based on the foregoing, the Borrower believes
that all computer applications (including those of its suppliers, vendors and
customers) that are material to its or any of its Subsidiaries' business and
operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after January 1,
2000.
(z) Intellectual Property. The Borrower and its Restricted Subsidiaries
own, possess or have the right to use all material licenses and rights to all
patents, trademarks, trademark rights, trade names, trade name rights, service
marks and copyrights necessary to conduct their business in all material
respects as now conducted, without known conflict with any patent, trademark,
trade name, service mark, license or copyright of any other Person, and such
intellectual property of the Borrower and its Restricted Subsidiaries is subject
to no Lien, other than any Permitted Liens. All such licenses and rights with
respect to patents, trademarks, trademark rights, trade names, trade name
rights, service marks and copyrights are in full force and effect in all
material respects, and are not subject to any pending or, to the best knowledge
of the Borrower, threatened attack or revocation.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made, and shall be true and correct, at and as
of the Agreement Date and on the date of each Advance except to the extent
expressly applicable only to the Agreement Date or previously fulfilled in
accordance with the terms hereof. All representations and warranties made under
this Agreement shall survive, and not be waived by, the execution hereof by the
Lenders and the Administrative Agent, any investigation or inquiry by any Lender
or the Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the Borrower
shall have the right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled), and unless the Majority Lenders, or
such greater number of Lenders as may be expressly provided herein, shall
otherwise consent in writing:
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Section 5.1 Preservation of Existence and Similar Matters. The Borrower
will, and will cause each of its Restricted Subsidiaries to:
(a) preserve and maintain its existence, rights, franchises, licenses and
privileges in the state of its incorporation and in each other state in which it
operates a material part of its business, including, without limitation, the
Licenses (in accordance with their respective terms) and all other Necessary
Authorizations (other than any such the loss of which would not be materially
disadvantageous to (i) the Lenders or (ii) the Borrower and its Subsidiaries,
taken as a whole); and
(b) qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business makes such qualification or authorization prudent.
Section 5.2 Business; Compliance with Applicable Law. The Borrower will,
and will cause each of its Restricted Subsidiaries to, (a) engage in the
business of owning, operating and Investing in PCS Systems or otherwise
providing wireless communication or telecommunication services and in related
business activities, and (b) substantially comply with the requirements of all
material Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and will cause
each of its Restricted Subsidiaries to, maintain or cause to be maintained in
the ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), and from time to time make or
cause to be made all needed and appropriate repairs, renewals, replacements,
additions, betterments and improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower will,
and will cause each of its Subsidiaries on a consolidated basis to, maintain a
system of accounting established and administered in accordance with GAAP, keep
adequate records and books of account in which complete entries will be made in
accordance with GAAP and reflecting all transactions required to be reflected by
GAAP and keep accurate and complete records of their respective properties and
assets. The Borrower and its Subsidiaries will maintain a fiscal year ending on
December 31.
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Section 5.5 Insurance. The Borrower will, and will cause each of its
Restricted Subsidiaries to:
(a) Maintain insurance including, but not limited to, business interruption
coverage and public liability coverage insurance from responsible companies in
such amounts and against such risks to the Borrower and each of its Restricted
Subsidiaries as is prudent and satisfactory to the Administrative Agent
(including, without limitation, larceny, embezzlement, employee fidelity, and
other criminal misappropriation insurance).
(b) Keep their respective assets insured by responsible companies on terms
and in a manner reasonably acceptable to the Administrative Agent against loss
or damage by fire, theft, burglary, pilferage, loss in transit, explosions and
hazards insured against by extended coverage, in amounts which are prudent for
the wireless telecommunications industry, in accordance with industry standards,
and satisfactory to the Administrative Agent, all premiums thereon to be paid by
the Borrower and its Restricted Subsidiaries.
(c) Require that each insurance policy for the Borrower and its Restricted
Subsidiaries provide for at least thirty (30) days' prior written notice to the
Administrative Agent of any termination of or proposed cancellation or
nonrenewal of such policy, or material reduction in coverage, and name the
Administrative Agent (for itself and for the ratable benefit of the Lenders) as
additional named loss payee to the extent of the Obligations and additional
named insured.
(d) Subject to subsection (e), below, Net Proceeds of insurance for the
Borrower and its Restricted Subsidiaries paid to the Administrative Agent shall
be applied to the payment or prepayment of the Obligations as provided under
Section 2.10(c) or Section 8.3 hereof, as applicable. Any balance thereof
remaining after payment in full of the Obligations shall be paid to the Borrower
or as otherwise required by law.
(e) If the Borrower or any one or more of its Restricted Subsidiaries shall
be entitled to receive proceeds from any policy of insurance in an amount less
than $2,500,000, then the Borrower or such Restricted Subsidiary shall have the
right to elect either to use such proceeds to repair or rebuild the affected PCS
System or to remit such proceeds to the Administrative Agent as provided under
Section 5.5(b) hereof. In the event such insurance proceeds
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exceed such threshold, the Administrative Agent shall hold such proceeds pending
its receipt from the Borrower of a plan for the use of such proceeds and the
approval of such plan by the Majority Lenders.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and will cause
each of its Restricted Subsidiaries to, pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by them or imposed upon them or their income or
profits or upon any properties belonging to them, prior to the date on which
penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; except that no such tax, assessment, charge, levy or claim need be
paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale or similar proceedings shall have been commenced.
The Borrower will, and will cause each of its Restricted Subsidiaries to, timely
file all information returns required by federal, state or local tax
authorities.
Section 5.7 Visits and Inspections. The Borrower will, and will cause each
of its Restricted Subsidiaries to, permit representatives of the Administrative
Agent and any of the Lenders, upon reasonable notice to the Borrower or such
Restricted Subsidiary and during normal business hours (i) visit and inspect the
properties of the Borrower or such Restricted Subsidiary, (ii) inspect and make
extracts from and copies of their respective books and records, and (iii)
discuss with their respective principal officers their respective businesses,
assets, liabilities, financial positions, results of operations and business
prospects. The Borrower and each of its Restricted Subsidiaries will also permit
representatives of the Administrative Agent and any of the Lenders to discuss
with their respective auditors their respective businesses, assets, liabilities,
financial positions, results of operations and business prospects.
Section 5.8 Payment of Indebtedness; Loans. Subject to any provisions
regarding subordination herein or as set forth in any other Loan Document, the
Borrower will, and will cause each of its Restricted Subsidiaries to, pay any
and all of their respective Indebtedness when and as it
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becomes due, other than amounts diligently disputed in good faith and for which
adequate reserves have been set aside in accordance with GAAP.
Section 5.9 Use of Proceeds. The Borrower will use the aggregate proceeds
of all Advances (i) to finance Permitted Investments, (ii) to fund Capital
Expenditures, (iii) to (directly or indirectly through Restricted Subsidiaries)
acquire Allowable Wireless Systems as permitted hereunder, and (iv) for working
capital and other general corporate purposes. In addition, on the Agreement Date
with the proceeds of the Initial Advance hereunder, the Borrower shall repay the
Nortel Debt. No proceeds of Advances hereunder shall be used for the purchase or
carrying or the extension of credit for the purpose of purchasing or carrying
any margin stock within the meaning of Regulations G, T, U, and X of the Board
of Governors of the Federal Reserve System.
Section 5.10 Real Estate. The Borrower will, and will cause its Restricted
Subsidiaries to, grant a mortgage securing the Obligations to the Administrative
Agent, for itself and for the ratable benefit of the Lenders, in form and
substance satisfactory to the Administrative Agent, covering each parcel of real
estate having a fair market value, exclusive of equipment, in excess of $500,000
acquired by the Borrower or any of its Restricted Subsidiaries after the
Agreement Date. The Borrower will, and will cause its Restricted Subsidiaries
to, deliver to the Administrative Agent all documentation, including opinions of
counsel and policies of title insurance, which in the opinion of the
Administrative Agent is appropriate with each such grant, including any Phase I
environmental audit requested by the Administrative Agent or any Lender.
Section 5.11 Indemnity. The Borrower, for itself and on behalf of each of
its Restricted Subsidiaries agrees, jointly and severally, to indemnify and hold
harmless each Lender and the Administrative Agent and each of their respective
affiliates, employees, representatives, officers, trustees and directors (any of
the foregoing shall be an "Indemnitee") from and against any and all claims,
liabilities, losses, damages, actions, reasonable attorneys' fees and expenses
(as such fees and expenses are incurred) and demands by any party, including the
costs of investigating and defending such claims, whether or not the Borrower,
any Restricted Subsidiary of the Borrower, or the Person seeking indemnification
is the prevailing party (a) resulting from any breach or alleged breach by the
Borrower or any Restricted Subsidiary of the Borrower of any
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representation, warranty, or covenant made hereunder or under any other Loan
Document; (b) arising out of or in connection with (i) the Revolving Loan
Commitment, the Loans or otherwise under this Agreement or any other Loan
Document (including the taking of Collateral for the Obligations), including the
use of the proceeds of Loans hereunder in any fashion by the Borrower or any of
its Restricted Subsidiaries or the performance of their respective obligations
under the Loan Documents by the Borrower or any of its Restricted Subsidiaries,
(ii) allegations of any participation by the Lenders or the Administrative
Agent, or any of them, in the affairs of the Borrower or any of its Restricted
Subsidiaries, or allegations that any of them has any joint liability with the
Borrower or any of its Restricted Subsidiaries for any reason, or (iii) any
claims against the Lenders or the Administrative Agent, or any of them, by any
shareholder, partner, or other investor in or lender to the Borrower or any
Restricted Subsidiary, by any brokers or finders or investment advisers or
investment bankers retained by the Borrower or by any other third party, arising
out of the Revolving Loan Commitment, the Loans or otherwise under this
Agreement or any other Loan Document; or (c) in connection with taxes (other
than income taxes), fees, and other charges payable in connection with the
Loans, or the execution, delivery, and enforcement of this Agreement, the
Security Documents, the other Loan Documents, and any amendments thereto or
waivers of any of the provisions thereof; unless the Person seeking
indemnification hereunder is determined in such case to have acted with gross
negligence or willful misconduct, in any case by a final, non-appealable
judicial order. The obligations of the Borrower and the Restricted Subsidiaries
under this Section 5.11 are in addition to, and shall not otherwise limit, any
liabilities which the Borrower or any Restricted Subsidiary might otherwise have
in connection with any warranties or similar obligations of the Borrower or such
Restricted Subsidiary in any other agreement or instrument or for any other
reason.
Section 5.12 Interest Rate Hedging. The Borrower shall, within ninety (90)
days from the Agreement Date and at all times thereafter, maintain one or more
Interest Hedge Agreements which result in the fixing of a limit on the interest
obligations of an aggregate principal amount of not less than fifty percent
(50%) of the then outstanding Total Debt. Such Interest Hedge Agreements shall
provide interest rate protection on terms reasonably acceptable to the
Administrative Agent for an average period of the lesser of three (3) years from
the date of such Interest Hedge Agreement or Agreements or the period remaining
until the
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Revolving Loan Maturity Date with respect to Interest Rate Hedge Agreements
entered into in connection with the Revolving Loans and the Tranche A Term Loans
and the Final Maturity Date with respect to Interest Rate Hedge Agreements
entered into in connection with the Term Loans, such terms to include
consideration of the creditworthiness of the other party to the proposed
Interest Hedge Agreement. All Obligations of the Borrower to any of the Lenders
pursuant to any Interest Hedge Agreement shall rank pari passu with all other
Obligations.
Section 5.13 Covenants Regarding Formation of Restricted Subsidiaries and
the Making of Investments and Acquisitions. At the time of any Acquisition
permitted hereunder by the Borrower or any Restricted Subsidiary, or the
formation of any new Restricted Subsidiary of the Borrower or any of its
Restricted Subsidiaries (except for Restricted Subsidiaries which are then
inactive and which have no assets) which is permitted under this Agreement, the
Borrower will, and will cause its Restricted Subsidiaries, as appropriate, to
(a) in the case of the formation or Acquisition of a new Restricted Subsidiary,
provide to the Administrative Agent an executed Subsidiary Security Agreement
for such new Restricted Subsidiary, in substantially the form of Exhibit I
attached hereto, together with appropriate UCC-1 financing statements, as well
as an executed Subsidiary Guaranty for such new Restricted Subsidiary, in
substantially the form of Exhibit G attached hereto, which shall constitute both
Security Documents and Loan Documents for purposes of this Agreement, as well as
a loan certificate for such new Restricted Subsidiary, substantially in the form
of Exhibit P or Exhibit Q attached hereto, as appropriate, together with
appropriate attachments; (b) in the case of any Acquisition by the Borrower or
any Restricted Subsidiary or the formation of any new Restricted Subsidiary,
pledge to the Administrative Agent all of the stock (or other instruments or
securities evidencing ownership) of such Restricted Subsidiary or Person which
is acquired or formed, beneficially owned by the Borrower or any of the
Borrower's Restricted Subsidiaries, as the case may be, as additional Collateral
for the Obligations to be held by the Administrative Agent in accordance with
the terms of the Borrower's Pledge Agreement, Subsidiary Pledge Agreement, or a
new Subsidiary Pledge Agreement in substantially the form of Exhibit H attached
hereto, and execute and deliver to the Administrative Agent all such
documentation for such pledge as, in the reasonable opinion of the
Administrative Agent, is appropriate; and (c) in any case, provide all other
documentation, including one or more opinions of counsel
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satisfactory to the Administrative Agent which in the opinion of the
Administrative Agent is appropriate with respect to such Acquisition or the
formation of such Restricted Subsidiary. Investments made by the Borrower or any
of its Restricted Subsidiaries after the Agreement Date shall also be treated as
additional Collateral and shall be subject to the provisions of appropriate
Security Documents. Any document, agreement or instrument executed or issued
pursuant to this Section 5.13 shall be a "Loan Document" for purposes of this
Agreement.
Section 5.14 Designation of Unrestricted Subsidiaries as Restricted
Subsidiaries. Upon not less than three (3) Business Days' prior written notice
by the Borrower to the Administrative Agent, any Unrestricted Subsidiary of the
Borrower may be designated as a Restricted Subsidiary hereunder, provided that
(i) no Default then exists or would be caused thereby, (ii) any such Subsidiary
does not (at the time of such designation) have outstanding any Indebtedness for
Money Borrowed other than Permitted Debt, or any Liens on its assets or
properties other than Permitted Liens, and (iii) such Subsidiary shall provide
to the Administrative Agent an executed Subsidiary Security Agreement, in
substantially the form of Exhibit I attached hereto, together with appropriate
UCC-1 financing statements, an executed Subsidiary Guaranty in substantially the
form of Exhibit G attached hereto, and a Subsidiary Pledge Agreement (given by
itself if appropriate and, if its stock or other securities are not then
Collateral, given by its parent company), in substantially the form attached
hereto, as Exhibit H, together with appropriate stock certificates and stock
powers therefor, as well as an appropriate loan certificate for such new
Restricted Subsidiary, substantially in the form of Exhibit P or Exhibit Q,
attached hereto, as appropriate. Such new Restricted Subsidiary shall also
provide all other documentation which in the opinion of the Administrative Agent
is appropriate with respect to the designation of such Unrestricted Subsidiary
as a Restricted Subsidiary, including legal opinions if advisable, all of which
documents shall constitute Security Documents and Loan Documents for purposes of
this Agreement. The Borrower may not designate a Restricted Subsidiary as an
Unrestricted Subsidiary.
Section 5.15 Payment of Wages. The Borrower and each of its Restricted
Subsidiaries shall at all times comply, in all material respects, with the
requirements of the Fair Labor Standards Act, as amended, including, without
limitation, the provisions of such Act relating to the
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payment of minimum and overtime wages as the same may become due from time to
time.
Section 5.16 Year 2000 Problem. The Borrower agrees to remain substantially
in compliance with the plan dealing with the "Year 2000 Problem" described in
Section 4.1(y), except to the extent that non-compliance therewith would not
have a Materially Adverse Effect.
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the Borrower
has a right to borrow hereunder (whether or not the conditions to borrowing have
been or can be fulfilled), and unless the Majority Lenders, or such greater
number of Lenders as may be expressly provided herein, shall otherwise consent
in writing, the Borrower will furnish or cause to be furnished to each Lender
and the Administrative Agent, at their respective offices:
Section 6.1 Quarterly Financial Statements and Information. Within sixty
(60) days after the last day of each quarter of each fiscal year of the
Borrower, unaudited balance sheets of the Borrower on a consolidated basis with
its Restricted Subsidiaries, and on a consolidated basis with all of its
Subsidiaries, as at the end of such quarter and as of the end of the preceding
fiscal year, and the related statements of operations and the related statements
of cash flows of the Borrower on a consolidated basis with its Restricted
Subsidiaries, and on a consolidated basis with all of its Subsidiaries, for such
quarter and for the elapsed portion of the year ended with the last day of such
quarter, which shall set forth in comparative form such figures as at the end of
and for such quarter and the appropriate prior period (but only for such quarter
and other periods for which such comparative figures are available) and shall be
certified by the chief financial officer of the Borrower, to be, in his or her
opinion, complete and correct in all material respects and to present fairly, in
accordance with GAAP (except as to the exclusion of Unrestricted Subsidiaries
which should be consolidated with the Borrower under GAAP), the financial
position of the Borrower on a consolidated basis with its Restricted
Subsidiaries and on a consolidated basis with all of its Subsidiaries, as at the
end of such period and the results of operations for such period, and for the
elapsed portion of the year ended with the last day of such period, subject only
to normal year-end adjustments.
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Section 6.2 Annual Financial Statements and Information. Within one hundred
twenty (120) days after the end of each fiscal year of the Borrower, the audited
consolidated balance sheet of the Borrower and its Restricted Subsidiaries as of
the end of such fiscal year and the related audited consolidated statements of
operations for such fiscal year and, to the extent available, for the previous
two (2) fiscal years, the related audited consolidated statements of changes in
shareholders' equity for such fiscal year and, to the extent available, for the
previous two (2) fiscal years, and related audited consolidated statements of
cash flows of such fiscal year and, to the extent available, for the previous
two (2) fiscal years, which shall be accompanied by an opinion of Arthur
Anderson & Co., or other independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent, together
with a statement of such accountants that in connection with their audit,
nothing came to their attention that caused them to believe that the Borrower
was not in compliance with the terms, covenants, provisions or conditions of
Article 7 hereof.
Section 6.3 Performance Certificates. At the time the financial statements
are furnished pursuant to Sections 6.1 and 6.2 hereof, the Performance
Certificate:
(a) setting forth as at the end of such quarterly period or fiscal year, as
the case may be, the arithmetical calculations required to establish (i) any
interest rate adjustment, as provided for in Section 2.3(f) hereof, and (ii)
whether or not the Borrower was in compliance with the requirements of the
Financial Covenants hereof;
(b) setting forth on a consolidated basis for the Borrower and its
Restricted Subsidiaries, for each such fiscal quarter or fiscal year, as the
case may be, (i) the number of PCS System subscribers at the beginning of such
period, (ii) the number of gross new PCS System subscribers added and
deactivated PCS System subscribers lost during such period, and (iii) the number
of PCS System subscribers at the end of such period; and
(c) stating that, to the best of his or her knowledge, no Default or Event
of Default has occurred as at the end of such quarterly period or year, as the
case may be, or, if a Default or an Event of Default has occurred, disclosing
each such Default or Event of Default and its nature, when it occurred, whether
it is continuing and the steps being taken
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by the Borrower with respect to such Default or Event of Default.
Section 6.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all material reports, if any,
submitted to the Borrower by the Borrower's independent public accountants
regarding the Borrower, including, without limitation, any management report
prepared in connection with the annual audit referred to in Section 6.2.
(b) Promptly upon receipt thereof, copies of any material adverse notice or
report regarding any License held by the Borrower or any Restricted Subsidiary
from the FCC.
(c) In connection with any proposed Acquisition by the Borrower or any
Restricted Subsidiary and promptly upon each request, such data, certificates,
reports, statements, opinions of counsel prepared for the Administrative Agent
and the Lenders, or any of them, documents or further information regarding the
business, assets, liabilities, financial position, projections, results of
operations or business prospects of the Borrower or any of its Restricted
Subsidiaries as the Administrative Agent or any Lender may reasonably request.
(d) Annually, a certificate of insurance indicating that the requirements
of Section 5.5 hereof remain satisfied for such fiscal year.
(e) Annually, and in no event later than January 31 of any year, a copy of
the Borrower's annual financial projections for itself and its Restricted
Subsidiaries for such fiscal year.
(f) Upon request, information reasonably requested by the Administrative
Agent with regard to the "Year 2000 Problem," described in Section 4.1(y)hereof.
Section 6.5 Notice of Litigation and Other Matters. Notice specifying the
nature and status of any of the following events, promptly, but in any event not
later than ten (10) days after any officer of the Borrower becomes aware of the
occurrence of any of the following events:
(a) the commencement of all material proceedings and investigations by or
before any governmental body and all actions and proceedings in any court or
before any arbitrator against, or to the extent known to the Borrower,
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in any other way relating materially adversely to the Borrower or any Restricted
Subsidiary of the Borrower, or any of their respective properties, assets or
businesses or any License;
(b) any material adverse change with respect to the business, assets,
liabilities, financial position, results of operations or business prospects of
the Borrower or any Restricted Subsidiary of the Borrower, other than changes in
the ordinary course of business which have not had and could not have a
Materially Adverse Effect;
(c) any Default or the occurrence or non-occurrence of any event (A) which
constitutes, or which with the passage of time or giving of notice or both would
constitute a material default by the Borrower or any Restricted Subsidiary of
the Borrower under any material agreement other than this Agreement to which the
Borrower or any Restricted Subsidiary of the Borrower is a party or by which any
of their respective properties may be bound, or (B) which could have a
Materially Adverse Effect, giving in each case the details thereof and
specifying the action proposed to be taken with respect thereto;
(d) the occurrence of any Reportable Event or a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
with respect to any Plan of the Borrower or any of its Subsidiaries or the
institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it
or the trustee of any such Plan with respect to such Plan; and
(e) the occurrence of any event subsequent to the Agreement Date which, if
such event had occurred prior to the Agreement Date, would have constituted an
exception to the representation and warranty in Section 4.1(m) of this
Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the Borrower
has a right to borrow from the Lenders hereunder (whether or not the conditions
to borrowing have been or can be fulfilled), and unless the Majority Lenders, or
such greater number of Lenders as may
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be expressly provided herein, shall otherwise consent in writing:
Section 7.1 Indebtedness of the Borrower and its Restricted Subsidiaries.
The Borrower shall not, and shall cause each of its Restricted Subsidiaries
not to, create, assume, incur or otherwise become or remain obligated in respect
of, or permit to be outstanding, any Indebtedness except:
(a) The Obligations;
(b) Current accounts payable, accrued expenses and customer advance
payments incurred in the ordinary course of business;
(c) Specified Transactions in the aggregate not to exceed the Basket;
(d) Indebtedness secured by Permitted Liens (other than those described in
items (a) and (i) of the definition of Permitted Liens);
(e) Obligations under Interest Hedge Agreements;
(f) Indebtedness of the Borrower or any of its Restricted Subsidiaries to
the Borrower or any other Restricted Subsidiary, and Indebtedness expressly
permitted under Section 7.5 hereof; and
(g) Indebtedness representing extensions, renewals, refinancings or
replacements (but not increases in principal amounts) of the foregoing.
Section 7.2 Limitation on Liens. The Borrower shall not, and shall cause
each of its Restricted Subsidiaries not to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of their respective properties or assets, whether
now owned or hereafter acquired, except for Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall cause
each of its Restricted Subsidiaries not to, except in connection with a
transaction otherwise permitted hereunder, enter into any amendment of, or agree
to or accept or consent to any waiver of any of the material provisions of its
articles or certificate of incorporation or partnership agreement, as
appropriate.
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Section 7.4 Liquidation, Merger, Disposition of Assets.
(a) Disposition of Assets. The Borrower shall not, and shall cause each of
its Restricted Subsidiaries not to, at any time sell, lease, abandon, or
otherwise dispose of any of its or their Core Properties (other than swaps of
PCS Systems permitted under Section 7.6(b)(i) hereof) unless (i) Net Proceeds
therefrom are applied as provided in Section 2.8(b) hereof, and (ii) no Default
then exists or would be caused thereby (unless such sale, lease, abandonment or
other disposal would cure any such Default). At the time of any such Permitted
Asset Sale hereunder, the Borrower shall provide the Administrative Agent and
the Lenders with projections assuming the consummation of the Permitted Asset
Sale and demonstrating pro forma compliance with the Financial Covenants hereof
for the remaining term of this Agreement.
(b) Liquidation or Merger. The Borrower shall not, and shall cause each of
its Restricted Subsidiaries not to, at any time liquidate or dissolve itself (or
suffer any liquidation or dissolution) or otherwise wind up, or enter into any
merger, provided that if no Default then exists or would be caused thereby, the
following such transactions are permitted: (i) a merger among the Borrower and
one or more Restricted Subsidiaries, provided the Borrower is the surviving
corporation; (ii) a merger between or among two or more Restricted Subsidiaries;
(iii) an Acquisition permitted hereunder effected by a merger in which the
Borrower or a Restricted Subsidiary of the Borrower is the surviving Person; and
(iv) a liquidation or dissolution of one or more Restricted Subsidiaries into
its or their parent entity (provided the Borrower or one of its Restricted
Subsidiaries is such parent entity).
Section 7.5 Limitation on Guaranties. The Borrower shall not, and shall
cause each of its Restricted Subsidiaries not to, at any time Guaranty, assume,
be obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) a guaranty by endorsement of
negotiable instruments for collection in the ordinary course of business, or (b)
obligations under agreements of the Borrower or any of its Restricted
Subsidiaries entered into in connection with leases of real property or the
acquisition of services, supplies and equipment in the ordinary course of
business of the Borrower or any of its Restricted Subsidiaries, or (c) as may be
contained in any Loan Document including, without limitation, the Subsidiary
Guaranty, or (d) a Guaranty of
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any obligation of any employee of the Borrower or any of its Restricted
Subsidiaries, provided that the aggregate amount guaranteed under all such
Guaranties under this Section 7.5(d) shall not exceed $1,000,000 at any time.
Section 7.6 Investments and Acquisitions. The Borrower shall not, and shall
cause each of its Restricted Subsidiaries not to, make any loan or advance, or
make any Investment or otherwise acquire for consideration evidences of
Indebtedness, capital stock or other securities of any Person, or make any
Acquisition, except that the Borrower may make Investments in its own Restricted
Subsidiaries, and that, so long as no Default then exists or would be caused
thereby:
(a) Cash Equivalents. The Borrower and its Restricted Subsidiaries may,
directly or through a brokerage account (i) purchase marketable, direct
obligations of the United States of America, its agencies and instrumentalities
maturing within three hundred sixty-five (365) days of the date of purchase,
(ii) purchase commercial paper issued by corporations, each of which shall have
a combined net worth of at least $100 million and each of which conducts a
substantial part of its business in the United States of America, maturing
within two hundred seventy (270) days from the date of the original issue
thereof, and rated "P-2" or better by Moody's Investors Service, Inc. or "A-2"
or better by Standard and Poor's Ratings Group, (iii) purchase repurchase
agreements, bankers' acceptances, and certificates of deposit maturing within
three hundred sixty-five (365) days of the date of purchase which are issued by,
or time deposits maintained with, a United States national bank the deposits of
which are insured by the Federal Deposit Insurance Corporation and having
capital, surplus and undivided profits totaling more than $100 million and rated
"A" or better by Moody's Investors Service, Inc. or Standard and Poor's Ratings
Group, and (iv) purchase shares of any open-end investment company registered
under the Investment Company Act of 1940, that invests all or substantially all
of its funds in the items described in clauses (i) through (iii), above, which
meets the requirements set forth in Rule 2a-7, Money Market Funds, under that
Act, made available by any Lender or its Affiliate;
(b) Acquisitions. (i) Subject to compliance with subsection (ii) of this
Section 7.6(b), the Borrower and its Restricted Subsidiaries may make
Acquisitions as follows:
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(A) Acquisitions of Allowable Wireless Systems as permitted by Section
2.8(b)(ii) hereof;
(B) Acquisitions of Allowable Wireless Systems, and dispositions of
PCS Systems, in connection with swap transactions involving the trade of
its PCS Systems for those of other operators of PCS Systems (whether or not
such swaps involve boot);
(C) Other Acquisitions of Allowable Wireless
Systems; and
(D) Acquisitions of PCS Systems other than the Allowable Wireless
Systems subject to the approval of and upon terms and conditions
satisfactory to the Majority Lenders.
(ii) No Acquisitions otherwise permitted under Section 7.6(b) hereof may be
consummated unless:
(A) the Borrower shall have demonstrated through revised projections
assuming the consummation of the Acquisition its pro forma compliance with
the Financial Covenants hereof, after giving effect to such Acquisition and
shall have certified to the Administrative Agent and the Lenders that such
Acquisition shall not have a Materially Adverse Effect;
(B) with respect to any Acquisition for total consideration of more
than $10,000,000, the Borrower shall provide the Administrative Agent and
the Lenders with notice, not less than thirty (30) days prior to the
proposed closing thereof, and with copies of all material information
pertaining to such Acquisition, and a certificate signed by the chief
financial officer of the Borrower, certifying the Borrower's pro forma
compliance with the Financial Covenants hereof, together with any
calculations necessary to demonstrate such compliance; and
(C) Section 5.13 of this Agreement has been complied with.
(c) Other Investments.
(i) The Borrower and its Restricted Subsidiaries may (in addition to any
Investments or Acquisitions otherwise permitted under this Section 7.6) make
Investments in Unrestricted Subsidiaries engaged primarily in the business of
wireless communications.
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(ii) No Investment otherwise permitted under this Section 7.6(c) hereof may
be consummated unless:
(A) the Borrower shall have demonstrated through revised projections
assuming the consummation of the Investment its pro forma compliance with
the Financial Covenants hereof, after giving effect to the Advance of the
Loans used for such Investment, and shall have certified to the
Administrative Agent and the Lenders that such Investment shall not have a
Materially Adverse Effect; and
(B) with respect to any Investment of more than $10,000,000, the
Borrower shall provide the Administrative Agent and the Lenders with
notice, not less than ten (10) days prior to the proposed closing of the
Investment, and with copies of all material information pertaining to such
Investment, and a certificate signed by the chief financial officer of the
Borrower certifying the Borrower's pro forma compliance with the Financial
Covenants hereof, together with any calculations necessary to demonstrate
such compliance.
(d) Dollar Limitations on Acquisitions and Investments. The aggregate
amount of Investments and Acquisitions permitted pursuant to Section 7.6(b) and
Section 7.6(c) during the term of this Agreement shall be $225,000,000, plus
Available Equity; provided, however, that prior to the Investment in the
Borrower and its Restricted Subsidiaries of Minimum Additional Contributed
Capital, the aggregate amount of Investments pursuant to Section 7.6(c) hereof
shall be limited to $125,000,000, and Investments shall be limited to
Investments in Unrestricted Subsidiaries for the purpose of making Investments
in Cook Inlet Western Wireless PV/SS PCS, L.P. and in a venture relating to the
Wichita BTA; and provided further, however, that subsequent to the infusion of
Minimum Additional Contributed Capital into the Borrower and its Restricted
Subsidiaries, up to $175,000,000 plus Available Equity of the aggregate
limitation on Investments and Acquisitions may be used for Investments pursuant
to Section 7.6(c) hereof, with $75,000,000 plus Available Equity being
thereafter available for Investments in the business of wireless communications
other than Investments in Unrestricted Subsidiaries for the purpose of making
Investments in Cook Inlet Western Wireless PV/SS PCS, L.P. and in a venture
relating to the Wichita BTA. Available Equity may be allocated at the Borrower's
discretion to increase the available basket for Acquisitions and Investments,
but may not be double-counted.
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(e) Employee Loans. The Borrower and its Restricted Subsidiaries may make
loans to employees, (i) in connection with stock option plans, provided (x) such
loans do not involve cash payments by the Borrower and (y) the Borrower and its
Restricted Subsidiaries incur no obligations at any time to repurchase the stock
so purchased, and (ii) for all other purposes in an amount not to exceed, in the
aggregate outstanding at any time, $1,000,000.
Section 7.7 Restricted Payments and Purchases. The Borrower shall not, and
shall cause each of its Restricted Subsidiaries not to, directly or indirectly
declare or make any Restricted Payment or Restricted Purchase, except that so
long as no Default hereunder then exists or would be caused thereby: (a) the
Borrower may make Restricted Payments to VoiceStream, to permit VoiceStream to
make scheduled payments of interest on Subordinated Debt, to the extent the Net
Proceeds of such Subordinated Debt were Invested in the Borrower and its
Restricted Subsidiaries, (b) on June 30, 2000 and on each June 30th thereafter,
the Borrower may pay dividends or make other distributions to VoiceStream, to
service Subordinated Debt or for any other purpose, provided that (i) the
Borrower shall have prepaid the Loans from the Borrower's Excess Cash Flow for
the preceding fiscal year in the amount required by Section 2.8(a) hereof, (ii)
the aggregate amount of such dividends and distributions shall not exceed, in
any year, the amount of the Borrower's Excess Cash Flow for the preceding fiscal
year remaining after payment of the amount required to be prepaid on the Loans
by the Borrower pursuant to Section 2.8(a) hereof, and (iii) the Borrower shall
provide the Lenders with a certificate, signed by the chief financial officer of
the Borrower, demonstrating pro forma compliance with the terms of this Section
7.7, after giving effect to such dividend payments; and (c) the Borrower may
make payments required to be made under the VoiceStream Agreements.
Section 7.8 Stage One -- Ratio of Senior Debt to Contributed Capital. The
Borrower shall not as of the end of any fiscal quarter prior to April 1, 2002,
permit the ratio of its (i) Senior Debt to (ii) the sum (without
double-counting) of Contributed Capital plus Additional Contributed Capital, to
exceed the ratios set forth below for such fiscal quarter ends:
<TABLE>
<CAPTION>
Quarter Ended: Ratio
-----
<S> <C>
Agreement Date through December 31, 1999 40%
January 1, 2000 through March 31, 2002 45%
</TABLE>
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Section 7.9 Stage One -- Ratio of Total Debt to Contributed Capital. The
Borrower shall not permit the ratio as of the end of any fiscal quarter of its
(i) Total Debt to (ii) the sum (without double-counting) of its Contributed
Capital plus its Additional Contributed Capital, to exceed sixty percent (60%)
as of the end of any fiscal quarter prior to April 1, 2002.
Section 7.10 Stage One -- Minimum Annualized Revenues. The Borrower shall
not permit its Annualized Revenues as of the end of any fiscal quarter shown
below to be less than the Minimum Annualized Revenues shown for such period:
<TABLE>
<CAPTION>
Period Ending Minimum Annualized Revenues
------------- ---------------------------
<S> <C>
6/30/98 $ 75,000,000
9/30/98 $ 92,000,000
12/31/98 $110,000,000
3/31/99 $130,000,000
6/30/99 $150,000,000
9/30/99 $175,000,000
12/31/99 $200,000,000
3/31/00 $220,000,000
6/30/00 $245,000,000
9/30/00 $270,000,000
12/31/00 $295,000,000
3/31/01 $320,000,000
6/30/01 $340,000,000
9/30/01 $365,000,000
12/31/01 $390,000,000
3/31/02 $410,000,000
</TABLE>
Section 7.11 Stage One -- Maximum Capital Expenditures. The Borrower shall
not permit in any fiscal year its Capital Expenditures to exceed the Maximum
Capital Expenditures for such fiscal year shown below:
<TABLE>
<CAPTION>
Period Ending Maximum Capital Expenditures
------------- ----------------------------
<S> <C>
12/31/98 $295,000,000
12/31/99 $100,000,000
12/31/00 $ 85,000,000
12/31/01 $ 85,000,000
</TABLE>
The Capital Expenditures limitation in any year may be increased by an amount,
if any, equal to the Capital Expenditures limit for the previous year, less the
actual Capital Expenditures for such year.
Section 7.12 Stage Two -- Ratio of Operating Cash Flow to Cash Interest
Expense. The Borrower shall not
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permit the ratio, as of the end of any fiscal quarter ending after September 30,
2001, of its Operating Cash Flow for the two (2) fiscal quarter periods then
ended, to its Cash Interest Expense for such two (2) fiscal quarter periods, to
be less than 1.25:1.
Section 7.13 Stage Two -- Fixed Charge Coverage Ratio. The Borrower shall
not permit the Fixed Charge Coverage Ratio for any fiscal quarter ending after
September 30, 2001 to be less than 1.00:1.
Section 7.14 Stage Two -- Leverage Ratios. The Borrower shall not permit
the Leverage Ratio (Senior Debt) to exceed the ratio set forth below in column A
for any fiscal quarter ending after September 30, 2001 during the periods
indicated; nor shall the Borrower permit the Leverage Ratio (Total Debt) to
exceed the ratio set forth in column B for any fiscal quarter ending during the
periods indicated:
<TABLE>
<CAPTION>
A B
Senior Total
Period Debt Ratio Debt Ratio
------ ---------- ----------
<S> <C> <C>
December 31, 2001 10.00:1 13.00:1
March 31, 2002 9.00:1 11.50:1
June 30, 2002 8.00:1 10.50:1
September 30, 2002 7.00:1 9.00:1
December 31, 2002 6.50:1 8.50:1
March 31, 2003 6.00:1 8.00:1
June 30, 2003 5.50:1 7.50:1
September 30, 2003 5.00:1 7.00:1
December 31, 2003 and
Thereafter 4.00:1 6.00:1
</TABLE>
Section 7.15 Stage Two -- Annualized Operating Cash Flow to Pro Forma Debt
Service Ratio. The Borrower shall not permit the ratio of its Annualized
Operating Cash Flow to its Pro Forma Debt Service to be less than 1.00:1 for any
fiscal quarter ending after September 30, 2001.
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Section 7.16 Affiliate Transactions. Except as specifically provided herein
(including, without limitation, Section 7.6 (with respect to Investments in
Unrestricted Subsidiaries) and Section 7.7 hereof) and as may be described on
Schedule 8 attached hereto, the Borrower shall not, and shall cause each of its
Restricted Subsidiaries not to, at any time engage in any material transaction
with an Affiliate, or make an assignment or other transfer of any of its
properties or assets to any Affiliate, unless such transaction (i) is determined
by the board of directors of the Borrower or such Restricted Subsidiary to be in
the best interests of the Borrower or such Restricted Subsidiary, and (ii) such
transaction is on terms no less advantageous to the Borrower or such Restricted
Subsidiary than would be the case if such transaction had been effected with a
non-Affiliate.
Section 7.17 Real Estate. Neither the Borrower nor any of its Restricted
Subsidiaries shall purchase or become obligated to purchase any single parcel of
real estate having a purchase price in excess of $500,000 except in compliance
with Section 5.10 hereof.
Section 7.18 ERISA Liabilities. The Borrower shall not, and shall cause
each of its Subsidiaries not to, (i) permit the assets of any of their
respective Plans to be less than the amount necessary to provide all accrued
benefits under such Plans on an ongoing basis, or (ii) enter into any
Multiemployer Plan.
Section 7.19 New Unrestricted Subsidiaries. The Borrower shall not form any
direct Unrestricted Subsidiary of itself or any other Restricted Subsidiary
unless it shall cause all of the stock of such new Unrestricted Subsidiary to be
pledged to the Administrative Agent pursuant to the terms of the Borrower Pledge
Agreement or the Subsidiary Pledge Agreement, as additional Collateral for the
Obligations.
Section 7.20 Limitation on Preferred Stock of Restricted Subsidiaries. The
Borrower shall not permit any Restricted Subsidiary to create or issue any
preferred stock except for (a) preferred stock issued to and held by the
Borrower or any other Restricted Subsidiary, (b) preferred stock issued by a
Person prior to the time such Person became a direct or indirect Restricted
Subsidiary or (c) preferred stock issued by a Restricted Subsidiary, the
proceeds of which are used to refinance any outstanding preferred stock of such
Restricted Subsidiary, with an aggregate liquidation preference not to exceed
the
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liquidation preference of the preferred stock so refinanced, plus the amount of
any financing fees and other expenses incurred in connection with such
refinancing, and provided such refinancing preferred stock by its terms, or by
the terms of the agreement or instrument pursuant to which such a preferred
stock is issued, does not provide for payments of liquidation values at its
stated maturity or by way of a sinking fund or by way of any mandatory
redemption, defeasance, retirement or repurchase, prior to the stated maturity
of the preferred stock being refinanced.
Section 7.21 Limitation on Leases. Neither the Borrower nor any of its
Restricted Subsidiaries shall make or be or become obligated to make any payment
in respect of any obligation as lessee under any lease for property or equipment
having an unexpired term (including any renewal terms under options available to
the lessor) of more than five years (excluding any lease permitting cancellation
at the option of the lessee within sixty (60) days or less) unless, after giving
effect to the incurrence of such lease liability, the aggregate rental
obligations for periods commencing five years after the end of the most
recently- completed fiscal quarter for all such leases in any fiscal year does
not exceed the greater of $25,000,000, or ten percent (10%) of the total
revenues of the Borrower and its Restricted Subsidiaries for the prior fiscal
year.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement or any other
Loan Document shall prove to be incorrect or misleading in any material respect
when made or deemed to be made pursuant to Section 4.2 hereof;
(b) (i) The Borrower shall default in the payment of any principal amount
of the Notes, or (ii) the Borrower shall default in the payment of any interest,
fees or other amounts payable to the Lenders, the Administrative Agent, or any
of them, when due, and such Default shall not be cured by payment in full within
three (3) Business Days;
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(c) The Borrower shall default in the performance or observance of any
agreement or covenant contained in Article 7 hereof;
(d) The Borrower shall default in the performance or observance of any
other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such default shall not be cured
within a period of thirty (30) days from the date of occurrence of such default,
or, if later, the date on which an officer of the Borrower knew or should have
known of the occurrence of such default;
(e) There shall occur any default in the performance or observance of any
agreement or covenant or breach of any representation or warranty contained in
any of the Loan Documents (other than this Agreement or as otherwise provided in
this Section 8.1) by the Borrower, any of its Subsidiaries, VoiceStream or any
other obligor thereunder, which shall not be cured within a period of thirty
(30) days from the occurrence of such default, or, if later, the date on which
an officer of the Borrower knew or should have known of the occurrence of such
default;
(f) There shall be entered and remain unstayed a decree or order for relief
in respect of the Borrower or any of its Subsidiaries (other than any
Unrestricted Subsidiary which has no material assets or liabilities) under Title
11 of the United States Code as now constituted or hereafter amended, or any
other applicable Federal or state bankruptcy law or other similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
similar official of the Borrower or any of its Subsidiaries (other than any
Unrestricted Subsidiary which has no material assets or liabilities), or of any
substantial part of their respective properties, or ordering the winding-up or
liquidation of the affairs of the Borrower or any of its Subsidiaries (other
than any Unrestricted Subsidiary which has no material assets or liabilities);
or an involuntary petition shall be filed against the Borrower or any of its
Subsidiaries (other than any Unrestricted Subsidiary which has no material
assets or liabilities) and a temporary stay entered, and (i) such petition and
stay shall not be diligently contested, or (ii) such petition and stay shall
continue undismissed for a period of forty-five (45) consecutive days;
(g) The Borrower or any of its Subsidiaries (other than any Unrestricted
Subsidiary which is inactive) shall file a petition, answer or consent seeking
relief under
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Title 11 of the United States Code, as now constituted or hereafter amended, or
any other applicable Federal or state bankruptcy law or other similar law, or
the Borrower or any of its Subsidiaries (other than any Unrestricted Subsidiary
which has no material assets or liabilities) shall consent to the institution of
proceedings thereunder or to the filing of any such petition or shall seek or
consent to the appointment or taking of possession of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Borrower or any of its Subsidiaries (other than any Unrestricted Subsidiary
which has no material assets or liabilities), or of any substantial part of
their respective properties, or the Borrower or any its Subsidiaries (other than
any Unrestricted Subsidiary which has no material assets or liabilities) shall
fail generally to pay their respective debts as they become due, or the Borrower
or any of its Subsidiaries (other than any Unrestricted Subsidiary which has no
material assets or liabilities) shall take any action in furtherance of any such
action;
(h) A judgment shall be entered by any court against the Borrower or any of
its Subsidiaries for the payment of money which exceeds singly or in the
aggregate with other such judgments, $1,000,000, or a warrant of attachment or
execution or similar process shall be issued or levied against property of the
Borrower or any of its Subsidiaries which, together with all other such property
of the Borrower or any of its Subsidiaries subject to other such process,
exceeds in value $1,000,000 in the aggregate, and if, within thirty (30) days
after the entry, issue or levy thereof, such judgment, warrant or process shall
not have been paid or discharged or stayed pending appeal, or if, after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged;
(i) There shall be at any time any "accumulated funding deficiency," as
defined in ERISA or in Section 412 of the Code, with respect to any Plan
maintained by the Borrower or any of its Subsidiaries, or to which the Borrower
or any of its Subsidiaries has any liabilities, or any trust created thereunder;
or a trustee shall be appointed by a United States District Court to administer
any such Plan; or PBGC shall institute proceedings to terminate any such Plan;
or the Borrower or any of its Subsidiaries shall incur any liability to PBGC in
connection with the termination of any such Plan; or any Plan or trust created
under any Plan of the Borrower or any of its Subsidiaries shall engage in a
"prohibited transaction" (as such term is defined in Section 406 of ERISA or
Section 4975
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of the Code) which would subject any such Plan, any trust created thereunder,
any trustee or administrator thereof, or any party dealing with any such Plan or
trust to the tax or penalty in any material amount on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code and, in each case,
such event or condition, together with other such events or conditions, if any,
would subject the Borrower and its Subsidiaries to any tax, liability or penalty
in excess of $1,000,000;
(j) Any event shall occur which has a Materially Adverse Effect;
(k) There shall occur (i) any default under any Indebtedness of
VoiceStream, the Borrower or any of its Restricted Subsidiaries in an aggregate
principal amount exceeding $1,000,000 at maturity or which default allows the
holder of such Indebtedness to accelerate the maturity of such Indebtedness; or
(ii) any default under any Interest Hedge Agreement having a notional principal
amount of $1,000,000 or more; or (iii) an "Event of Default" shall occur,
resulting in the acceleration of obligations prior to their stated maturity,
under the Parent's Loan Agreement dated as of February 17, 1998, as amended, at
a time when the Parent owns, directly or indirectly, fifty-one percent (51%) or
more of VoiceStream's common equity;
(l) The FCC shall deliver to the Borrower or any of its Subsidiaries an
order to show cause why an order of revocation should not be issued based upon
any alleged attribution of alien ownership (within the meaning of 47 U.S.C.
Section 310(b) and any interpretation of the FCC thereunder) to the Borrower or
any of its Subsidiaries and such order shall not have been rescinded within
sixty (60) days after such delivery, with respect to any material License;
(m) One or more Licenses shall be terminated or revoked such that the
Borrower and its Restricted Subsidiaries are no longer able to operate the
related PCS System or any portion thereof and retain the revenue received
therefrom or any such License shall fail to be renewed at the stated expiration
thereof such that the Borrower and its Restricted Subsidiaries are no longer
able to operate the related PCS System or any portion thereof and retain the
revenue received therefrom, except in the event that the termination or
revocation is with respect to any License that is not material;
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(n) Any Security Document or any Note or any other Loan Document or any
material provision thereof shall at any time and for any reason be declared by a
court of competent jurisdiction to be null and void, or a proceeding shall be
commenced by VoiceStream or by the Borrower or any of its Subsidiaries, or by
any governmental authority having jurisdiction over VoiceStream or the Borrower
or any of its Subsidiaries, seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or VoiceStream or the Borrower or any of its Subsidiaries
shall deny that it has any liability or obligation for the payment of principal
or interest or other obligations purported to be created under any Loan
Document;
(o) Any Security Document shall for any reason fail or cease to create a
valid and first-priority Lien on or Security Interest in any material portion of
the Collateral purported to be covered thereby, subject to any Permitted Lien,
or any such Lien or Security Interest shall cease to be perfected, except if
such failure results from the Administrative Agent's failure to file any UCC-3
continuation statement in the appropriate jurisdiction; or
(p) (i) John Stanton ceases, for any reason, to serve as Chairman of
VoiceStream and a successor Chairman acceptable to the Majority Lenders is not
appointed or does not commence to serve within sixty (60) days from the date Mr.
Stanton ceases to serve as Chairman, or (ii) there shall be a Change of Control,
together with the affirmative vote of the Majority Lenders that such Change in
Control, together with any results thereof, constitutes an Event of Default.
Section 8.2 Remedies.
(a) If an Event of Default specified in Section 8.1 (other than an Event of
Default under Section 8.1(f) or Section 8.1(g)) shall have occurred and shall be
continuing, the Administrative Agent, at the request of the Majority Lenders,
shall formally declare that an Event of Default has occurred and (i) terminate
the Revolving Loan Commitment and (ii) declare the principal of and interest on
the Loans and the Notes and all other amounts owed to the Lenders and the
Administrative Agent under this Agreement and the Notes and any other
Obligations to be forthwith due and payable without presentment, demand, protest
or notice of any kind, all of which are hereby expressly waived, anything in
this Agreement or in the Notes or any other Loan Document to the contrary
notwithstanding, and the Revolving Loan Commitment
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and the Tranche A Term Loan Commitment shall thereupon forthwith terminate and
all such amounts shall be immediately due and payable.
(b) Upon the occurrence and continuance of an Event of Default specified in
Section 8.1(f) or Section 8.1(g), all principal, interest and other amounts due
hereunder and under the Notes, and all other Obligations, shall thereupon and
concurrently therewith become due and payable and the Revolving Loan Commitment
and the Tranche A Term Loan Commitment shall forthwith terminate and the
principal amount of the Loans outstanding hereunder shall bear interest at the
Default Rate, all without any action by the Administrative Agent, the Lenders or
the Majority Lenders or any of them and without presentment, demand, protest or
other notice of any kind, all of which are expressly waived, anything in this
Agreement or in the other Loan Documents to the contrary notwithstanding.
(c) Upon acceleration of the Notes, as provided in subsection (a) or (b) of
this Section 8.2, the Administrative Agent and the Lenders shall have all of the
post-default rights granted to them, or any of them, under the Loan Documents
and under Applicable Law.
(d) Upon acceleration of the Notes, as provided in subsection (a) or (b) of
this Section 8.2, the Administrative Agent, upon request of the Majority
Lenders, shall have the right to the appointment of a receiver for the
properties and assets of the Borrower and its Restricted Subsidiaries, both to
operate and to sell such properties and assets, and the Borrower, for itself and
on behalf of its Restricted Subsidiaries, hereby consents to such right and such
appointment and hereby waives any objection the Borrower or any Restricted
Subsidiary may have thereto or the right to have a bond or other security posted
by the Administrative Agent on behalf of the Lenders, in connection therewith.
The rights of the Administrative Agent under this Section 8.2(d) shall be
subject to its prior compliance with the Communications Act and the FCC rules
and policies promulgated thereunder to the extent applicable to the exercise of
such rights.
(e) The rights and remedies of the Administrative Agent and the Lenders
hereunder shall be cumulative and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments
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under this Agreement made to any of the Administrative Agent, the Lenders or
otherwise received by any of such Persons (from realization on Collateral for
the Obligations or otherwise) shall be paid over to the Administrative Agent (if
necessary) and distributed by the Administrative Agent as follows: first, to the
reasonable costs and expenses, if any, incurred in connection with the
collection of such payment or prepayment including, without limitation, any
reasonable costs incurred by any of them in connection with the sale or
disposition of any Collateral for the Obligations; second, to the Lenders and
the Administrative Agent for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to the Lenders pro rata on the basis of
their respective unpaid principal amounts (except as provided in Section
2.2(f)), to the payment of any unpaid interest which may have accrued on the
Obligations; fourth, to the Lenders pro rata until all Advances have been paid
in full (and, for purposes of this clause, obligations under Interest Hedge
Agreements with the Lenders or any of them shall be deemed to be Advances and
shall be paid on a pro rata basis with the Advances); fifth, to the Lenders pro
rata on the basis of their respective unpaid amounts, to the payment of any
other unpaid Obligations; sixth, to damages incurred by the Administrative Agent
or any Lender by reason of any breach hereof or of any other Loan Document; and
seventh, upon satisfaction in full of all Obligations, to the Borrower or as
otherwise required by law. Notwithstanding the foregoing, each Lender may
allocate amounts received by it pursuant to this Section 8.3 in its discretion
to the various Obligations held by it.
ARTICLE 9
The Administrative Agent
Section 9.1 Appointment and Authorization. Each Lender hereby irrevocably
appoints and authorizes, and hereby agrees that it will require any transferee
of any of its interest in its Loan and in its Note irrevocably to appoint and
authorize, the Administrative Agent to take such actions as its agent on its
behalf and to exercise such powers hereunder and under the Security Documents as
are delegated by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. Neither the Administrative Agent nor any of its
respective directors, officers, employees or agents shall be liable for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
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Section 9.2 Interest Holders. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed with the
Administrative Agent, whether under Section 11.1, Section 11.5, or otherwise
hereunder, as the holder of all of the interests of such Lender in its Loan and
in its Note or Notes until written notice of transfer, signed by such Lender (or
the Person designated in the last notice filed with the Administrative Agent)
and by the Person designated in such written notice of transfer, in form and
substance satisfactory to the Administrative Agent, shall have been filed with
the Administrative Agent.
Section 9.3 Consultation with Counsel. The Administrative Agent may consult
with Paul, Hastings, Janofsky & Walker LLP, Atlanta, Georgia, special counsel to
the Administrative Agent, or with other legal counsel selected by it with due
care and shall not be liable for any action taken or suffered by it in good
faith in consultation with such counsel or at the direction of the Majority
Lenders and in reasonable reliance on such consultations or direction.
Section 9.4 Documents. The Administrative Agent shall be under no duty to
examine, inquire into, or pass upon the validity, effectiveness or genuineness
of this Agreement, any Note, any other Loan Document, or any other instrument,
document or communication furnished pursuant hereto or in connection herewith,
and the Administrative Agent shall be entitled to assume (absent knowledge to
the contrary) that they are valid, effective and genuine, have been signed or
sent by the proper parties and are what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Revolving Loan Commitment and its Loans, Toronto Dominion (Texas), Inc. shall
have the same rights and powers hereunder and under the other Loan Documents as
any other Lender and Affiliates of the Administrative Agent may accept deposits
from, lend money to and generally engage in any kind of business with the
Borrower, any of its Subsidiaries or any Affiliates of, or Persons doing
business with, the Borrower, as if they were not affiliated with the
Administrative Agent and without any obligation to account therefor.
Section 9.6 Responsibility of the Administrative Agent. The duties and
obligations of the Administrative Agent under this Agreement and the Security
Documents are only those expressly set forth in this Agreement and the Security
Documents. The Administrative Agent shall be
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entitled to assume that no Default has occurred and is continuing unless it has
actual knowledge, or has been notified by the Borrower, of such fact, or has
been notified by a Lender in writing that such Lender considers that a Default
has occurred and is continuing, and such Lender shall specify in detail the
nature thereof in writing. The Administrative Agent shall not be liable
hereunder for any action taken or omitted to be taken except for its own gross
negligence or willful misconduct. The Administrative Agent shall provide
promptly each Lender with copies of such documents received from the Borrower as
such Lender may reasonably request.
Section 9.7 Security Documents. The Administrative Agent, as collateral
agent hereunder and under the Security Documents, is hereby authorized to act on
behalf of the Lenders, in its own capacity and through other agents and
sub-agents appointed by it with due care, under the Security Documents, provided
that the Administrative Agent shall not agree to the release of any Collateral,
or any property encumbered by any mortgage, pledge or security interests except
in compliance with Section 11.12 hereof. In connection with its role as secured
party with respect to the Collateral hereunder, the Administrative Agent shall
act as collateral agent, for itself and for the ratable benefit of the Lenders,
and such role as administrative agent shall be disclosed on all appropriate
accounts, certificates, filings, mortgages, and other Collateral documentation.
Section 9.8 Action by the Administrative Agent.
(a) The Administrative Agent shall be entitled to use its discretion with
respect to exercising or refraining from exercising any rights which may be
vested in it by, and with respect to taking or refraining from taking any action
or actions which it may be able to take under or in respect of, this Agreement,
unless the Administrative Agent shall have been instructed by the Majority
Lenders to exercise or refrain from exercising such rights or to take or refrain
from taking such action; provided that the Administrative Agent shall not
exercise any rights under Section 8.2(a) of this Agreement except upon the
request of the Majority Lenders or of all the Lenders, where expressly required
by this Agreement. The Administrative Agent shall incur no liability under or in
respect of this Agreement with respect to anything which it may do or refrain
from doing in the reasonable exercise of its judgment or which may seem to it to
be necessary or desirable in the circumstances for the protection of the
interests of the Lenders, except for its gross negligence or willful misconduct,
or conduct in breach
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of this Agreement as determined by a final, non-appealable order of a court
having jurisdiction over the subject matter.
(b) The Administrative Agent shall not be liable to the Lenders or to any
Lender in acting or refraining from acting under this Agreement or any other
Loan Document in accordance with the instructions of the Majority Lenders or of
all the Lenders, where expressly required by this Agreement, and any action
taken or failure to act pursuant to such instructions shall be binding on all
Lenders.
Section 9.9 Notice of Default or Event of Default. In the event that the
Administrative Agent or any Lender shall acquire actual knowledge, or shall have
been notified, of any Default (other than through a notice by one party hereto
to all other parties), the Administrative Agent or such Lender shall promptly
notify the Administrative Agent, and the Administrative Agent shall take such
action and assert such rights under this Agreement and the other Loan Documents
as the Majority Lenders or of all the Lenders, where expressly required by this
Agreement, shall request in writing, and the Administrative Agent shall not be
subject to any liability by reason of its acting pursuant to any such request.
If the Majority Lenders shall fail to request the Administrative Agent to take
action or to assert rights under this Agreement in respect of any Default within
ten (10) days after their receipt of the notice of any Default from the
Administrative Agent or any Lender, or shall request inconsistent action with
respect to such Default, the Administrative Agent may, but shall not be required
to, take such action and assert such rights (other than rights under Article 8
hereof) as it deems in its discretion to be advisable for the protection of the
Lenders, except that, if the Majority Lenders have instructed the Administrative
Agent not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions.
Section 9.10 Responsibility Disclaimed. The Administrative Agent shall not
be under any liability or responsibility whatsoever as Administrative Agent:
(a) To the Borrower or any other Person as a consequence of any failure or
delay in performance by or any breach by, any Lender or Lenders of any of its or
their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any failure or delay in
performance by, or any breach by, (i)
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the Borrower of any of its obligations under this Agreement or the Notes or any
other Loan Document, or (ii) any Subsidiary of the Borrower or any other obligor
under any other Loan Document; or
(c) To any Lender or Lenders, for any statements, representations or
warranties in this Agreement, or any other document contemplated by this
Agreement or any other Loan Document, or any information provided pursuant to
this Agreement, any other Loan Document, or any other document contemplated by
this Agreement, or for the validity, effectiveness, enforceability or
sufficiency of this Agreement, the Notes, any other Loan Document, or any other
document contemplated by this Agreement.
Section 9.11 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their percentage of the outstanding principal amount of the Loans
and their Commitments from and against any and all liabilities, obligations,
losses (other than in the event of a bankruptcy or out-of-court 'work-out' of
the Loans), damages, penalties, actions, judgments, suits, costs, expenses
(including reasonable fees and expenses of experts, agents, consultants and
counsel), or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of its role as Administrative Agent under this Agreement, any
other Loan Document, or any other document contemplated by this Agreement or any
action taken or omitted by the Administrative Agent under this Agreement, any
other Loan Document, or any other document contemplated by this Agreement in its
role as Administrative Agent, except that no Lender shall be liable to the
Administrative Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements
resulting from the gross negligence or willful misconduct of the Administrative
Agent as determined by a final, non-appealable order of a court having
jurisdiction over the subject matter.
Section 9.12 Credit Decision. Each Lender represents and warrants to each
other Lender, to each Managing Agent, and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement and to make its
Advances it has independently taken whatever steps it considers necessary to
evaluate the financial condition and affairs of the Borrower and its
Subsidiaries and that it has made an independent credit
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judgment, and that it has not relied upon the Administrative Agent, any Managing
Agent, or any other Lender, or information provided by the Administrative Agent
(other than information provided to the Administrative Agent by the Borrower and
forwarded by the Administrative Agent to the Lenders); and
(b) So long as any portion of the Obligations remains outstanding, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrower.
Section 9.13 Successor Administrative Agent.
(a) Resignation. Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower. Upon
any such resignation, the Majority Lenders shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent
gives notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be
any Lender or a commercial bank organized under the laws of the United States of
America or any political subdivision thereof which has combined capital and
reserves in excess of $250,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges, duties and obligations of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article shall continue in effect for its benefit in respect of any actions taken
or omitted to be taken by it while it was acting as the Administrative Agent.
The resignation of the Administrative Agent may not take effect until a
successor Administrative Agent is appointed.
(b) Removal. The Administrative Agent may be removed as Administrative
Agent hereunder at any time by written notice given to it by Lenders holding not
less than sixty-six and two-thirds percent (66-2/3%) of the sum of the Revolving
Loan Commitment plus outstanding principal balance of the Term Loans. Upon any
such removal, such Lenders
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shall have the right to appoint a successor Administrative Agent, subject, at
any such time as there is no Default hereunder, to the prior written consent of
the Borrower, such consent not to be unreasonably withheld or delayed. Any such
successor Administrative Agent may be any Lender or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties and obligations of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article shall continue in effect
for its benefit in respect of any actions taken or to be taken by it while it
was acting as the Administrative Agent.
Section 9.14 Delegation of Duties. The Administrative Agent may execute any
of its respective duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care, and shall be entitled to advice
of counsel concerning all matters pertaining to such duties.
Section 9.15 Co-Agents; Managing Agents. None of the Lenders identified on
the facing page of, signature pages of or elsewhere in this Agreement as a
"co-agent" or "managing agent" shall have any right, power, obligation,
liability, responsibility or duty under this Agreement or any other Loan
Document other than those applicable to all Lenders as such. Without limiting
the foregoing, none of the Lenders so identified shall have or be deemed to have
any fiduciary relationship with any other Lender. Each Lender acknowledges that
it has not relied, and will not rely, on any of the Lenders so identified in
deciding to enter into this Agreement or any other Loan Document or in taking or
not taking action hereunder or thereunder.
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ARTICLE 10
Change in Circumstances
Affecting Eurodollar Advances
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair. If with
respect to any proposed Eurodollar Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in Dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make Eurodollar Advances shall be suspended.
Section 10.2 Illegality. If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender to make, maintain or fund Eurodollar Advances, such
Lender shall so notify the Administrative Agent, and the Administrative Agent
shall forthwith give notice thereof to the other Lenders and the Borrower.
Before giving any notice to the Administrative Agent pursuant to this Section
10.2, such Lender shall designate a different lending office if such designation
will avoid the need for giving such notice and will not, in the sole judgment of
such Lender, be otherwise materially disadvantageous to such Lender. Upon
receipt of such notice, notwithstanding anything contained in Article 2 hereof,
the Borrower shall repay in full the then outstanding principal amount of each
Eurodollar Advance of such Lender, together with accrued interest thereon and
any reimbursement required under Section 2.11 hereof, on either (a) the last day
of the then current Interest Period applicable to such affected Eurodollar
Advances if such Lender may lawfully continue to maintain and fund such
Eurodollar Advances to such day or (b) immediately if such Lender may not
lawfully continue to fund and maintain such affected Eurodollar Advances to such
day. Concurrently with repaying each affected Eurodollar Advance of such Lender,
notwithstanding anything contained in Article 2 or Article 3
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hereof, the Borrower may borrow a Base Rate Advance from such Lender, and such
Lender shall make such Advance, if so requested, in an amount such that the
outstanding principal amount of the Note held by such Lender shall equal the
outstanding principal amount of such Note immediately prior to such repayment.
Section 10.3 Increased Costs.
(a) If after the date hereof, the adoption of any Applicable Law, or any
change in any Applicable Law (whether adopted before or after the Agreement
Date), or any interpretation or change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency:
(1) shall subject any Lender to any tax, duty or other charge with
respect to its obligation to make Eurodollar Advances, or shall change the
basis of taxation of payments to any Lender of the principal of or interest
on its Eurodollar Advances or in respect of any other amounts due under
this Agreement, in respect of its Eurodollar Advances or its obligation to
make Eurodollar Advances (except for changes in the rate or method of
calculation of tax on the overall net income of such Lender); or
(2) shall impose, modify or deem applicable any reserve (including,
without limitation, any imposed by the Board of Governors of the Federal
Reserve System, but excluding any included in an applicable Eurodollar
Reserve Percentage or Domestic Reserve Percentage), special deposit,
capital adequacy, assessment or other requirement or condition against
assets of, deposits with or for the account of, or commitments or credit
extended by, any Lender or shall impose on any Lender or the London
interbank borrowing market or the New York certificate of deposit market
any other condition affecting its obligation to make Eurodollar Advances or
its Eurodollar Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any such Eurodollar Advances, or to reduce the amount of
any sum received or receivable by such Lender under this Agreement or under its
Note with respect thereto, then, within five (5) days after demand by such
Lender, the Borrower agrees to
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pay to such Lender such additional amount or amounts as will compensate such
Lender for such increased costs. Each Lender will promptly notify the Borrower
and the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation pursuant
to this Section 10.3 and will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Lender, be otherwise disadvantageous
to such Lender.
(b) Any Lender claiming compensation under this Section 10.3 shall provide
the Borrower with a written certificate setting forth the additional amount or
amounts to be paid to it hereunder and calculations therefor in reasonable
detail. Such certificate shall be presumptively correct, absent manifest error.
In determining such amount, such Lender may use any reasonable averaging and
attribution methods. If any Lender demands compensation under this Section 10.3,
the Borrower may at any time, upon at least five (5) Business Days' prior notice
to such Lender, prepay in full the then outstanding Eurodollar Advances of such
Lender, together with accrued interest thereon to the date of prepayment, along
with any reimbursement required under Section 2.11 hereof. Concurrently with
prepaying such Eurodollar Advances, the Borrower may borrow a Base Rate Advance
from such Lender, and such Lender shall, if so requested, make such Advance in
an amount such that the outstanding principal amount of the Note held by such
Lender shall equal the outstanding principal amount of such Note immediately
prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given pursuant to
Section 10.1, 10.2 or 10.3 suspending the obligation of any Lender to make
Eurodollar Advances, or requiring Eurodollar Advances of any Lender to be repaid
or prepaid, then, unless and until such Lender notifies the Borrower that the
circumstances giving rise to such repayment no longer apply, all Advances which
would otherwise be made by such Lender as Eurodollar Advances affected shall, at
the option of the Borrower, be made instead as Base Rate Advances or the
unaffected type of Eurodollar Advances.
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ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) Unless otherwise specifically provided herein, all notices and other
communications under this Agreement shall be in writing and shall be deemed to
have been given three (3) days after deposit in the mail, designated as
certified mail, return receipt requested, postage-prepaid, or one (1) Business
Day after being entrusted to a reputable commercial overnight delivery service,
or when sent by telecopy addressed to the party to which such notice is directed
at its address determined as provided in this Section 11.1, except that notices
under Article 2 shall be effective only upon receipt. All notices and other
communications under this Agreement shall be given to the parties hereto at the
following addresses:
(i) If to the Borrower, to it at:
Western PCS Holding Corporation
3650 131st Avenue, SE
Bellevue, Washington 98006
Attn: John Stanton
Chairman and Chief Executive Officer
with a copy to:
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, New York 10112
Attn: Barry A. Adelman, Esq.
and to:
Alan R. Bender, Esq.
General Counsel
3650 131st Avenue, SE
Suite 400
Bellevue, Washington 98006
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
909 Fannin, Suite 900
Houston, Texas 77010
Attn: Manager, Agency
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with a copy to:
TD Securities (USA) Inc.
31 West 52nd Street
New York, New York 10019-6101
Attn: Managing Director,
Communications Finance
and to:
Paul, Hastings, Janofsky & Walker LLP
600 Peachtree Street, Suite 2400
Atlanta, Georgia 30308-2222
Attn: Kevin Conboy, Esq.
(iii) If to the Managing Agents, the Agents, the Co-Agents, or the
Lenders, to them at the addresses set forth beside their names on
Schedule 1.
Copies shall be provided to Persons other than parties hereto only in the case
of notices under Article 8 hereof.
(b) Any party hereto may change the address to which notices shall be
directed under this Section 11.1 by giving ten (10) days' written notice of such
change to the other parties.
Section 11.2 Expenses. The Borrower will promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the Administrative Agent in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, and the transactions contemplated
hereunder and thereunder and the making of the initial Advance hereunder
(whether or not such Advance is made), including, but not limited to, the fees
and disbursements of Paul, Hastings, Janofsky & Walker LLP, special counsel for
the Administrative Agent and its Affiliates;
(b) all reasonable out-of-pocket expenses of the Administrative Agent in
connection with the administration of the transactions contemplated in this
Agreement or the other Loan Documents, the restructuring and "work out" of such
transactions, and the preparation, negotiation, execution and delivery of any
waiver, amendment or consent by the Administrative Agent and the Lenders
relating to this Agreement or the other Loan Documents, including, but not
limited to, the fees and disbursements of any experts,
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agents or consultants and of special counsel for the Administrative Agent, but
excluding any assignment fee pursuant to Section 11.5(b) hereof; and
(c) all out-of-pocket costs and expenses of obtaining performance under
this Agreement or the other Loan Documents and all out-of-pocket costs and
expenses of collection if an Event of Default occurs in the payment of the
Notes, which in each case shall include reasonable fees and out-of-pocket
expenses of special counsel for the Administrative Agent.
Section 11.3 Waivers. The rights and remedies of the Administrative Agent
and the Lenders under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent or the Lenders,
or any of them, in exercising any right, shall operate as a waiver of such
right. The Administrative Agent and the Lenders expressly reserve the right to
require strict compliance with the terms of this Agreement in connection with
any future funding of a request for an Advance. In the event the Lenders decide
to fund an Advance at a time when the Borrower is not in strict compliance with
the terms of this Agreement, such decision by the Lenders shall not be deemed to
constitute an undertaking by the Lenders to fund any further Advances or
preclude the Lenders and the Administrative Agent from exercising any rights
available under the Loan Documents or at law or equity. Any waiver or indulgence
granted by the Administrative Agent, the Lenders or the Majority Lenders shall
not constitute a modification of this Agreement, except to the extent expressly
provided in such waiver or indulgence, or constitute a course of dealing at
variance with the terms of this Agreement such as to require further notice of
their intent to require strict adherence to the terms of this Agreement in the
future.
Section 11.4 Set-Off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the
Administrative Agent and the Lenders are hereby authorized by the Borrower at
any time or from time to time, without notice to the Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Lender or the
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Administrative Agent to or for the credit or the account of the Borrower or any
of its Restricted Subsidiaries against and on account of the Obligations
irrespective of whether (a) any Lender or the Administrative Agent shall have
made any demand hereunder or (b) the Administrative Agent shall have declared
the principal of and interest on the Loans and other amounts due hereunder to be
due and payable as permitted by Section 8.2 and although such Obligations or any
of them, shall be contingent or unmatured. Upon direction by the Administrative
Agent with the consent of the Majority Lenders, each Lender holding deposits of
the Borrower or any of its Restricted Subsidiaries shall exercise its set-off
rights as so directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder without the prior written consent of each of the Lenders.
(b) Each Lender may enter freely into participation agreements with respect
to or otherwise grant participations in its Loans to one or more banks or other
lenders or financial institutions; provided, however, that (i) such Lender's
obligations hereunder shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall not be entitled by the benefit of its
participation to vote or otherwise take action under this Agreement or any other
Loan Document, except with respect to the matters referred to in items (a), (b),
(c), (d), (e), (f) and (g) of Section 11.12 hereof, and (iv) the Borrower
(unless there exists at the time of such participation an Event of Default
hereunder) shall have the right to consent to a proposed participant (such
consent not to be unreasonably withheld or delayed) and shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations hereunder. In addition, each Lender may (x) sell or assign up to one
hundred percent (100%) of its rights hereunder and under the other Loan
Documents to any Federal Reserve Bank without limitation; and (y) sell or assign
up to one hundred percent (100%) of its rights hereunder and under the other
Loan Documents to any other Person on an assignment basis, provided that (A) (i)
such assignment is to an Affiliate of the assignor, an Approved Fund, another
Lender, or any Person shown as of the Agreement Date on Schedule 1 as an
Approved Fund, or (ii) the Borrower (unless there exists at the time of such
assignment an Event of Default hereunder) and the Administrative Agent have
given their prior written
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consent to the proposed assignee of a Lender hereunder, which consents shall not
be unreasonably delayed or withheld, provided that such consents may be
reasonably withheld if the proposed assignee is subject to withholding tax of
the sort referred to in Section 2.14 hereof, (B) the assignee assumes a pro rata
share of the assignor Lender's obligations hereunder determined by the
percentage of the Revolving Loan Commitment or the appropriate Term Loan
assigned, as applicable, for the period from the date of the assignment through
the Revolving Loan Maturity Date with respect to an assignment of a Revolving
Loan Commitment or a Tranche A Term Loan, or the Final Maturity Date with
respect to an assignment of a Tranche B Term Loan, and (C) each such assignment
shall be in a principal amount of not less than the lesser of the entire amount
of such Lender's interest hereunder or $5,000,000, unless an assignment is from
one Lender to another, or to an Affiliate of another Lender, or to an Approved
Fund, in which case there shall be no minimum assignment amount. Each Lender who
sells or assigns a portion of its Loans pursuant hereto shall pay to the
Administrative Agent an assignment fee of $3,500 with respect to each
assignment, such fee to be paid to the Administrative Agent not later than the
effective date of the assignment of the Loan relating thereto; provided however,
that no such fee shall be payable in the case of an assignment to another
Lender, an Affiliate of a Lender or an Approved Fund; and provided, further
that, in the case of contemporaneous assignments by a Lender to more than one
fund managed by the same investment advisor (which funds are not then Lenders
hereunder), only a single such $3,500 fee shall be payable for all such
contemporaneous assignments. Each Lender agrees to provide the Administrative
Agent, the Arranging Agents, and the Borrower with written notice of the
assignment of all or part of its rights hereunder, and the Administrative Agent
shall keep a record of all such assignments in order to be able to calculate the
Commitment Ratios of the Lenders as of any time. All assignments by any of the
Lenders of any interests hereunder shall be made pursuant to an Assignment and
Assumption Agreement substantially in the form attached hereto as Exhibit R.
Each Lender may provide any proposed participant or assignee with confidential
information provided to such Lender regarding the Borrower and its Subsidiaries
on a confidential basis, and such participant or assignee shall agree to
maintain such confidentiality. Further, each permitted assignee of any portion
of the Loans shall be entitled to the benefits of Sections 2.11 and 2.13 and
Article 10 hereof and all other provisions hereof and of the other Loan
Documents as a 'Lender' hereunder.
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(c) Except as specifically set forth in Section 11.5(b) hereof, nothing in
this Agreement or the Notes, expressed or implied, is intended to or shall
confer on any Person other than the respective parties hereto and thereto and
their successors and assignees permitted hereunder and thereunder any benefit or
any legal or equitable right, remedy or other claim under this Agreement or the
Notes.
(d) The provisions of this Section 11.5 shall not apply to any purchase of
participations among the Lenders pursuant to Section 2.12 hereof.
Section 11.6 Accounting Principles.
(a) Except as set forth in the following sentence, references in this
Agreement to GAAP shall be to such principles as in effect from time to time,
and all accounting terms used herein without definition shall be used as defined
under GAAP. All references to Operating Cash Flow, Total Debt, Fixed Charges,
Debt Service, and other such terms shall be deemed to refer to such items of the
Borrower and its Restricted Subsidiaries on a consolidated basis, consistently
applied, unless otherwise indicated herein.
(b) With respect to any determination of whether the Borrower shall be
permitted to make an Investment, Acquisition, Restricted Payment, or the like,
which determination depends upon whether the Borrower's aggregate amount of such
aforementioned items equals or exceeds a sum, one of whose constituents is
Available Equity or proceeds of Subordinated Debt, the Available Equity or
proceeds of Subordinated Debt used for such determination may not be
double-counted.
Section 11.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Governing Law. This Agreement and the Notes shall be construed
in accordance with and governed by the internal laws of the State of New York
applicable to agreements made and to be performed in New York. If any action or
proceeding shall be brought by the Administrative Agent or any Lender in order
to enforce any right or remedy under this Agreement or under any Note, the
Borrower hereby consents and will, and the Borrower will cause each
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Subsidiary to, submit to the jurisdiction of any state or federal court of
competent jurisdiction sitting within the area comprising the Southern District
of New York on the date of this Agreement. The Borrower, for itself and on
behalf of its Subsidiaries, hereby agrees that service of the summons and
complaint and all other process which may be served in any such suit, action or
proceeding may be effected by mailing by registered mail a copy of such process
to the offices of the Borrower at the address given in Section 11.1 hereof and
that personal service of process shall not be required. Nothing herein shall be
construed to prohibit service of process by any other method permitted by law or
the bringing of any suit, action or proceeding in any other jurisdiction. The
Borrower agrees that final judgment in such suit, action or proceeding shall be
conclusive and may be enforced in any other jurisdiction by suit on the judgment
or in any other manner provided by Applicable Law.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable hereunder or
under the Notes exceed the maximum rate of interest allowed by Applicable Law,
and in the event any such payment is inadvertently made by the Borrower or
inadvertently received by any Lender, then such excess sum shall be credited as
a payment of principal, unless the Borrower shall notify the Administrative
Agent or such Lender in writing that it elects to have such excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Lenders not receive, directly or indirectly in any manner whatsoever, interest
in excess of that which may legally be paid by the Borrower under Applicable
Law.
(b) Notwithstanding the use by the Lenders of the Base Rate, the Federal
Funds Rate, and the Eurodollar Rate as reference rates for the determination of
interest on the Loans, the Lenders shall be under no obligation to obtain funds
from any particular source in order to charge interest to the Borrower at
interest rates related to such reference rates.
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Section 11.11 Table of Contents and Headings. The Table of Contents and the
headings of the various subdivisions used in this Agreement are for convenience
only and shall not in any way modify or amend any of the terms or provisions
hereof, nor be used in connection with the interpretation of any provision
hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any other
Loan Document (other than Interest Hedge Agreements) nor any term hereof or
thereof may be amended orally, nor may any provision hereof or thereof be waived
orally but only by an instrument in writing signed by (or, in the case of
Security Documents executed by the Administrative Agent for itself and on behalf
of the Lenders, signed by the Administrative Agent and approved by) the Majority
Lenders and, in the case of an amendment, by the Borrower, except that in the
event of (a) any increase in the amount of the Revolving Loan Commitment, (b)
any delay or extension in the terms of repayment or change in the order of
application of repayment of the Loans provided in Section 2.4 or Section 2.8
hereof, (c) any reduction in principal, interest or fees due hereunder or
postponement of the payment thereof, (d) any release of any substantial portion
of the Collateral for the Loans other than in connection with a sale or
disposition otherwise permitted hereunder, or any failure to take Collateral to
which the Lenders are otherwise entitled pursuant to Section 5.13 or 5.14
hereof, (e) any waiver of any Default due to the failure by the Borrower to pay
any sum due to any of the Lenders hereunder, (f) any release of any Guaranty (or
any guarantor thereunder) of all or any portion of the Obligations, except in
connection with a merger, sale or other disposition otherwise permitted
hereunder, or (g) any amendment of this Section 11.12, or of the definition of
Majority Lenders, or of any portion of Sections 2.10, 2.12, 5.11 or Article 10
as they relate to the relative priority of payment among the Obligations, or any
other provision of this Agreement or any of the other Loan Documents
specifically requiring the consent or approval of each of the Lenders, any
amendment or waiver or consent may be made only by an instrument in writing
signed by (or, in the case of Security Documents executed by the Administrative
Agent for itself and on behalf of the Lenders, signed by the Administrative
Agent and approved by) each of the Lenders and, in the case of an amendment, by
the Borrower. Any amendment to any provision hereunder governing the rights,
obligations, or liabilities of the Administrative Agent in its capacity as such,
may be made only by an instrument in writing signed by the Administrative Agent
and by each of the Lenders.
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Section 11.13 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of the
Administrative Agent or its Affiliates and each Lender or its respective
Affiliates to enter into or maintain business relationships with the Borrower or
any of its Affiliates beyond the relationships specifically contemplated by this
Agreement and the other Loan Documents.
Section 11.15 Directly or Indirectly. If any provision in this Agreement
refers to any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
Section 11.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by the Administrative Agent and each of the Lenders notwithstanding
any investigation heretofore or hereafter made by them, and (ii) shall survive
the execution and delivery of the Notes and shall continue in full force and
effect so long as any Note is outstanding and unpaid. Any right to
indemnification hereunder, including, without limitation, rights pursuant to
Sections 2.11, 2.13, 5.11, 9.11, 10.3 and 11.2 hereof, shall survive the
termination of this Agreement and the payment and performance of all other
Obligations.
Section 11.17 Senior Debt. The Indebtedness of the Borrower evidenced by
the Notes is secured by the Security Documents and is intended by the parties
hereto to be in parity with the Interest Hedge Agreements in effect from time to
time between the Borrower and any Lender and senior in right of payment to all
other Indebtedness for Money Borrowed of the Borrower.
Section 11.18 Obligations Several. The obligations of the Administrative
Agent and each of the Lenders hereunder are several, not joint.
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Section 11.19 Confidentiality. The Lenders shall hold all non-public,
proprietary or confidential information (which has been identified as such by
the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking and investment
practices; however, the Lenders may make disclosure of any such information to
their examiners, Affiliates, internal and outside auditors, counsel,
consultants, appraisers and other professional advisors in connection with this
Agreement or as reasonably required by any proposed syndicate member or any
proposed transferee or participant in connection with the contemplated transfer
of any Note or participation therein or as required or requested by any
governmental authority or representative thereof or in connection with the
enforcement hereof or of any Loan Document or related document or pursuant to
legal process or with respect to any litigation between or among the Borrower
and any of the Lenders. In no event shall any Lender be obligated or required to
return any materials furnished to it by the Borrower. In addition, the Lenders
may make disclosure of such information to any direct or indirect contractual
counterparty in swap agreements or such contractual counterparty's professional
advisors (so long as such contractual counterparty or professional advisors to
such contractual counterparty agrees to be bound by the provisions of this
Section 11.19). The foregoing provisions shall not apply to a Lender with
respect to information that (i) is or becomes generally available to the public
(other than through a breach of this Section 11.19 by such Lender), (ii) is
already in the possession of such Lender on a nonconfidential basis, or (iii)
comes into the possession of or is independently developed by such Lender in a
manner not known to such Lender to involve a breach of a duty of confidentiality
owing to the Borrower.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR ITSELF AND ON BEHALF
OF ITS SUBSIDIARIES, AND THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS,
HEREBY AGREE TO WAIVE AND HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT
AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE BORROWER, ANY OF THE
BORROWER'S SUBSIDIARIES, ANY OF THE LENDERS, OR THE ADMINISTRATIVE AGENT, OR ANY
OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, IS A PARTY, AS TO ALL MATTERS AND
THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF
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THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first appearing above.
BORROWER: WESTERN PCS HOLDING CORPORATION, A
DELAWARE CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
Attest:__________________________________
Name:_________________________________
Title:________________________________
ADMINISTRATIVE
AGENT: TORONTO DOMINION (TEXAS), INC.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 1
<PAGE> 108
ARRANGING AGENTS: TD SECURITIES (USA) INC.
By:______________________________________
Name:_________________________________
Title:________________________________
NATIONSBANC MONTGOMERY SECURITIES LLC
By:______________________________________
Name:_________________________________
Title:________________________________
BARCLAYS CAPITAL
By:______________________________________
Name:_________________________________
Title:________________________________
J.P. MORGAN SECURITIES INC.
By:______________________________________
Name:_________________________________
Title:________________________________
CHASE SECURITIES INC.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 2
<PAGE> 109
DOCUMENTATION
AGENT: J.P. MORGAN SECURITIES INC.
By:______________________________________
Name:_________________________________
Title:________________________________
CO-SYNDICATION
AGENTS: CHASE SECURITIES INC.
By:______________________________________
Name:_________________________________
Title:________________________________
NATIONSBANC MONTGOMERY SECURITIES LLC
By:______________________________________
Name:_________________________________
Title:________________________________
CO-AGENTS: THE BANK OF NEW YORK
By:______________________________________
Name:_________________________________
Title:________________________________
THE BANK OF NOVA SCOTIA
By:______________________________________
Name:_________________________________
Title:________________________________
PNC BANK NATIONAL ASSOCIATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 3
<PAGE> 110
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
BANQUE PARIBAS
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
LENDERS: TORONTO DOMINION (TEXAS), INC.
By:______________________________________
Name:_________________________________
Title:________________________________
NATIONSBANK, N.A.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 5
<PAGE> 111
BARCLAYS BANK, PLC
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 6
<PAGE> 112
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 7
<PAGE> 113
THE CHASE MANHATTAN BANK
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 8
<PAGE> 114
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 9
<PAGE> 115
CREDIT LYONNAIS NEW YORK BRANCH
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 10
<PAGE> 116
GENERAL ELECTRIC CAPITAL CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 11
<PAGE> 117
GOLDMAN SACHS CREDIT PARTNERS, L.P.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 12
<PAGE> 118
SOCIETE GENERALE
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 13
<PAGE> 119
THE BANK OF NEW YORK
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 14
<PAGE> 120
THE BANK OF NOVA SCOTIA
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 15
<PAGE> 121
FIRST UNION NATIONAL BANK
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 16
<PAGE> 122
PNC BANK NATIONAL ASSOCIATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 17
<PAGE> 123
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 18
<PAGE> 124
CIBC INC.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 19
<PAGE> 125
THE CIT GROUP/EQUIPMENT FINANCING, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 20
<PAGE> 126
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 21
<PAGE> 127
EXPORT DEVELOPMENT CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 22
<PAGE> 128
FLEET NATIONAL BANK
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 23
<PAGE> 129
FREMONT FINANCIAL CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 24
<PAGE> 130
THE ROYAL BANK OF SCOTLAND PLC
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 25
<PAGE> 131
SKANDINAVISKA ENSKILDA BANKEN
CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 26
<PAGE> 132
THE SUMITOMO TRUST AND BANKING CO.,
LTD., NEW YORK BRANCH
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 27
<PAGE> 133
U.S. BANK NATIONAL ASSOCIATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 28
<PAGE> 134
KZH-IV CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 29
<PAGE> 135
AG CAPITAL FUNDING PARTNERS, L.P.
BY: ANGELO, GORDON & CO., L.P.,
AS INVESTMENT ADVISOR
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 30
<PAGE> 136
APPALOOSA
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 31
<PAGE> 137
BALANCED HIGH-YIELD FUND I LTD.
BY: BHF-BANK AKTIENGESELLSCHAFT
ACTING THROUGH ITS NEW YORK BRANCH
AS ATTORNEY-IN-FACT
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 32
<PAGE> 138
BDC FINANCE L.L.C.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 33
<PAGE> 139
KZH-CNC CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 34
<PAGE> 140
KZH-CYPRESSTREE-1 CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 35
<PAGE> 141
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH,
AS INVESTMENT ADVISOR
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 36
<PAGE> 142
FIRST DOMINION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 37
<PAGE> 143
HARCH
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 38
<PAGE> 144
SENIOR HIGH INCOME PORTFOLIO, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 39
<PAGE> 145
KZH-ING-2 CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 40
<PAGE> 146
DEBT STRATEGIES FUND, INC.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 41
<PAGE> 147
MERRILL LYNCH SENIOR FLOATING RATE
FUND, INC. PRIME RATE PORTFOLIO
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 42
<PAGE> 148
MOUNTAIN CAPITAL ADVISORS
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 43
<PAGE> 149
OCTAGON LOAN TRUST
BY: OCTAGON CREDIT INVESTORS AS MANAGER
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 44
<PAGE> 150
PILGRIM AMERICA PRIME RATE TRUST
BY: PILGRIM AMERICA INVESTMENTS, INC.
AS ITS INVESTMENTS MANAGER
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 45
<PAGE> 151
PACIFIC INVESTMENT MANAGEMENT CO.
(PIMCO)
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 46
<PAGE> 152
PAM CAPITAL FUNDING LP
BY: HIGHLAND CAPITAL MANAGEMENT, L.P.,
AS COLLATERAL MANAGER
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 47
<PAGE> 153
DLJ CAPITAL FUNDING CORP.
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 48
<PAGE> 154
STEIN ROE & FARNHAM INCORPORATED, AS
AGENT FOR KEYPORT LIFE INSURANCE COMPANY
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 49
<PAGE> 155
KZH-SOLEIL-2 CORPORATION
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 50
<PAGE> 156
VAN KAMPEN AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 51
<PAGE> 157
BANQUE PARIBAS
By:______________________________________
Name:_________________________________
Title:________________________________
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 52
<PAGE> 158
UNION BANK OF CALIFORNIA
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 53
<PAGE> 159
CYPRESSTREE INVESTMENT FUND, LLC
By: CypressTree Investment Management
Company, Inc. its Managing Member
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 54
<PAGE> 160
CYPRESSTREE INVESTMENT MANAGEMENT
COMPANY, INC.
AS: ATTORNEY-IN-FACT AND ON BEHALF OF
FIRST ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY AS PORTFOLIO MANAGER
By:______________________________________
Name:_________________________________
Title:________________________________
WESTERN PCS LOAN AGREEMENT
Signature Page 55
<PAGE> 161
TABLE OF CONTENTS
<TABLE>
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ARTICLE 1 Definitions .......................................................................... 1
ARTICLE 2 Loans ................................................................................ 26
Section 2.1 The Loans ................................................................ 26
Section 2.2 Manner of Borrowing and Disbursement ..................................... 27
Section 2.3 Interest ................................................................. 30
Section 2.4 Repayment ................................................................ 33
Section 2.5 Fees ..................................................................... 35
Section 2.6 Prepayments .............................................................. 36
Section 2.7 Borrower's Optional Cancellation of
the Revolving Loan Commitment ............................................ 37
Section 2.8 Mandatory Prepayments .................................................... 37
Section 2.9 Notes; Loan Accounts ..................................................... 39
Section 2.10 Manner of Payment ....................................................... 40
Section 2.11 Reimbursement ........................................................... 41
Section 2.12 Pro Rata Treatment ...................................................... 41
Section 2.13 Capital Adequacy ........................................................ 43
Section 2.14 Lender Tax Forms ........................................................ 43
ARTICLE 3 Conditions Precedent ................................................................. 44
Section 3.1 Conditions Precedent to Initial Advance .................................. 44
Section 3.2 Conditions Precedent to Each Advance ..................................... 48
Section 3.3 Conditions Precedent to Initial Advance
of the Revolving Loans ................................................... 49
ARTICLE 4 Representations and Warranties ....................................................... 49
Section 4.1 Representations and Warranties ........................................... 49
Section 4.2 Survival of Representations and
Warranties, etc .......................................................... 58
ARTICLE 5 General Covenants .................................................................... 58
Section 5.1 Preservation of Existence and Similar Matters ............................ 59
Section 5.2 Business; Compliance with Applicable Law ................................. 59
Section 5.3 Maintenance of Properties ................................................ 59
Section 5.4 Accounting Methods and Financial Records ................................. 59
Section 5.5 Insurance ................................................................ 60
Section 5.6 Payment of Taxes and Claims .............................................. 61
Section 5.7 Visits and Inspections ................................................... 61
Section 5.8 Payment of Indebtedness; Loans ........................................... 61
Section 5.9 Use of Proceeds .......................................................... 62
</TABLE>
<PAGE> 162
<TABLE>
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Section 5.10 Real Estate ............................................................. 62
Section 5.11 Indemnity ............................................................... 62
Section 5.12 Interest Rate Hedging ................................................... 63
Section 5.13 Covenants Regarding Formation of Restricted Subsidiaries and the
Making of Investments and Acquisitions .................................. 64
Section 5.14 Designation of Unrestricted Subsidiaries
as Restricted Subsidiaries .............................................. 65
Section 5.15 Payment of Wages ........................................................ 65
ARTICLE 6 Information Covenants ................................................................ 66
Section 6.1 Quarterly Financial Statements and Information ........................... 66
Section 6.2 Annual Financial Statements and Information .............................. 67
Section 6.3 Performance Certificates ................................................. 67
Section 6.4 Copies of Other Reports .................................................. 68
Section 6.5 Notice of Litigation and Other Matters ................................... 68
ARTICLE 7 Negative Covenants ................................................................... 69
Section 7.1 Indebtedness of the Borrower and its Restricted Subsidiaries ............. 70
Section 7.2 Limitation on Liens ...................................................... 70
Section 7.3 Amendment and Waiver ..................................................... 70
Section 7.4 Liquidation, Merger, Disposition of Assets ............................... 71
Section 7.5 Limitation on Guaranties ................................................. 71
Section 7.6 Investments and Acquisitions ............................................. 72
Section 7.7 Restricted Payments and Purchases ........................................ 75
Section 7.9 Stage One -- Ratio of Total Debt to Contributed Capital .................. 76
Section 7.10 Stage One-- Minimum Annualized Revenues ................................. 76
Section 7.11 Stage One -- Maximum Capital Expenditures ............................... 76
Section 7.12 Stage Two -- Ratio of Operating Cash Flow to Cash Interest Expense ...... 77
Section 7.13 Stage Two -- Fixed Charge Coverage Ratio ................................ 77
Section 7.14 Stage Two-- Leverage Ratios ............................................. 77
Section 7.15 Stage Two-- Annualized Operating Cash
Flow to Pro Forma Debt Service Ratio .................................... 77
Section 7.16 Affiliate Transactions .................................................. 78
Section 7.17 Real Estate ............................................................. 78
Section 7.18 ERISA Liabilities ....................................................... 78
Section 7.19 New Unrestricted Subsidiaries ........................................... 78
Section 7.20 Limitation on Preferred Stock of Restricted Subsidiaries ................ 78
</TABLE>
<PAGE> 163
<TABLE>
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ARTICLE 8 Default .............................................................................. 79
Section 8.1 Events of Default ........................................................ 79
Section 8.2 Remedies ................................................................. 83
Section 8.3 Payments Subsequent to Declaration of Event of Default ................... 84
ARTICLE 9 The Administrative Agent ............................................................. 85
Section 9.1 Appointment and Authorization ............................................ 85
Section 9.2 Interest Holders ......................................................... 86
Section 9.3 Consultation with Counsel ................................................ 86
Section 9.4 Documents ................................................................ 86
Section 9.5 Administrative Agent and Affiliates ...................................... 86
Section 9.6 Responsibility of the Administrative Agent ............................... 86
Section 9.7 Security Documents ....................................................... 87
Section 9.8 Action by the Administrative Agent ....................................... 87
Section 9.9 Notice of Default or Event of Default .................................... 88
Section 9.10 Responsibility Disclaimed ............................................... 88
Section 9.11 Indemnification ......................................................... 89
Section 9.12 Credit Decision ......................................................... 89
Section 9.13 Successor Administrative Agent .......................................... 90
Section 9.14 Delegation of Duties .................................................... 91
ARTICLE 10 Change in Circumstances Affecting Eurodollar Advances ............................... 91
Section 10.1 Eurodollar Basis Determination Inadequate or Unfair .................... 91
Section 10.2 Illegality .............................................................. 92
Section 10.3 Increased Costs ......................................................... 93
Section 10.4 Effect On Other Advances ................................................ 94
ARTICLE 11 Miscellaneous ....................................................................... 94
Section 11.1 Notices ................................................................. 94
Section 11.2 Expenses ................................................................ 96
Section 11.3 Waivers ................................................................. 97
Section 11.4 Set-Off ................................................................. 97
Section 11.5 Assignment .............................................................. 98
Section 11.6 Accounting Principles ................................................... 100
Section 11.7 Counterparts ............................................................ 100
Section 11.8 Governing Law ........................................................... 100
Section 11.9 Severability ............................................................ 101
Section 11.10 Interest ............................................................... 101
Section 11.11 Table of Contents and Headings ......................................... 101
Section 11.12 Amendment and Waiver ................................................... 101
Section 11.13 Entire Agreement ....................................................... 102
Section 11.14 Other Relationships .................................................... 103
Section 11.15 Directly or Indirectly ................................................. 103
Section 11.16 Reliance on and Survival of Various Provisions ......................... 103
Section 11.17 Senior Debt ............................................................ 103
</TABLE>
<PAGE> 164
<TABLE>
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Section 11.18 Obligations Several .................................................... 103
Section 11.19 Confidentiality ........................................................ 103
ARTICLE 12 Waiver of Jury Trial ................................................................ 104
Section 12.1 Waiver of Jury Trial .................................................... 104
</TABLE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A - Form of Borrower's Pledge Agreement
Exhibit B - Form of Certificate of Financial
Condition
Exhibit C Form of Performance Certificate
Exhibit D - Form of Request for Advance
Exhibit E - Form of Revolving Note
Exhibit F - Form of Security Agreement
Exhibit G - Form of Subsidiary Guaranty
Exhibit H - Form of Subsidiary Pledge Agreement
Exhibit I - Form of Subsidiary Security Agreement
Exhibit J - Form of Tranche A Term Note
Exhibit K - Form of Tranche B Term Note
Exhibit L - Form of Use of Proceeds Letter
Exhibit M - Form of VoiceStream Guaranty
Exhibit N - Form of VoiceStream Pledge Agreement
Exhibit O - Form of Borrower's Loan Certificate
Exhibit P - Form of Subsidiary Loan Certificate
(Corporation)
Exhibit Q - Form of Subsidiary Loan Certificate
(Partnership)
Exhibit R - Form of Assignment and Assumption
Agreement
</TABLE>
SCHEDULES
<TABLE>
<S> <C>
Schedule 1 - Allocation of Commitments among Lenders, and
Lenders' Addresses for Notice
Schedule 2 - Licenses
Schedule 3 - Liens of Record as of the Agreement Date
Schedule 4 - Subsidiaries (including designation of
Subsidiaries as Restricted and Unrestricted
Subsidiaries) and Investments of the
Borrower
Schedule 5 - Issues Pertaining to Necessary
Authorizations and Licenses
Schedule 6 - Litigation
Schedule 7 - Liabilities and Losses
Schedule 8 - Agreements with Affiliates, etc.
Schedule 9 - Real Estate
</TABLE>
<PAGE> 1
Exhibit 10.74
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of
November 28, 1997 by and between WESTERN WIRELESS CORPORATION, a Delaware
corporation ("Purchaser"), and CORPORATE TELECOM SERVICES, INC., a Maryland
corporation ("Seller"). Purchaser and Seller are sometimes referred to herein
collectively as the "Parties" and each as a "Party."
RECITALS
WHEREAS, Seller is the holder of the non-wireline cellular radio
telephone license granted by the Federal Communications Commission (the "FCC" or
the "Commission") for the Nebraska-5 Rural Service Area, commonly known as FCC
RSA No. 537 - Boone (the "RSA");
WHEREAS, Purchaser, an experienced cellular licensee has been providing
cellular radio service within said RSA pursuant to interim operating authority
granted by the FCC;
WHEREAS, Purchaser has entered into an agreement to purchase certain
rights relating to the license from Global Communications Systems, Inc. ("GCSI")
under the terms of an Asset Purchase Agreement executed as of the same date as
this Agreement (the "GCSI APA"); and
WHEREAS, Seller desires to sell and Purchaser wishes to acquire the
Authorization for the price and on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
As used herein, the terms below shall have the following meanings:
"Action" shall have the meaning set forth in Section 5.5.
"Affiliate" of a Person shall mean any Person which directly or
indirectly controls, is controlled by, or is under common control with, such
Person. The term "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or
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<PAGE> 2
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Assignment Application" shall mean that joint application filed with
the FCC relating to the assignment of the Authorization to Purchaser in the
manner contemplated by this Agreement.
"Authorization" shall mean the Authorization from the FCC relating to
the Nebraska-5 RSA that authorize the holder thereof to construct, own and
operate the non-wireline cellular telephone system in the Nebraska-5 RSA.
"Closing Date" shall mean the first business day that is fifteen (15)
days immediately following the date of the issuance of the FCC Consent by Final
Order.
"Closing Place" shall mean such location agreed upon by the Parties or,
in the absence of such an agreement, the offices of Stokes Lawrence, P.S., 800
Fifth Avenue, Suite 4000, Seattle, Washington 98104.
"Closing" shall mean the consummation of the assignment, transfer,
conveyance and delivery of the Authorization and the Purchase Price as
contemplated hereunder.
"Consents" shall mean any and all consents, approvals, authorizations or
waivers of any public, governmental or regulatory body or authority, including,
without limitation, the FCC Consent, that are required for the consummation of
the transactions contemplated by this Agreement.
"CTSI" shall mean Corporate Telecom Services, Inc.
"CTSI Loan Agreement" shall mean that Loan and Pledge Agreement executed
by CTSI and GCSI on the 13th day of December, 1994, together with all amendments
or modifications thereof.
"FCC Consent" shall mean the action of the FCC granting its consent to
the assignment of the Authorization from Seller to Purchaser.
"Final Order" shall mean an action by the FCC consenting to or
authorizing the assignment of the Authorization to Purchaser (or its designee),
which is not reversed, stayed, enjoined, set aside, annulled, or suspended, and
with respect to which no timely request for stay, motion or petition for
reconsideration or rehearing, application or request for review, or notice of
appeal or other judicial petition for review is pending, and as to which the
time for filing any such request, motion, petition, application, appeal, or
notice, and for the entry of an order staying, reconsidering, or reviewing on
the FCC's or other regulatory authorities' own motion, has expired. An action of
the FCC which is not reversed, stayed, enjoined, set aside, annulled, or
suspended, and with respect to which no
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<PAGE> 3
timely request for stay, motion or petition for reconsideration or rehearing,
application or request for review, or notice of appeal or other judicial
petition for review is pending, and as to which the time for filing any such
requests, motion, petition, application, appeal, or notice, and for the entry of
an order staying, reconsidering or reviewing on the FCC's or other regulatory
authorities' own motion has expired, but which is subject to conditions is not
(and shall not be deemed) a Final Order unless and until the Party acquiring
such Authorization pursuant to the terms of this Agreement has notified Seller
in writing of its willingness to accept such conditions.
"GCSI" shall mean Global Communications Systems, Inc.
"GCSI APA" shall have the meaning set forth in the preamble to this
Agreement.
"Indemnification Period" shall have the meaning set forth in Section
10.1.
"Purchase Price" shall have the meaning set forth in Section 2.2.
"Representative" shall mean any officer, director, principal, attorney,
agent, employee or other representative of any Person.
"System" shall mean that system constructed to provide cellular
telephone services under the authority of the Authorization.
"Taxes" shall mean all taxes, charges, fees, levies or other
assessments, including without limitation, income, excise, use, transfer,
payroll, occupancy, property, sales, franchise, unemployment and withholding
taxes, imposed by the United States or any state, county, local or foreign
government or subdivision or agency thereof, and any assessments against Real
Property together with any interest, penalties or additional taxes attributable
to such taxes and other assessments.
"To the knowledge" or "knowledge" of a party (or similar phrases) shall
mean to the extent of matters (a) which are actually known by such party or (b)
which, based on facts of which such party is aware, would be known to a
reasonable person in similar circumstances.
ARTICLE 2.
PURCHASE OF ASSETS
2.1. Assignment of Authorization. Subject to the terms and upon
satisfaction of the conditions contained in this Agreement, at the Closing,
Seller shall sell, convey, transfer, assign and deliver to Purchaser (or its
designee), and Purchaser (or its designee) will acquire, the Authorization.
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<PAGE> 4
2.2. Purchase Price. The purchase price for the Authorization shall be
Six Million Nine Hundred Sixty Thousand Dollars ($6,960,000) (the "Purchase
Price"), which shall be paid by Purchaser to Seller (or its designee) on the
Closing Date by wire transfer of immediately available funds.
ARTICLE 3.
ASSUMED OBLIGATIONS
No Assumption of Liabilities by Purchaser. Purchaser expressly does not,
and shall not, assume or be deemed to have assumed under this Agreement or by
reason of any transactions contemplated hereunder any debts, liabilities
(contingent or otherwise) or obligations of Seller, or any of its stockholders
or partners, as the case may be, of any nature whatsoever, whether relating to
the Authorization or otherwise.
ARTICLE 4.
COVENANTS AND AGREEMENTS
4.1. Covenants of Seller. Seller covenants and agrees from and after the
execution and delivery of this Agreement to and including the Closing Date as
follows:
4.1.1. Consummate Transactions. Seller shall use its reasonable
best efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof, and shall use its reasonable
best efforts to refrain from any actions that might adversely affect any Party's
ability to consummate the contemplated transactions in accordance with the terms
hereof.
4.1.2. Compliance with Law; Maintenance of Authorization. Seller
shall comply in all material respects with all applicable laws, rules,
ordinances, regulations, codes, orders, decrees, licenses and permits of all
applicable jurisdictions and governmental authorities or agencies relating to
Seller and the Authorization. Seller shall maintain the Authorization in full
force and effect, and shall not take any action which might reasonably be
anticipated to have a material adverse effect on the Authorization.
4.1.3. Notice of Claims. Seller shall give written notice to
Purchaser promptly upon the commencement of any action, investigation,
arbitration or proceeding (including any proceeding before any governmental
agency), or promptly upon obtaining knowledge of any facts giving rise to a
threat of any such action, investigation, arbitration or proceeding which would,
if adversely determined, materially and adversely affect (1) Seller's ability to
consummate the transactions contemplated hereby or (2) the Authorization.
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<PAGE> 5
4.1.4. Notice of Breaches. Seller shall promptly after obtaining
knowledge of the occurrence of, or the impending or threatened occurrence of,
any event which would cause or constitute a breach of any warranties,
representations, covenants or agreements of the Seller contained in this
Agreement, give notice in writing of such event or occurrence or impending or
threatened event or occurrence, to Purchaser and use its diligent efforts to
prevent or to promptly remedy such breach.
4.1.5. No Sale. Except as the same may relate to this Agreement
and the transactions contemplated hereunder, Seller shall not enter into any
contract or agreement to sell or encumber the Authorization.
4.1.6. Retention of Records. On the Closing Date, Seller shall
deliver to Purchaser all such books, contracts and records of Seller that relate
to the Authorization as are reasonably requested by Purchaser.
4.1.7. Compliance with Law. Seller shall comply in all material
respects with all applicable laws, rules, ordinances, regulations, codes,
orders, decrees, licenses and permits of all applicable jurisdictions and
governmental authorities or agencies relating to the Authorization.
4.2. Covenants of Purchaser. Purchaser covenants and agrees that from
and after the execution and delivery of this Agreement to and including the
Closing Date:
4.2.1. Consummate Transaction. Purchaser shall use its best
efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof, and shall refrain from any
actions that might adversely affect any Party's ability to consummate the
contemplated transactions in accordance with the terms hereof.
4.2.2. Notice of Breaches. Purchaser shall promptly after
obtaining knowledge of the occurrence of, or the impending or threatened
occurrence of, any event which would cause or constitute a breach of any
warranties, representations, covenants or agreements of the Purchaser contained
in this Agreement, give notice in writing of such event or occurrence or
impending or threatened event or occurrence, to Seller and use its diligent
efforts to prevent or to promptly remedy such breach.
4.3. Mutual Covenants.
4.3.1. Governmental Filings. Each of Seller and Purchaser
covenant and agree from and after the execution and delivery of this Agreement
to and including the Closing Date that the parties have filed or will file with
the FCC by no later than ten business days from the date of the Agreement's
execution, joint applications requesting the approval of the assignment of the
Authorization to Purchaser, and, if applicable, will file all necessary
applications with the Department of Justice and/or the Federal Trade
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<PAGE> 6
Commission pursuant to the Antitrust Improvement Acts of 1976, as amended ("HSR
Act"). Each of the parties hereto shall diligently take or cooperate in the
taking of all steps which are necessary or appropriate to expedite the
prosecution and favorable consideration of such applications. The parties
covenant and agree to undertake all actions and file such material as shall be
necessary or required to obtain any necessary waivers or other authority in
connection with the foregoing applications.
4.3.2. Approvals; Consents. The parties shall consult with one
another as to the approach to be taken with any governmental authority or agency
with respect to obtaining any necessary consent of such governmental agency or
authority to the transactions contemplated hereby. If it appears to Seller that
the transactions herein may not be consummated prior to November 12, 1998, then,
if requested by Seller, Purchaser shall cooperate with Seller in entering into a
mutually acceptable lease arrangement and operating agreement as contemplated by
Article 12 of this Agreement. Each of the parties shall keep each other party
reasonably informed as to the status of any such communi cations with any
governmental authority or agency. To the extent it is permitted by applicable
FCC regulations, Seller shall not make any material commitments relating to any
approval, consent, permit or license to any governmental authority or agency
without Purchaser's prior written consent, which consent shall not be
unreasonably withheld.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Purchaser:
5.1. Organization and Standing. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, and has full corporate power and authority to enter into and
perform this Agreement.
5.2. Authorization and Binding Obligations. The execution, delivery and
performance of this Agreement by Seller have been duly and validly authorized by
all necessary corporate action, including approval of the entire transaction by
the requisite vote of the board of directors of Seller. This Agreement has been
duly executed and delivered by Seller and constitutes a valid and binding
agreement of Seller enforceable against it in accordance with its terms, except
as its enforceability may be limited by bankruptcy, insolvency, moratorium or
other laws relating to or affecting creditors' rights generally and the exercise
of judicial discretion in accordance with general equitable principles.
5.3. No Contravention. Except as otherwise contemplated hereunder, the
execution, delivery and performance of this Agreement, the consummation of the
transactions contemplated hereby and the compliance with the provisions hereof
by Seller
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<PAGE> 7
will not (a) violate any provisions of the corporate charter or bylaws of
Seller, (b) result in the breach of, or constitute a default under, or result in
the creation of any lien, charge or encumbrance upon the Authorization under the
provisions of any agreement or other instrument to which Seller is a party or by
which the property of Seller is bound or affected or (c) violate any laws,
regulations, orders or judgments applicable to Seller.
5.4. Authorization. The Authorization is not, or will not be on the
Closing Date, subject to any agreements or restrictions that would inhibit or
prevent Seller from assigning the same to Purchaser free and clear of any and
all liens and encumbrances. Furthermore, there are no, and there will not be on
the Closing Date, any agreements that may effect the validity of the
Authorization or Purchaser's right to own or hold the same now or in the future,
nor are there any agreements that may affect Seller's right to own, hold or
assign the Authorization to Purchaser as contemplated by this Agreement. The
Authorization is validly issued in the name of Seller and is in full force and
effect. The Authorization is unimpaired by any acts or omissions of Seller (or
any of its Representatives) and the Authorization is free and clear of any
restrictions which might limit the full operation of a system constructed to
provide cellular telephone services under the authority of the Authorization.
The Authorization is not and will not be materially and adversely
affected by any of the rights or obligations created under Article VI of the
CTSI Loan Agreement (hereinafter collectively referred to as the "Article VI
Rights") or by the transfer of any of the Article VI Rights to Purchaser, and
the existence of the Article VI Rights does not constitute, and will not cause,
a violation of FCC rules, regulations or orders, or the rules or regulations of
any other governmental authority having jurisdiction over the Authorization. The
creation of the Article VI Rights did not grant an interest in the FCC
application for the Authorization that was or is in violation of the rules,
regulations or orders of the FCC, and does not grant an interest in the
Authorization that was or is in violation of the rules, regulations or orders of
the FCC. The existence of the Article VI Rights did not have to be reported to
the FCC while the FCC application for the Authorization was pending and does not
have to be reported to the FCC in connection with the assignment of the
Authorization to Purchaser under the rules, regulations and orders of the FCC.
5.5. Litigation. There is no action, order, writ, injunction, judgment
or decree outstanding or claim, suit, litigation, proceeding, or labor dispute
("Action"), other than rule-making proceedings affecting the cellular telephone
industry generally, pending or, to the knowledge of Seller, threatened or
anticipated against, relating to or affecting (a) Seller, (b) the Authorization,
or (c) the transactions contemplated by this Agreement. Seller is not in default
with respect to any judgment, order, writ, injunction or decree of any court or
governmental agency, and there are no unsatisfied judgments against Seller or
the Authorization. There is not a reasonable likelihood of an adverse
determination of any pending Action which would, individually or in the
aggregate, have a material adverse effect on the Seller or the Authorization.
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5.6. Complaints. There is not any Commission investigation, notice of
apparent liability or order of forfeiture pending or outstanding against Seller
respecting any violation, or allegation thereof, of any Commission rule,
regulation or policy, or, to the best of Seller's knowledge, any complaint
before the Commission as a result of which an investigation, notice of apparent
liability or order of forfeiture may issue from the Commission relating to the
System, nor is there any basis for any such claim.
5.7. Reports. All returns, reports and statements currently required to
be filed by Seller with the Commission or with any other governmental agency
with respect to the Authorization have been filed and substantially complied
with and shall continue to be filed and be in substantial compliance on a
current basis until the Closing Date. All such reports, returns and statements
are (or will be, in the case of future reports) substantially complete and
correct as filed.
5.8. Taxes. Seller has filed, or caused to be filed, with the
appropriate federal, state and local governmental agencies all required tax and
information returns, and Seller has paid, caused to be paid or accrued all
taxes, excise taxes, assessments, charges, penalties and interest shown to be
due and payable or claimed to be due and payable thereon.
5.9. No Brokers. Neither Seller nor any of its Affiliates have entered
into or will enter into any contract, agreement, arrangement or understanding
with any person or firm which will result in the obligation of Purchaser to pay
any finder's fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.
5.10. Miscellaneous. No representation or warranty made by Seller in
this Agreement, and no statement made in any schedule, exhibit, certificate or
other document furnished pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or knowingly omits or fails to state, or
will omit or fail to state, any material fact or information necessary to make
such representation or warranty or any such statement not materially misleading.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties to
Seller:
6.1. Organization and Standing. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, and has full corporate power and authority to enter into and
perform this Agreement.
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6.2. Authorization and Binding Obligations. The execution, delivery and
performance by Purchaser of this Agreement has been duly and validly authorized
by all necessary corporate action, including any necessary approval of the
entire transaction by the board of directors of Purchaser. This Agreement has
been duly executed and delivered by Purchaser and constitutes a valid and
binding agreement of Purchaser, enforceable against Purchaser in accordance with
its terms except as its enforceability may be limited by bankruptcy, insolvency,
moratorium or other laws relating to or affecting creditors' rights generally
and the exercise of judicial discretion in accordance with general equitable
principles.
6.3. No Contravention. Except as otherwise contemplated hereunder, the
execution, delivery and performance of this Agreement, the consummation of the
transactions contemplated hereby and the compliance with the provisions hereof
by Purchaser will not (a) violate any provisions of the corporate charter or
by-laws of Purchaser, or (b) violate any laws, regulations, orders or judgments
applicable to Purchaser.
6.4. Litigation. There is no Action, other than rule-making proceedings
affecting the cellular telephone industry generally, pending or, to the
knowledge of Purchaser, threatened or anticipated against, relating to or
affecting Purchaser that would have a material adverse effect Purchaser's
ability to consummate the transactions contemplated by this Agreement. There is
not a reasonable likelihood of an adverse determination of any pending Action
which would, individually or in the aggregate, have a material adverse effect on
Purchaser's ability to consummate the transactions contemplated by this
Agreement.
6.5. Qualification of Purchaser. Purchaser is familiar with the
Communications Act of 1934, as amended, and the existing rules, regulations,
policies and orders of the FCC. There is no fact known to Purchaser that would
under the Act and existing rules, regulations, policies and orders of the FCC
disqualify Purchaser from acquiring the Authorization from Seller.
6.6. No Brokers. Neither Purchaser nor any of its Affiliates have
entered into or will enter into any contract, agreement, arrangement or
understanding with any person or firm which will result in the obligation of
Seller to pay any finder's fee, brokerage commission or similar payment in
connection with the transactions contemplated hereby.
6.7. Miscellaneous. No representation or warranty made by Purchaser in
this Agreement, and no statement made in any schedule, exhibit, certificate or
other document furnished pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or knowingly omits or fails to state, or
will omit or fail to state, any material fact or information necessary to make
such representation or warranty or any such statement not materially misleading.
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<PAGE> 10
ARTICLE 7.
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to assign the Authorization and to otherwise
consummate the transactions contemplated by this Agreement are subject, in the
discretion of Seller, to the satisfaction, on or prior to the Closing Date, of
each of the following conditions:
7.1. Representations, Warranties and Covenants. All representations and
warranties of Purchaser contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date as if such representations
and warranties were made at and as of the Closing Date, and Purchaser shall have
performed in all material respects all agreements and covenants required hereby
to be performed by it prior to or at the Closing Date. There shall be delivered
to Seller a certificate (signed by an officer of Purchaser) to the foregoing
effect ("Purchaser's Closing Certificate").
7.2. Closing Documents. Seller shall have received from Purchaser the
documents and other items to be delivered by Purchaser pursuant to Section 9.2
of this Agreement.
7.3. Purchase Price. Seller shall have received payment of the Purchase
Price in accordance with Article 2 hereof.
7.4. HSR Waiting Period. If applicable, any waiting period required by
the HSR Act shall have lapsed or been terminated, and any investigation of the
transactions contemplated by this Agreement commenced by the Department of
Justice and/or the Federal Trade Commission pursuant to the HSR Act shall have
been terminated.
ARTICLE 8.
CONDITIONS TO PURCHASER'S OBLIGATIONS
The obligations of Purchaser to purchase the Authorization and to
otherwise consummate the transactions contemplated by this Agreement are
subject, in the discretion of Purchaser, to the satisfaction, on or prior to the
Closing Date, of each of the following conditions:
8.1. Representations, Warranties and Covenants. All representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date as if such representations
and warranties were made at and as of the Closing Date, and Seller shall have
performed in all material respects all agreements and covenants required hereby
to be performed by Seller prior to or at the
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<PAGE> 11
Closing Date. There shall be delivered to Purchaser a certificate (signed by an
officer of Seller) to the ongoing effect ("Seller's Closing Certificate").
8.2. Consent. The FCC shall have consented to the assignment of the
Authorization to Purchaser and such consents shall have become a Final Order.
8.3. Closing of GCSI Transaction. All conditions precedent to the
closing of the transaction contemplated by the GCSI APA shall have been met or
waived, and such transaction shall be ready to be closed contemporaneously with
the transactions contemplated by this Agreement.
8.4. Closing Documents. Purchaser shall have received from Seller the
documents and other items to be delivered by Seller pursuant to Section 9.1
hereof.
8.5. Opinion of Seller's Corporate Counsel. Seller shall have delivered
to Purchaser an opinion or opinions of corporate counsel for Seller in
substantially the form attached hereto as Exhibit 8.5.
8.6. Opinion of Seller's FCC Counsel. Seller shall have delivered to
Purchaser an opinion or opinions of FCC counsel for Seller in substantially the
form attached hereto as Exhibit 8.6.
8.7. HSR Waiting Period. If applicable, any waiting period required by
the HSR Act shall have lapsed or been terminated, and any investigation of the
transactions contemplated by this Agreement commenced by the Department of
Justice and/or the Federal Trade Commission pursuant to the HSR Act shall have
been terminated.
ARTICLE 9.
THE CLOSING
On the Closing Date at the Closing Place:
9.1. Deliveries by Seller to Purchaser. Seller shall deliver to
Purchaser:
9.1.1. one or more assignments assigning to Purchaser (or its
designee) all of Seller's interest in and to the Authorization;
9.1.2. the opinions of Seller's counsel referenced in Sections
8.5 and 8.6 hereof;
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<PAGE> 12
9.1.3. a copy of the resolutions of the board of directors of
Seller approving the transactions contemplated by this Agreement certified by an
appropriate officer of Seller; and
9.1.4. Seller's Closing Certificate.
9.2. Deliveries by Purchaser to Seller. Purchaser shall deliver to
Seller (or its designee):
9.2.1. Purchaser's Closing Certificate; and
9.2.2. payment of the Purchase Price.
ARTICLE 10.
INDEMNIFICATION
10.1. Survival. The several representations, warranties, covenants, and
agreements of the Parties contained in this Agreement (or in any document
delivered in connection herewith) shall be deemed to have been made on the date
of this Agreement and on the Closing Date, shall be deemed to be material and to
have been relied upon by the Parties notwithstanding any investigation made by
the Parties, shall survive the Closing Date, and shall remain operative and in
full force and effect for a period of three (3) years following the Closing
Date; provided, however, that the representations, warranties and agreements of
Seller contained in Section 5.4 (Authorization) shall continue for the duration
of any applicable statute of limitations. The period during which the several
representations, warranties, covenants and agreements shall survive and continue
is referred to herein as the "indemnification period."
10.2. Seller's Indemnity.
10.2.1. During the indemnification period (or thereafter solely
with respect to any claim for which indemnification has been made prior to the
expiration of the indemnification period), Seller shall indemnify and hold
harmless Purchaser and its Affiliates from and against any and all demands,
claims, losses, liabilities, actions or causes of action, assessments, actual
damages (but excluding consequential damages), fines, taxes (including, without
limitation, excise and penalty taxes), penalties, reasonable costs and expenses
(including, without limitation, interest, reasonable expenses of investigation,
reasonable fees and disbursements of counsel, accountants and other experts
(whether such reasonable fees and disbursements of counsel, accountants and
other experts relate to claims, actions or causes of action asserted by
Purchaser against Seller or asserted by third parties)) (collectively "Losses")
incurred or suffered by Purchaser, its Affiliates, and their
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<PAGE> 13
respective officers, directors, employees, agents and representatives, arising
out of, resulting from, or relating to:
(a) Any breach of any of the representations or warranties
made by Seller in this Agreement or in any agreement, certificate, exhibit or
other instrument delivered by the Seller pursuant to this Agreement; and
(b) Any failure by Seller to perform any of its covenants
or agreements contained in this Agreement or in any agreement, certificate or
other instrument delivered by the Seller pursuant to this Agreement.
10.3. Purchaser's Indemnity.
10.3.1. During the indemnification period (or thereafter solely
with respect to any claim for which indemnification has been made prior to
expiration of the indemnification period), in addition to any other
indemnification provided for under this Agreement, Purchaser shall indemnify and
hold harmless Seller and its Affiliates from and against any and all Losses
incurred or suffered by Seller, its Affiliates, and their respective officers,
directors, employees, agents and representatives, arising out of, resulting
from, or relating to:
(a) Any breach of any of the representations or warranties
made by Purchaser in this Agreement or in any agreement, certificate or other
instrument delivered by Purchaser pursuant to this Agreement; or
(b) Any failure by Purchaser to perform any of its
covenants or agreements contained in this Agreement or in any agreement,
certificate or other instrument delivered by Purchaser pursuant to this
Agreement.
10.4. Procedure. In the event that any party hereto shall sustain or
incur any Losses in respect of which indemnification may be sought by such party
pursuant to this Article, the party seeking such indemnification (the
"Indemnitee") shall assert a claim for indemnification by giving prompt written
notice thereof (the "Notice") which shall describe in reasonable detail the
facts and circumstances upon which the asserted claim for indemnification is
based along with a copy of the claim or complaint, to the party providing
indemnification (the "Indemnitor") and shall thereafter keep the Indemnitor
reasonably informed with respect thereto; provided that failure of the
Indemnitee to give the Indemnitor prompt notice as provided herein shall not
relieve the Indemnitor of any of its obligations hereunder, except to the extent
that the Indemnitor is materially prejudiced by such failure. For purposes of
this paragraph, any notice which is sent within 15 days of the date upon which
the Indemnitee learned of such Loss shall be deemed to have been a "prompt
notice."
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<PAGE> 14
10.4.1. If the Indemnitor wishes to defend any claim for any
Losses for which such Indemnitor is or may be liable, and such Indemnitor first
establishes (to the reasonable satisfaction of the Indemnitee) the Indemnitor's
financial ability to pay for any such Losses, then such Indemnitor may, at its
own expense, defend such claim; provided that the Indemnitee may retain counsel
(at the Indemnitee's expense) to monitor the defense of such claim, and may take
over such defense if, during the course thereof, it reasonably appears that the
Indemnitor has lost its ability to pay for any Losses threatened by such claim.
If an Indemnitor assumes the defense of such an action, no compromise or
settlement thereof may be effected by the Indemnitor without the Indemnitee's
consent, which consent shall not be unreasonably withheld. If an Indemnitor
fails, within thirty (30) days after the date of the Notice, to give notice to
the Indemnitee of said Indemnitor's election to assume the defense thereof, said
Indemnitor shall be bound by any determination made in such action or any
compromise or settlement thereof effected by the Indemnitee.
10.4.2. Amounts payable by the Indemnitor to the Indemnitee in
respect of any Losses for which any party is entitled to indemnification
hereunder shall be payable by the Indemnitor as incurred by the Indemnitee.
10.5. Indemnification Payments in Cash. All payments in respect to any
indemnification obligation shall be made in cash.
10.6. Investigations: Waivers. The survival periods and rights to
indemnification provided for in this Article shall remain in effect
notwithstanding any investigation at any time by or on behalf of any party
hereto or any waiver by any party hereto of any condition to such party's
obligations to consummate the transactions contemplated hereby.
ARTICLE 11.
TERMINATION
Absence of Commission Consent. This Agreement may be terminated at the
option of Seller or Purchaser upon written notice to the other if the Assignment
Application has not been granted by Final Order within twelve (12) months after
the date of this Agreement. Neither party may terminate this Agreement pursuant
to this Section if such party is in material default hereunder, or if a delay in
any decision or determination by the Commission respecting the Assignment
Application has been caused or materially contributed to by such party's action
or inaction with respect to such Assignment Application.
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<PAGE> 15
ARTICLE 12.
INTERIM CONSTRUCTION
Nothing in this Agreement shall be construed as restricting Seller's
right to undertake any construction activity that Seller may deem necessary or
appropriate in order to comply with FCC construction obligations. It is
acknowledged that such activity may include the participation or assistance of
GCSI, and may involve the utilization of an SCS 800 switch; the co-licensing of
existing facilities in the RSA; or by entering into a lease arrangement and
operating agreement with Purchaser as the current provider of services in the
RSA. No such construction or activity shall affect any of the terms and
conditions of this Agreement.
ARTICLE 13.
MISCELLANEOUS
13.1. Assignment. Except as provided below, neither this Agreement nor
any of the rights or obligations hereunder may be assigned by Seller or
Purchaser without the prior written consent of the others. Notwithstanding the
foregoing, Purchaser may, without consent, assign its right, title and interest
in, to and under this Agreement to an Affiliate so long as Purchaser remains
obligated for all representations, warranties and obligations made by Purchaser
herein, and provided such assignment does not delay the Closing Date. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns, and no other person shall have any
right, benefit or obligation hereunder.
13.2. Notices; Transfer of Funds. Unless otherwise provided herein, any
notice, request, instruction or other document to be given hereunder by any
Party to the other shall be in writing and delivered in person or by courier,
telegraphed, telexed or by facsimile transmission or mailed by registered or
certified mail, postage prepaid, return receipt requested (such mailed notice to
before the date of such receipt is acknowledged), as follows:
If to Purchaser:
Western Wireless Corporation
2001 NW Sammamish Road, Suite 100
Issaquah, WA 98027
Attention: Cregg Baumbaugh
Fax: (206) 313-7731
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With a copy to:
Stokes Lawrence, P.S.
800 Fifth Avenue, Suite 4000
Seattle, WA 98104-3199
Attention: Douglas C. Lawrence
Fax: (206) 464-1496
If to Seller:
Corporate Telecom Services, Inc.
W.L. Pritchard & Co., Inc.
7315 Wisconsin Avenue, Suite #502 East
Bethesda, MD 20814
Attention: Dr. Wilbur L. Pritchard
With a copy to:
Haley Bader & Potts, P.L.C.
4350 North Fairfax Drive, Suite 900
Arlington, Virginia 22203-1633
Attention: Henry A. Solomon
Fax: (703) 841-2345
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others. All such notices and
communications shall be deemed to have been duly given at the time delivered by
hand, if personally delivered; five business days after being deposited in the
mail, first class postage prepaid, return receipt requested, if mailed; when
answered back, if telexed; when receipt confirmed, if sent by facsimile; and the
next business day after timely delivery to the courier, if sent by an over-night
air courier service guaranteeing next day delivery.
13.3. Specific Performance. The obligations of Seller and Purchaser
under this Agreement are unique. If either party should default in its
obligations under this Agreement, the parties acknowledge that it would be
extremely impracticable to measure the resulting damages; accordingly, in
addition to any other available rights or remedies,
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<PAGE> 17
either party may sue in equity for specific performance, and the parties
expressly waive the defense that a remedy in damages will be adequate.
13.4. Choice of Law. This Agreement shall be construed, interpreted and
the rights of the Parties determined in accordance with the laws of the State of
Delaware, except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
13.5. Entire Agreement; Amendments and Waivers. This Agreement, together
with all exhibits and schedules hereto, constitutes the entire agreement among
the parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
13.6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.7. Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument. If the
invalidity, illegality or unenforceability of any provision causes or is likely
to have a material adverse affect on the benefits of the bargain for either of
the parties then the parties agree to negotiate in good faith to re-establish
the relative benefits of the bargain, and if they are not able to do so within a
period of sixty (60) days after such provision is declared or found to be
invalid, illegal or unenforceable, then this Agreement shall become of no
further force or effect.
13.8. Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
13.9. Expenses. Except as otherwise expressly provided herein, Seller
shall be solely responsible for any sales and transfer Taxes, recording and
transfer fees arising from the purchase and sale of the Authorization pursuant
to this Agreement. Except as otherwise provided in this Agreement, Seller and
Purchaser will each be liable for its own
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<PAGE> 18
expenses incurred in connection with the negotiation, preparation, execution or
performance of this Agreement.
13.10. Exhibits. The Exhibits to this Agreement are a material part
hereof and shall be treated as if fully incorporated into the body of the
Agreement.
13.11. Publicity. Except as required by law or on advice of counsel,
neither party shall issue any press release or make any public statement
regarding the transactions contemplated hereby without the prior approval of the
other party.
13.12. Confidential Information. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to consultants, advisors and affiliates, or as required by law,
until such time as the parties make a public announcement regarding the
transaction as provided in Section 12.10 Seller and Purchaser shall not make any
public disclosure of the specific terms of this Agreement, except as required by
law.
SELLER: CORPORATE TELECOM SERVICES, INC.
By
----------------------------------------
Its
----------------------------------------
PURCHASER: WESTERN WIRELESS CORPORATION
By /s/ BOB STAPLETON
----------------------------------------
Its President, Western Wireless Corporation
----------------------------------------
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<PAGE> 19
expenses incurred in connection with the negotiation, preparation, execution or
performance of this Agreement.
13.10. Exhibits. The Exhibits to this Agreement are a material part
hereof and shall be treated as if fully incorporated into the body of the
Agreement.
13.11. Publicity. Except as required by law or on advice of counsel,
neither party shall issue any press release or make any public statement
regarding the transactions contemplated hereby without the prior approval of the
other party.
13.12. Confidential Information. The parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to consultants, advisors and affiliates, or as required by law,
until such time as the parties make a public announcement regarding the
transaction as provided in Section 12.10 Seller and Purchaser shall not make any
public disclosure of the specific terms of this Agreement, except as required by
law.
SELLER: CORPORATE TELECOM SERVICES, INC.
By /s/ WILBER L. PRITCHARD
----------------------------------------
Its President, Corporate Telecom Services
----------------------------------------
PURCHASER: WESTERN WIRELESS CORPORATION
By
----------------------------------------
Its
----------------------------------------
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Exhibits:
Seller's Counsel's Opinion - Exhibit 8.5
Seller's FCC Opinion - Exhibit 8.6
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<PAGE> 1
Exhibit 10.75
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of
June 10, 1998 by and between WWC Holding Co., Inc., a Delaware corporation
("Purchaser"), Celludyne II, Inc. a Nevada corporation ("Seller"), and Western
Wireless Corporation, a Delaware corporation, as guarantor pursuant to Section
15.2. Purchaser and Seller are sometimes referred to herein collectively as the
"Parties" and individually as a "Party."
RECITALS
WHEREAS, Seller is the holder of the non-wireline cellular radio
telephone license granted by the Federal Communications Commission (the "FCC" or
the "Commission") for the Colorado 4 - Park Rural Service Area, Market No. 351A
(the "System");
WHEREAS, the Parties desire that Purchaser acquire from Seller all of
the assets of the System including, among other things, all of the
authorizations issued by the FCC and, to the extent assignable, any state or
local government for the operation of the System, all in accordance with the
terms and conditions set forth in this Agreement; and
WHEREAS, the Parties have determined that it would further the
development of competitive, non-wireline cellular systems in the United States
to consummate the transactions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS
As used herein, the terms below shall have the following meanings:
1.1. "Action" shall have the meaning set forth in Section 5.11
1.2. "Affiliate" of a Person shall mean any Person which directly or
indirectly controls, is controlled by, or is under common control with, such
Person. The term "control" (including, with correlative meaning, the terms
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
<PAGE> 2
1.3. "Assets" shall mean all Seller's currently held assets, properties
and rights, both tangible and intangible, currently used in the System and
otherwise necessary to operate the Business of the System in a manner consistent
with its present operations including, without limitation, the Real Property,
Equipment, Authorizations, Contracts, Customer Agreements, Intellectual Property
and Books and Records; provided, however, that the Assets shall not include the
Excluded Assets; provided, further, that the Leadville Site, as defined in
Section 2.1.1, may be excluded from the Assets by Purchaser according to the
procedure in set forth in Section 2.1.1.
1.4. "Assumed Liabilities" shall have the meaning set forth in Section
3.1.2
1.5. "Authorizations" shall mean the authorizations, permits and
licenses issued to Seller by the FCC and any other governmental authority which
relate to the System.
1.6. "Books and Records" shall mean all the books and records currently
maintained by Seller or within Seller's control and related to the Assets, the
Business and the System, including without limitation, (a) books and records
relating to the purchase of materials and supplies, invoices, customer lists,
supplier lists, personnel records, and subscriber information, and (b) any
computer software and data in computer readable and/or human readable form used
to maintain such books and records together with the media on which such
software and data are stored and all documentation relating thereto, except for
any Excluded Assets.
1.7. "Business" shall mean all of the Seller's business and operations
relating to the System.
1.8. "Closing Date" shall mean the last business day of the month in
which the FCC Consent becomes a Final Order, unless the Final Order date occurs
within the last ten (10) calendar days of a month, in which case the Closing
Date shall be on the last business day of the month following the month in which
the FCC Consent becomes a Final Order.
1.9. "Closing Place" shall mean such location agreed upon by the Parties
or, in the absence of such an agreement, the offices of Stokes Lawrence, P.S.,
800 Fifth Avenue, Suite 4000, Seattle, Washington 98104-3199.
1.10. "Closing" shall mean the consummation of the assignment, transfer,
conveyance and delivery of the Assets and the Purchase Price as contemplated
hereunder.
1.11. "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.12. "Consents" shall mean any and all consents, approvals,
authorizations or waivers of any public, governmental or regulatory body or
authority, including, without limitation, the FCC Consent, and any and all
consents, approvals or waivers from parties to Contracts that are (a) required
for the consummation of the transactions contemplated
2
<PAGE> 3
by this Agreement or (b) necessary or, in Purchaser's reasonable determination,
desirable in order that Purchaser (or its designee) can operate the System after
the Closing Date substantially in the same manner in which it is being operated
by Seller before the Closing Date.
1.13. "Contracts" shall mean all leases, contracts, commitments,
understandings and agreements relating to the System to which Seller is a party
and which are set forth on Schedule 5.7, whether written or oral.
1.14. "Customer Agreements" shall mean those agreements which are
currently in effect whereby Seller has agreed to provide Service.
1.15. "Deferred Access Revenue" shall mean amounts collected in advance
by Seller from System subscribers for Service to be rendered to such subscribers
after the Closing Date and which are reflected as a Liability on Seller's
Financial Statements.
1.16. "Employees" shall mean all persons employed by Seller on a full or
part-time basis.
1.17. "Environmental Laws" shall mean any and all federal, state, local
or foreign statutes, rules, laws, regulations, ordinances, codes, orders,
licenses, franchises, permits, authorizations and concessions relating to
health, safety or the environment that are applicable to the System or the
Business, including without limitation the Handling of Substances, the presence
of Substances at an Operating Site or any antipollution requirements.
1.18. "Equipment" shall mean all of the Seller's furniture, fixtures,
furnishings, machinery, computer hardware, antennas, transmitters, and other
personal property used in the System or located at any of the Real Property,
except as listed on Schedule 1.19.
1.19. "Excluded Assets" shall mean those assets set forth on Schedule
1.19 hereto.
1.20. "FCC Consent" shall mean the action of the FCC granting its
consent to the assignment of the FCC Authorization from Seller to Purchaser.
1.21. "FCC Authorization" shall mean the Authorizations issued by the
FCC relating to the construction and operation of the System.
1.22. "Final Order" shall mean a Preliminary Order which is not
reversed, stayed, enjoined, set aside, annulled, or suspended, and with respect
to which no timely request for stay, motion or petition for reconsideration or
rehearing, application or request for review, or notice of appeal or other
judicial petition for review is pending, and as to which the time for filing any
such request, motion, petition, application, appeal, or notice, and for the
entry of an order staying, reconsidering, or reviewing on the FCC's or any other
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regulatory authorities' own motion, has expired. A Preliminary Order which is
not reversed, stayed, enjoined, set aside, annulled, or suspended, and with
respect to which no timely request for stay, motion or petition for
reconsideration or rehearing, application or request for review, or notice of
appeal or other judicial petition for review is pending, and as to which the
time for filing any such requests, motion, petition, application, appeal, or
notice, and for the entry of an order staying, reconsidering or reviewing on the
FCC's or any other regulatory authorities' own motion has expired, but which is
subject to conditions, other than conditions generally applied in conjunction
with the grant of such consents, which could materially and adversely affect the
Purchaser's operation of the System and the Business as it is currently being
conducted, is not (and shall not be deemed) a Final Order unless and until the
Party acquiring such FCC Authorization pursuant to the terms of this Agreement
has notified the assignor of such FCC Authorization of its acceptance of such
conditions; provided, however, that the assignee may not unreasonably withhold
its acceptance and may not, in any case, withhold its acceptance where the
conditions have been caused or materially contributed to by assignee's action or
inaction.
1.23. "Financial Statements" shall have the meaning set forth in Section
5.10
1.24. "Handling" shall have the meaning set forth in the definition of
Pre-Closing Environmental Matters in Section 1.32.
1.25. "Intellectual Property" shall mean all patents, trademarks,
service marks, trade names, copyrights, licenses, formulas, computer software,
advertising slogans, advertising technology, advertising techniques,
merchandising techniques, operating procedures, data and other intellectual
property rights or intangible property rights of Seller and its Affiliates which
are used or intended for use in connection with the System and which are
assignable, as listed on Schedule 5.8.
1.26. "Inventory" shall mean all merchandise owned by Seller and
intended for resale, whether or not located on the Seller's premises, on
consignment to a third party, or in transit or storage valued at its acquisition
cost. For purposes of this definition and this Agreement, any item set forth on
Schedule 1.26 shall be deemed "Inventory."
1.27. "Liabilities" shall mean liabilities, obligations or commitments
of any nature, absolute, accrued, contingent or otherwise, known or unknown,
whether matured or unmatured.
1.28. "Lien" shall mean any contract for sale (except for the sale of
cellular telephone service and rentals of cellular telephone equipment to
customers), claim, lease, lien, pledge, option, charge, easement, security
interest, mortgage, deed of trust, right-of-way, encumbrance or adverse interest
of any kind or character of any other Person relating to the Assets, System or
the Business, except for Permitted Liens.
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1.29. "Operating Site" shall have the meaning set forth in the
definition of Pre-Closing Environmental Matters in Section 1.32.
1.30. "Permitted Lien" shall mean (i) any lien for Taxes, assessments,
or other governmental charges or levies that are not yet due and payable or
which are being contested in good faith in appropriate proceedings, (ii)
easements, rights of way and other similar property rights which do not and will
not have a material adverse effect on Seller's or Purchaser's use in a similar
manner of any particular parcel of Real Property, and (iii) materialman and
workman's liens created by operation of law in the ordinary course of Seller's
Business for Liabilities which are reflected on the Seller's Financial
Statements, and for which Seller has received no notice of enforcement or
execution.
1.31. "Person" shall mean any person or entity, whether an individual,
trustee, corporation, general partnership, limited partnership, trust,
unincorporated organization, business association, firm, joint venture,
governmental agency or authority.
1.32. "Pre-Closing Environmental Matters" shall mean (a) the production,
use, generation, storage, treatment, recycling, disposal, discharge, release, or
other handling or disposition of any kind (collectively "Handling") at any time
on or prior to the Closing Date of any toxic, hazardous, or other regulated
wastes, substances, products (except for appropriate storage and use in
accordance with applicable Environmental Laws of (i) reasonable amounts of
gasoline or diesel fuel for the purpose of powering emergency electric power
generating equipment and (ii) standard commercial batteries used in the
operation of cell site equipment or cellular telephones), pollutants or
materials of any kind (including, without limitation, petroleum and petroleum
products, asbestos, and radon) (collectively "Substances"), either in, on, or
under any real property or facility currently owned, leased or used by Seller
(or an Affiliate of Seller) in connection with the System (an "Operating Site"),
including without limitation the effects of such Handling of Substances on
resources (e.g., air, water), Persons, or property within or outside the
boundaries of any Operating Site; (b) the presence as of the Closing Date of
Substances in, on or under any Operating Site regardless of how the Substances
carne to rest in, on or under the Operating Site, which presence violates
applicable Environmental Laws, (c) the failure on or prior to the Closing Date
of any Operating Site or any operations of the System to be in compliance with
any Environmental Laws, and (d) any other act, omission or condition existing
prior to the Closing Date which gives rise to liability or potential liability
of Purchaser under any Environmental Laws; provided, however, that this
paragraph shall not include any authorized use of the radio frequencies in
accordance with authorizations issued by the FCC to be employed by the Seller in
the conduct of the Business.
1.33. "Preliminary Order" shall mean an action by the FCC and any other
applicable state regulatory authority consenting to or authorizing the
assignment of the FCC or other Authorization or the Assets to Purchaser (or its
designee), which action has not yet become a Final Order.
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1.34. "Real Property" shall mean all real property owned or leased by or
used, or intended by Seller or its Affiliates for use, in connection with the
System, together with all Seller's rights to buildings, improvements, fixtures,
easements, licenses (to the extent assignable), options, insurance proceeds and
condemnation awards and all other rights of Seller or its Affiliates in or
appurtenant thereto, all of which are listed on Schedule 5.4.2.
1.35. "Representative" shall mean any officer, director, attorney,
accountant, employee or other duly authorized agent of any Person.
1.36. "Service" shall mean the cellular telephone service provided by
Seller in the ordinary course of business of operating the System.
1.37. "Substances" shall have the meaning set forth in the definition of
Pre-Closing Environmental Matters in Section 1.32.
1.38. "Taxes" shall mean all taxes, charges, fees, levies or other
assessments, including without limitation, income, excise, use, transfer,
payroll, occupancy, property, sales, franchise, unemployment and withholding
taxes, imposed by the United States or any state, county, local or foreign
government or subdivision or agency thereof on Seller's Business, the Assets or
the System, and any assessments against Real Property together with any
interest, penalties or additional taxes attributable to such taxes and other
assessments.
1.39. "To the best knowledge" or "knowledge" of a party (or similar
phrases) shall mean to the extent of matters (a) which are actually known by
such party or (b) which, based on facts of which such party is aware, would be
known to a reasonable Person in similar circumstances.
1.40. "Assignment Application" shall mean that joint application filed
with the FCC relating to the assignment of the FCC Authorizations to Purchaser
in the manner contemplated by this Agreement.
ARTICLE 2.
PURCHASE OF ASSETS
2.1. Transfer of Assets. Subject to Section 2.1.1 and satisfaction of
the other terms and conditions contained in this Agreement, at the Closing,
Seller shall sell, convey, transfer, assign and deliver to Purchaser (or its
designee), and Purchaser (or its designee) will acquire, the Assets.
2.1.1. Purchaser shall have the right to decline to assume
Seller's rights and obligations under that easement commonly known as the
Leadvillle Site Easement, dated
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___________, 199_, between Seller and ________ (the "Leadville Site"). If
Purchaser elects to exclude the Leadville Site from the Assets to be acquired by
it, it shall so notify Seller in writing of that decision within fifteen (15)
days of Purchaser's receipt of a completed phase II environmental study of the
Leadville Site, but in no event less than thirty (30) days prior to the Closing
Date. The exclusion of the Leadville Site from the Assets shall not exclude any
other Assets located on or at the Leadville Site, and shall not result in any
adjustment of the Purchase Price. Any expenses associated with the deactivation,
removal, storage or transport of the Leadville Assets as a result of Purchaser's
exercise of its right under this Section 2.1.1 shall be the responsibility of
Purchaser.
2.2. Purchase Price. The purchase price for the Assets shall be eighteen
million five hundred thousand dollars ($18,500,000) (the "Purchase Price"), as
adjusted pursuant to this Article 2, which shall be paid by Purchaser to Seller
(or its designee) on the Closing Date as follows: (i) one million dollars
($1,000,000) of such Purchase Price shall be delivered to an escrow agent
jointly selected by Purchaser and Seller that is located the in Southern
California, which amount shall be held by the escrow agent in escrow for a
period of one (1) year following the Closing Date pursuant to the terms of an
escrow agreement the terms of which shall be substantially similar to those
contained in the agreement attached hereto as Schedule 2.2. Such escrow shall
secure the obligations of Seller pursuant to the indemnification provisions
contained in Article 11 hereof; and (ii) the balance of such Purchase Price
shall be paid to Seller by certified or official bank check or by bank wire
transfer of immediately available funds, at the option of Seller.
2.3. Adjustments and Prorations.
2.3.1. Pursuant to the procedures prescribed in Sections 2.3.3
and 2.3.4, as the case may be, the Purchase Price shall be adjusted in
accordance with the following:
2.3.1.1. The Purchase Price shall be increased by the
current assets of Seller as of the Closing Date, which shall be the sum of (i)
Adjusted Accounts Receivable as of the Closing Date, (ii) Inventory, and (iii)
prepaid expenses (including rent, deposits and taxes) assigned to Purchaser. For
purposes of this Section 2.3, "Adjusted Accounts Receivable" shall equal the sum
of the following:
100% of the amount of all accounts receivable outstanding
from the date of billing ("Outstanding") for less than 31
days; plus
90% of the amount of all accounts receivable that are more
than 30 days Outstanding, but less than 61 days
Outstanding; plus
75% of the amount of all accounts receivable that are more
than 60 days Outstanding, but less than 91 days
Outstanding.
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There shall be no adjustment (i.e. 0%) for any accounts
receivable that are more than 90 days Outstanding.
2.3.1.2. The Purchase Price shall be decreased by the
current liabilities of the Seller as of the Closing Date, which shall be the sum
of (i) all Liabilities that relate to Seller's operation of the System, the
Business and the Assets on or prior to Closing (including, without limitation,
accounts payable, the current portion of any long-term Liabilities and accrued
and payable taxes), (ii) subscriber deposits, and (iii) Deferred Access Revenue
assumed by Purchaser; provided, however, it shall not include lease or contract
liabilities being assumed by Purchaser pursuant to Section 3.1.2 of this
Agreement.
2.3.2. In addition, all revenues and all expenses arising from
operation of the System before and after the Closing Date, including resale
charges and other expenses payable in respect to cellular telephone services,
utility charges, real and personal property taxes and assessments levied against
the Assets, property and equipment rentals, sales and service charges, taxes
(except for taxes arising from the transfer and assignment of the Assets
hereunder), and similar prepaid and deferred items, shall be prorated between
Seller and Purchaser in accordance with the principle that Seller shall receive
the benefit of all revenues, and be responsible for all expenses, costs,
obligations and liabilities associated with ownership and operation of the
System for the period on or prior to the Closing Date, and Purchaser shall
receive the benefit of all revenues, and be responsible for all expenses, costs,
obligations and liabilities associated with the ownership and operation of the
System after the Closing Date.
2.3.3. A final settlement of all adjustments or prorations made
under this Section, with payment being made by the appropriate Party in cash,
shall occur no later than sixty (60) days after the Closing Date. Within such
sixty (60) day period Purchaser shall provide Seller with a written statement,
together with reasonable supporting documentation, of any final adjustments or
prorations required by this Section 2.3.
2.3.4. In the event that the Parties cannot agree on the amount
of the final adjustments or prorations, the determination shall be made by the
Denver, Colorado office of one of the "Big 6" national accounting firms selected
by Seller that has not, during the prior three (3) years, been employed by
either of the Parties ("Auditor"). The Auditor shall make the determination
based on the express provisions of this Agreement; provided, however, that if
the Auditor finds the express terms of this Agreement are not sufficient to
resolve any issue or issues, the Auditor shall rely upon generally accepted
accounting principles then in effect. Either Party may invoke the use of the
Auditor by notifying the other Party in writing, provided that neither Party may
invoke the use of the Auditor to determine the final adjustments or prorations
earlier than forty (40) days after the Closing Date. The Auditor shall be
required to render a decision within twenty-one (21) days after the Auditor is
requested to render a determination under this Section. The decision of the
Auditor shall be binding on the Parties and not subject to any judicial
challenge by either
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Party. Within five (5) business days after the Auditor provides the
determination to the Parties, the final payment shall be made in accordance with
that determination. The expenses of the Auditor shall be paid by Seller and
Purchaser in reciprocal proportion to the allocation to Seller and Purchaser of
the amount in disagreement, as the case may be. For example, if the amount in
disagreement is One Hundred Thousand Dollars ($100,000) and the Auditor
determines that the Seller should receive Seventy Thousand Dollars ($70,000) and
the Purchaser should receive Thirty Thousand Dollars ($30,000), then Seller
shall pay thirty percent (30%) of the Auditor's expenses, and Purchaser shall
pay seventy percent (70%).
2.4. Allocation of Purchase Price. The Purchase Price, as adjusted
pursuant to Section 2.3, shall be allocated in accordance with Schedule 2.4, to
be prepared on or before the Closing and Purchaser and Seller agree to cooperate
reasonably in the preparation of such Schedule. Each of the Parties agrees that
(i) such allocation represents the fair market value of the Assets and shall be
binding upon it; (ii) no filings made by it with any taxing or other authority
shall reflect an allocation other than in the manner agreed upon; and (iii) it
shall timely make all filings required by any taxing authority, including the
filing of Internal Revenue Service Form 8594. A preliminary allocation is
attached as Schedule 2.4. The final allocation shall be generally consistent
with Schedule 2.4.
ARTICLE 3.
ASSUMED OBLIGATIONS
3.1. No Assumption of Liabilities by Purchaser.
3.1.1. Except (i) for Liabilities for which there is an
adjustment in the Purchase Price pursuant to Section 2.3.1.2, and (ii) as set
forth in Section 3.1.2 below, Purchaser expressly does not, and shall not,
assume or be deemed to have assumed under this Agreement, or by reason of any
transactions contemplated hereunder, any debts, liabilities (contingent or
otherwise) or obligations of Seller, or any of its stockholders, of any nature
whatsoever or any debts, liabilities (contingent or otherwise) or obligations
relating to the System.
3.1.2. Purchaser shall assume and timely pay or perform all of
Seller's liabilities and obligations (i) for which there has been an adjustment
in the Purchase Price pursuant to Section 2.3.1.2 and (ii) which are due after
the Closing Date on those Contracts and obligations set forth on Schedule 3.1.2
(the "Assumed Liabilities").
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ARTICLE 4.
COVENANTS AND AGREEMENTS
4.1. Covenants of Seller. Seller covenants and agrees from and after the
execution and delivery of this Agreement to and including the Closing Date as
follows:
4.1.1. Consummate Transactions. Seller shall use its reasonable
best efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof, and, without limiting the
generality of the foregoing, use best efforts to obtain all necessary approvals,
consents, permits, licenses and other authorizations required in connection with
this Agreement and the transactions contemplated hereby, including, without
limitation, those required by all governmental authorities and agencies, and to
make all filings with and to give all notices to third parties which may be
necessary or reasonably required of Seller in order to consummate the
transactions contemplated hereby.
4.1.2. Full Access. Seller shall give to Purchaser and its
Representatives reasonable access during normal business hours to all of
Seller's Employees, premises, properties, Assets, Financial Statements, Books
and Records, Contracts, and other documents and commitments relating to the
System and the Business, and shall furnish Purchaser and its Representatives
with all such information concerning the operation of the System and the
Business as Purchaser may reasonably request. This shall specifically include
access to Employees responsible for (and Books and Records relating to) billing,
customer service, and maintenance components of System operations. To the extent
reasonably requested by Purchaser, Seller shall cooperate with and assist
Purchaser in developing a comprehensive transition plan for the Business and
System operations.
4.1.3. Ordinary Course. Seller shall cause the Business to be
conducted only in the ordinary course and consistent with past practices.
Without limiting the foregoing, Seller shall continue to pay its bills and other
obligations, all in the ordinary course of business consistent with past
practices, and shall not, without the prior written consent of Purchaser, (a)
incur any material obligation or liability, absolute or contingent, other than
obligations (i) incurred in the ordinary course consistent with past practices
and (ii) to Seller's brokers, attorneys and accountants, all of which shall be
paid by Seller; (b) assume, guarantee, change any existing guarantee, endorse or
otherwise as an accommodation become responsible for obligations of any other
individual or entity; (c) make any loans or advances to any individual or
entity; (d) sell, transfer, convey, mortgage, pledge, hypothecate or subject to
any Liens (except Permitted Liens) any of the Assets; (e) waive or compromise
any right or claim for any material amount; (f) cancel any note, loan or other
material obligation owing to Seller; (g) enter into any Contract with the
shareholders of Seller or any of its Affiliates, consultants, agents or assigns,
or any material Contract with any other Person other than Service agreements
with subscribers in the ordinary course; (h) agree to pay any new or additional
compensation of any type to
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any of Seller's Representatives or to increase or modify any compensation
currently so paid; (i) make any arrangement for any profit-sharing plan,
retirement plan, bonus plan, severance arrangement, employee benefit plan, or
any similar plan; (j) except as required by law, enter into any collective
bargaining agreement, or make any commitment whatsoever to any union or other
representative or party which intends to represent any Employees; (k) increase
the number of Employees; (l) enter into any additional reseller agreements; or
(m) add subscribers other than in the ordinary course on terms and conditions
consistent with past practices (which shall include the obtaining of
satisfactory credit information, regular equipment and/or Service deposits,
executed subscriber contracts, and a commitment to the provision of Service for
cash consideration); provided that consistent with past practices Seller may
respond in good faith and in a manner consistent with reasonable business
practices to competitive service offerings initiated by its competitors. For
purposes of this Section the term "material" shall mean an obligation or
liability in excess of Twenty-Five Thousand Dollars ($25,000).
4.1.4. Preserve Business and Goodwill. Seller shall use its best
efforts to retain Seller's current Representatives, to preserve and maintain the
Assets and the System, to preserve the Business and the goodwill of suppliers,
subscribers and others dealing with Seller.
4.1.5. Compliance with Law. Seller shall comply in all material
respects with all applicable laws, rules, ordinances, regulations, codes,
orders, decrees, licenses and permits of all applicable jurisdictions and
governmental authorities or agencies relating to Seller, the Assets or the
conduct of the Business.
4.1.6. Approvals; Consents. Seller shall obtain and maintain in
full force and effect all approvals, consents, permits, licenses and other
authorizations, from all appropriate Federal, state and local governmental
agencies or authorities necessary or required for the operation of Seller's
Business as presently conducted, as and when such approvals, consents, permits,
licenses or other authorizations are necessary or required. Without limiting the
generality of the foregoing, Seller shall maintain the Authorizations in full
force and effect, and shall not take any action which might have a material
adverse effect on the continued effectiveness of such Authorizations. The
Parties shall consult with one another concerning the process for obtaining any
consent of any governmental agency or authority required to carry out the
transactions contemplated hereby, and each Party shall keep each other Party
reasonably informed as to the status of any communications with any governmental
authority or agency concerning such consent. Seller shall not make any material
commitments to any governmental authority or agency relating to any approval,
consent, permit or license without Purchaser's prior written consent.
4.1.7. Insurance. From the date hereof through the Closing Date,
Seller shall maintain in full force and effect (including necessary renewals
thereof) all of the insurance policies set forth on Schedule 4.1.7. From and
after the Closing Date, Seller shall take all actions that may be reasonably
necessary to ensure that such policies will
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continue to provide insurance coverage for claims relating to occurrences prior
to the Closing Date and shall take all actions reasonably necessary to preserve
or protect Seller's rights under any such policies with respect to any existing
claim against Seller arising out of Seller's ownership and operation of the
Assets or Business prior to the Closing Date. Seller shall provide Purchaser
with information and records regarding all claims pending with respect to the
Assets or Business as of the Closing Date and agrees to provide to Purchaser any
additional information and records Purchaser may reasonably request regarding
such claims.
4.1.8. Books and Records. Seller's Books and Records shall be
maintained in the ordinary course, on a basis consistent with past practices.
4.1.9. Notice of Claims. Seller shall notify Purchaser promptly
after it becomes aware of the commencement of any action, investigation,
arbitration or proceeding (including any proceeding before any governmental
agency), or promptly upon receiving a threat of any such action, investigation,
arbitration or proceeding which would, if adversely determined, materially and
adversely affect (a) Seller's ability to consummate the transactions
contemplated hereby or (b) the Business, System or Assets.
4.1.10. Notice of Breaches. In the event that Seller obtains
knowledge of the occurrence of, or the impending or threatened occurrence of,
any event which would cause or constitute a breach of any warranties,
representations, covenants or agreements of the Seller contained in this
Agreement, Seller shall promptly notify Purchaser of such occurrence or
impending or threatened event or occurrence, and use its best efforts to prevent
or to promptly remedy any such breach.
4.1.11. Material Contracts. Seller shall not default in any
material respect under, or breach any term or provision of, or suffer or permit
to exist any condition or event which, after notice or lapse of time, or both,
would constitute a material default under, any material Contract.
4.1.12. No Amendment or Termination of Material Contracts. Seller
shall not cause or permit, to the extent preventable by Seller, the termination,
modification or amendment of any material Contract of Seller.
4.1.13. No Sale. Seller shall not enter into any contract to sell
or encumber any of its Assets other than in the ordinary course of business.
4.1.14. Retention of Records. To the extent not previously
provided, on the Closing Date, Seller shall deliver to Purchaser all the Books
and Records and Contracts. In addition, for a period of three (3) years after
the Closing Date, Seller shall provide Purchaser with access to any other
financial records and other documents that relate to the System, the Assets or
the Business that Seller has retained. Such access shall be provided during
normal business hours after reasonable advance request by Purchaser.
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4.2. Covenants of Purchaser. Purchaser covenants and agrees that from
and after the execution and delivery of this Agreement to and including the
Closing Date:
4.2.1. Consummate Transaction. Purchaser shall preserve and
maintain its eligibility to be an assignee of the FCC Authorizations and use its
best efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof, and, without limiting the
generality of the foregoing, use best efforts to assist Seller in obtaining all
necessary consents and authorizations of third parties, including, without
limitation, the approval of this Agreement and the transactions contemplated
hereby by all governmental authorities and agencies, including the FCC and any
state public utilities or public service commission, and to make all filings
with and to give all notices to third parties which may be necessary or
reasonably required of Purchaser in order to consummate the transactions
contemplated hereby.
4.2.2. Purchaser Not to Control. Notwithstanding any other
provision of this Agreement that may be construed to the contrary, pending the
consummation of the Closing, Seller shall maintain actual (de facto) and legal
(de jure) control over the System. Specifically, and without limitation, the
responsibility for the operation of Seller and the System shall, pending the
Closing, reside with the Board of Directors of Seller, including, but not
limited to, responsibility for the following matters: (a) access to and the use
of the facilities of and equipment owned by Seller; (b) control of the daily
operation of the System; (c) creation and implementation of policy decisions;
(d) employment and supervision of employees; (e) payment of financing
obligations and expenses incurred in the operation of the System; (f) receipt
and distribution of monies and profits derived from the operation of the System;
and (g) execution and approval of all contracts and applications prepared and
filed before regulatory agencies.
4.3. Governmental Filings. Each of Seller and Purchaser covenant and
agree from and after the execution and delivery of this Agreement to and
including the Closing Date that the Parties have filed or shall file with the
FCC, and, if necessary, will file with any applicable state public utilities or
public service commission, or any other relevant state agency or agencies, as
soon as practicable following the date hereof, joint applications requesting the
approval of the transfer and assignment of the Assets to Purchaser, and, if
applicable, shall file all necessary applications with the Department of Justice
and/or the Federal Trade Commission pursuant to the Antitrust Improvement Acts
of 1976, as amended ("HSR Act"). Each of the Parties hereto shall diligently
take or cooperate in the taking of all steps which are necessary or appropriate
for the prosecution and favorable consideration of such applications. The
Parties covenant and agree to undertake all actions and file such material as
shall be reasonably necessary or required to obtain any necessary waivers or
other authority in connection with the foregoing applications.
4.4. Forest Service Special Use Permits. Purchaser acknowledges that the
U.S. Forest Service Special Use Permits ("SPU") for the Mount Princeton,
Granite, Fairplay and Badger Mountain cell sites are not assignable and that,
under U.S. Forest Service
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procedures, Purchaser will have to make application for and receive its own SPUs
for each such cell site. Purchaser agrees to make application to the appropriate
office of the U.S. Forest Service to obtain such SPUs within ten (10) business
days of the date of this Agreement so long as Seller provides assistance and
cooperation in providing all necessary documentation relating to the existing
SPUs, and appropriate contact information. Receipt of new SPUs issued in the
name of Purchaser shall be a condition to Closing; however, Purchaser may close
at its election if it receives a written commitment from the U.S. Forest
Service, in form satisfactory to Purchaser, that ensures that the SPUs will be
issued in a timely manner after the Closing.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to
Purchaser, all of which have been relied upon by Purchaser in entering into this
Agreement and the truth and accuracy of which shall constitute a condition
precedent to the obligations of Purchaser hereunder:
5.1. Organization and Standing. Seller (a) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, (b) has full corporate power and authority to enter into and
perform this Agreement, to own, lease and operate the System and the Assets and
to carry on the Business associated with the Assets as now being conducted and
proposed to be conducted by it under existing agreements, and (c) is duly
qualified to do business and is in good standing as a foreign corporation in
every jurisdiction in which the nature of the business conducted by it requires
such qualification, except where the failure to so qualify would not materially
adversely effect the System, the Business or the Assets.
5.2. Authorization and Binding Obligations. The execution, delivery and
performance of this Agreement by Seller have been duly and validly authorized by
all necessary corporate action, including approval of the entire transaction by
the requisite vote of the board of directors of Seller. This Agreement has been
duly executed and delivered by Seller and constitutes a valid and binding
agreement of Seller enforceable against it in accordance with its terms, except
as its enforceability may be limited by bankruptcy, insolvency, moratorium or
other laws relating to or affecting creditors' rights generally and the exercise
of judicial discretion in accordance with general equitable principles.
5.3. No Contravention. Except as otherwise contemplated hereunder, the
execution, delivery and performance of this Agreement, the consummation of the
transactions contemplated hereby and the compliance with the provisions hereof
by Seller will not (a) violate any provisions of the corporate charter or
by-laws of Seller, (b) result in the breach of, or constitute a default under,
or result in the creation of any lien, charge or
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encumbrance upon any of the Assets under the provisions of any agreement or
other instrument to which Seller is a party or by which the Assets or Business
of Seller is bound or affected or (c) violate any laws, regulations, orders or
judgments applicable to Seller.
5.4. Title to Assets.
5.4.1. Schedule 5.4.1 is a list of all tangible personal property
included in the Assets. Seller has good and marketable title to all the tangible
personal property to be transferred by it hereunder, free and clear of all
Liens, except for and subject only to Permitted Liens.
5.4.2. Schedule 5.4.2 is a list of all the Real Property. Seller
has good and marketable title to all of the Real Property which it owns and is
to be transferred by it hereunder, free and clear of all Liens, except for and
subject only to (a) Permitted Liens listed on Schedule 5.4.2, (b) the leases
listed on Schedule 5.4.2,none of which is violated by existing structures or
impairs Seller's use and none of which materially impairs or pursuant to its
terms would materially impair the present operations of the System or the
present use of such property by Seller, and (c) those other Liens set forth in
Schedule 5.4.2. All of the Liens, other than the Permitted Liens, shall be
removed on or prior to the Closing Date.
5.4.3. The Assets include all assets (except the Excluded Assets)
which are reasonably necessary to conduct the Business and operations of the
System as presently conducted.
5.5. Condition of the Equipment. The Equipment is in good operating
condition and repair, ordinary wear and tear excepted, is being used for the
purposes for which it was intended to be used, and to Seller's knowledge its use
and operation is in material compliance with all applicable federal, state and
local statutes, ordinances and regulations, including the rules and regulations
of the Commission and all applicable zoning ordinances, rules and regulations,
and Seller has no knowledge and has received no notice that Seller or its
present use of the Equipment or any other Asset is in violation in any material
respect of applicable statutes, ordinances and regulations.
5.6. Authorizations. To Seller's knowledge, the Authorizations listed on
Schedule 5.6 are all of the licenses, permits, and other authorizations
necessary to operate the System, the Business and the Assets as they are now
operated. The Authorizations were duly issued in the normal course in the name
of Seller and are in full force and effect. Except as set forth on Schedule 5.6,
the Authorizations have not been and are unimpaired by any acts or omissions of
Seller (or any of its Representatives) and the Authorizations are free and clear
of any restrictions which might limit the operation of the System. The FCC
actions granting the current FCC Authorizations to operate the System together
with all underlying FCC construction permits have not been reversed, stayed,
enjoined, set aside, annulled, or suspended and those grants have now become
Final Orders.
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5.7. Contracts. Schedule 5.7 is a list of all Contracts other than
Customer Agreements. Each Contract is in full force and effect, paid currently,
and has not been materially impaired by any acts or omissions of Seller or any
of its Representatives. Except as set forth on Schedule 5.7, no Contract
requires the consent of any other contracting party to the transactions
contemplated by this Agreement. Seller is not (and, to its best knowledge, no
other party is) in material breach or violation of, or default under any of the
Contracts. Seller is not aware of any intent by any party to any Contract to
terminate or amend the terms thereof or to refuse to renew any Contract upon the
expiration of its term. Seller has delivered to Purchaser true and correct
copies of all the Contracts (or in the case of oral contracts, true and correct
descriptions thereof). Purchaser is under no obligation to assume the
obligations under those Contracts which Purchaser notifies Seller that Purchaser
chooses not to assume not later than fourteen (14) days after the Parties'
execution of this Agreement.
5.8. Intellectual Property. Schedule 5.8 is a list of all Intellectual
Property. No person has a right to receive a royalty or similar payment in
respect of any Intellectual Property other than as indicated on Schedule 5.8
Seller has no licenses granted by or to it, or any other agreements to which it
is a party, relating in whole or in part to any of the Intellectual Property
other than as indicated on Schedule 5.8 To Seller's best knowledge, Seller's use
of the Intellectual Property is not infringing upon or otherwise violating the
rights of any third party, and no proceedings have been instituted against or
notices received by Seller alleging that such use of the Intellectual Property
infringes upon or otherwise violates any rights of a third party.
5.9. Employees; Employment Obligations. Seller and/or the System
currently employs those persons in those positions and at those salaries
(including benefits) as are listed on Schedule 5.9. Except as otherwise set
forth on such Schedule 5.9, Seller and the System are not bound, and at no time
have been bound, by any oral or written collective bargaining agreement,
severance, pension, retirement, profit-sharing, 401(k), "employee benefit plan"
(within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended), or other employment agreement (other than any
agreements terminable on thirty (30) days' or less notice without penalty or
severance obligation) with any officer, employee or consultant, nor does Seller
or the System have any liability under any such agreement which was terminated
previously. Seller has complied in all material respects with all applicable
laws, rules and regulations which relate to prices, wages, hours, discrimination
in employment and collective bargaining and to the operation of the System and
is not liable for any arrears of wages or any taxes or penalties for failure to
comply with any of the foregoing. With respect to each "employee benefit plan,"
if any, within the meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), which is now, or ever has been,
maintained, contributed to, or required to be contributed to by Seller, such
employee benefit plan has been established and maintained in all material
respects in accordance with its terms and in compliance with all applicable
laws, statutes, orders, rules and regulations, including but not limited to
ERISA. Seller is not a party to, and is not affected by or, to the best of
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Seller's knowledge, threatened with, any dispute or controversy with a union or
with respect to unionization or collective bargaining involving the employees of
Seller or the System.
5.10. Financial Statements. Attached hereto as Schedule 5.10 is a list
of unaudited financial reports relating to the System ("Financial Statements").
Schedule 5.10 also lists documents which set forth the available historical data
on System subscribers and their local and roaming minutes of use of Services
("Operating Data Statements"). On a monthly basis Seller will provide to
Purchaser updated, unaudited Financial Statements and Operating Data Statements
covering periods between execution hereof and the Closing Date. All Financial
Statements are (or shall be) true and correct in all material respects, have
been (or shall have been) prepared from the books and records of Seller and
fairly present (or shall fairly present) the financial position of Seller in a
manner consistent with prior periods as of the dates of such statements and the
results of the Business operations and statements of cash flow for the year or
interim period then ended, in each case in conformity with generally accepted
accounting principles then in effect. Seller has not incurred nor is it subject
to any liabilities or obligations, whether accrued, absolute or contingent,
which are not required to be disclosed in the Financial Statements and are not
so disclosed. All Operating Data Statements are (or shall be) accurate in all
material respects.
5.11. Litigation. Except as set forth on Schedule 5.11, there is no
action, order, writ, injunction, judgment or decree outstanding or claim, suit,
litigation, proceeding, or labor dispute ("Action"), other than rule making
proceedings affecting the cellular telephone industry generally, pending or, to
the knowledge of Seller, threatened or anticipated against, relating to or
involving (a) Seller, (b) the Assets, (c) the Business, or (d) the transactions
contemplated by this Agreement. Seller is not in material default with respect
to any material judgment, order, writ, injunction or decree of any court or
governmental agency relating to or involving (i) Seller, (ii) the Assets, (iii)
the Business, or (iv) the System, and there are no unsatisfied judgments against
Seller or the Assets. There is not a reasonable likelihood of an adverse
determination of any pending Action which would, individually or in the
aggregate, have a material adverse effect on the Assets or the Business or the
financial condition of Seller.
5.12. Complaints. There is not, to the best of Seller's knowledge, any
Commission investigation, notice of apparent liability or order of forfeiture
pending or outstanding against Seller or the System respecting any violation, or
allegation thereof, of any Commission rule, regulation or policy, or, to the
best of Seller's knowledge, any complaint before the Commission as a result of
which an investigation, notice of apparent liability or order of forfeiture may
issue from the Commission relating to the System.
5.13. Reports. Except as set forth in Schedule 5.13 hereto, Seller has
filed and complied with all returns, reports and statements currently required
to be filed by Seller with the Commission or with any other governmental agency
with respect to the System.
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Seller shall continue to make and comply with such filings until the Closing
Date. All such reports, returns and statements are (or will be, in the case of
future reports) substantially complete and correct as filed.
5.14. Taxes. Except as disclosed on Schedule 5.14, Seller has filed, or
caused to be filed, with the appropriate federal, state and local governmental
agencies all required tax and information returns and reports which are due or
required to be filed at the date hereof, and Seller has paid, caused to be paid
or accrued all Taxes shown to be due and payable or claimed to be due and
payable thereon to the date hereof. Except as disclosed on Schedule 5.14, Seller
has no liability material in amount, contingent or otherwise, for any Taxes.
Except as disclosed on Schedule 5.14 hereto, Seller has received neither notice
of nor is otherwise aware of any audit or examination relating to its Taxes; nor
is Seller a party to any action or proceeding by any governmental authority for
assessment or collection of Taxes; nor has any claim for assessment and
collection been asserted against Seller, nor has Seller executed a waiver of any
statute of limitations with respect thereto. Seller has not received any notices
and is not otherwise aware of any deficiencies, adjustments or changes in
assessments with respect to any Taxes other than as set forth on Schedule 5.14
hereto. No extensions of time are in effect for the assessment of deficiencies
for Taxes in respect of any fiscal period.
5.15. No Other Agreements to Sell the System or the Assets. Seller has
no legal obligation, absolute or contingent, to any other person or firm to sell
the Assets or to sell any capital stock of Seller or to effect any merger,
consolidation or other reorganization of Seller or to enter into any agreement
with respect thereto.
5.16. Resale and Roaming Agreements. Schedule 5.16 contains a list of
all resale agreements to which Seller is a party, both as reseller and as a
provider of resale services to others. Schedule 5.16 also contains a list of all
roaming agreements to which Seller is a party. All such resale and roaming
agreements are in full force and effect and reflect terms reasonable and
customary in the cellular telephone industry as of the time they were entered
into.
5.17. Environmental Matters. Except as set forth in Schedule 5.17,
5.17.0.1. there is and has been no handling of any Substances at, on, or from
any Operating Site; (a) there is and has been no presence of Substances on or
under any Operating Site regardless of how the Substance or Substances came to
rest there; (b) no underground tanks, PCBs or asbestos-containing materials are
or have been located on or under any Operating Site; (c) neither Seller nor any
Person acting on behalf of Seller has released any other Person from any claims
Seller might have, or have had, for any matter relating to presence or Handling
of Substances at any Operating Site; (d) no Liens have been, or are, imposed on
any of the Assets under any Environmental Laws; and (e) Seller has obtained all
permits, licenses, registrations, and other approvals and has made all reports
and notifications required under any Environmental Laws in connection with the
Assets, and is in compliance in all material respects with all applicable
Environmental Laws; provided, however, that the
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representations and warranties in this Section regarding acts or omissions by
parties other than Seller are made to the best knowledge of Seller. Schedule
5.17 hereto also contains a list and brief description of all filings by Seller
with, notices to Seller from, and related reports to all governmental
authorities administering Environmental Laws, within three (3) years prior to
the date hereof, including without limitation, filings made, corrective action
taken, or citations received by Seller.
5.18. Brokers. Seller has entered into an agreement with Daniels &
Associates, Inc. to assist it with this transaction. Seller shall be solely
responsible for all fees and costs payable to, or as a result of using, such
broker. Seller shall not enter into any arrangement or understanding with any
person or firm which will result in the obligation of Purchaser to pay any
finder's fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.
5.19. Miscellaneous. No representation or warranty made by Seller in
this Agreement, and no statement made in any schedule, exhibit, certificate or
other document furnished pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or knowingly omits or fails to state, or
will knowingly omit or fail to state, any material fact or information necessary
to make such representation or warranty or any such statement not materially
misleading.
5.20. No Material Adverse Change. Since the date of the most recent
Financial Statements, which is March, 1998, there has not been:
5.20.1. any issuance, assumption or guarantee by Seller of
material indebtedness other than pursuant to agreements or binding
commitments in existence on the date hereof and set forth or described
on Schedule 5.20.1;
5.20.2. the creation by Seller of any Lien (other than a
Permitted Lien) on any material Asset other than pursuant to agreements
or binding commitments in existence on the date hereof and set forth or
described on Schedule 5.20.2;
5.20.3. any making of any loan, advance or capital contribution
to or investment in any Person by Seller;
5.20.4. any damage, destruction or other casualty loss affecting
the Business or the Assets which, after giving effect to payments to
Seller under applicable insurance policies, has had or is likely to have
a material adverse effect on Seller, the System, or the Business; or
5.20.5. any change by Seller in its accounting principles or
methods.
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ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby makes the following representations and warranties to
Seller, all of which have been relied upon by Seller in entering into this
Agreement and the truth and accuracy of which shall constitute a condition
precedent to the obligations of Seller hereunder:
6.0.1. Organization and Standing. Purchaser (a) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation, (b) has full corporate power and authority to enter into and
perform this Agreement, and, subject to receipt of the Consents, to own, lease
and operate the System and Assets and to carry on the Business associated with
the Assets as now being conducted, and (c) is duly qualified to do business and
is in good standing as a foreign corporation in every jurisdiction in which the
nature of the business conducted by it requires such qualification, except where
the failure to so qualify would not materially adversely affect Purchaser.
6.1. Authorization and Binding Obligations. The execution, delivery and
performance by Purchaser of this Agreement has been duly and validly authorized
by all necessary corporate action, including any necessary approval of the
entire transaction by the board of directors of Purchaser. This Agreement has
been duly executed and delivered by Purchaser and constitutes a valid and
binding agreement of Purchaser, enforceable against Purchaser in accordance with
its terms except as its enforceability may be limited by bankruptcy, insolvency,
moratorium or other laws relating to or affecting creditors' rights generally
and the exercise of judicial discretion in accordance with general equitable
principles.
6.2. No Contravention. Except as otherwise contemplated hereunder, the
execution, delivery and performance of this Agreement, the consummation of the
transactions contemplated hereby and the compliance with the provisions hereof
by Purchaser will not (a) violate any provisions of the corporate charter or
by-laws of Purchaser, (b) result in the breach of, or constitute a default under
the provisions of any agreement or other instrument to which Purchaser is a
party or by which the property of Purchaser is bound or affected or (c) violate
any laws, regulations, orders or judgments applicable to Purchaser.
6.3. Litigation. Except as set forth on Schedule 6.3, there is no
Action, other than rule making proceedings affecting the cellular telephone
industry generally, pending or, to the knowledge of Purchaser, threatened or
anticipated against, relating to or involving Purchaser that would have a
material adverse effect Purchaser's ability to consummate the transactions
contemplated by this Agreement. Purchaser is not in material default with
respect to any material judgment, order, writ, injunction or decree of any court
or governmental agency, and there are no unsatisfied judgments against
Purchaser.
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There is not a reasonable likelihood of an adverse determination of any pending
Action which would, individually or in the aggregate, have a material adverse
effect on Purchaser's ability to consummate the transactions contemplated by
this Agreement.
6.4. Brokers. Neither Purchaser nor any of its Affiliates has entered
into or will enter into any contract, agreement, arrangement or understanding
with any person or firm which will result in the obligation of Seller to pay any
finder's fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.
6.5. Purchaser Qualifications. Purchaser is legally, technically,
financially and otherwise qualified under the Communications Act of 1934, as
amended, to hold the FCC Authorizations and to consummate the transactions
contemplated hereby. Purchaser has no knowledge of any fact that would, under
existing law (including the Communications Act), disqualify Purchaser as an
assignee of the FCC Authorizations.
6.6. Financial Capability. Purchaser has available or shall have
available on the Closing Date sufficient funds to consummate the transactions
contemplated by t his Agreement, including without limitation, payment of the
Purchase Price and Purchaser shall be solvent on the Closing Date with the
financial capability to meet its other obligations when they become due.
6.7. Knowledge of Claims. As of the date hereof, Purchaser has no actual
knowledge of any breach of the representations and warranties of Seller
contained in this Agreement.
6.8. Miscellaneous. No representation or warranty made by Purchaser in
this Agreement, and no statement made in any schedule, exhibit, certificate or
other document furnished pursuant to this Agreement, contains or will contain
any untrue statement of a material fact or knowingly omits or fails to state, or
will knowingly omit or fail to state, any material fact or information necessary
to make such representation or warranty or any such statement not materially
misleading.
ARTICLE 7.
CONDITIONS PRECEDENT TO OBLIGATION OF SELLER TO CLOSE
The obligations of Seller to sell the Assets and to otherwise consummate
the transactions contemplated by this Agreement are subject, in the discretion
of Seller, to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
7.1. Representations, Warranties and Covenants. All representations and
warranties of Purchaser contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date as if such representations
and warranties
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were made at and as of the Closing Date, and Purchaser shall have performed in
all material respects all agreements and covenants required hereby to be
performed by it prior to or at the Closing Date. There shall be delivered to
Seller a certificate (signed by a senior officer of Purchaser) to the foregoing
effect ("Purchaser's Closing Certificate").
7.2. Closing Documents. Seller shall have received from Purchaser the
documents and other items to be delivered by Purchaser pursuant to Section 9.2
of this Agreement.
7.3. Opinion of Purchaser's Corporate Counsel. Purchaser shall have
delivered to Seller an opinion or opinions of counsel for Seller in
substantially the form attached hereto as Schedule 7.3.
7.4. Receipt of Payment. Seller shall have received payment of the
Purchase Price in accordance with Article 2 hereof.
7.5. HSR Waiting Period. Any waiting period required by the HSR Act
shall have lapsed or been terminated, and any investigation of the transactions
contemplated by this Agreement commenced by the Department of Justice and/or the
Federal Trade Commission pursuant to the HSR Act shall have been terminated.
7.6. FCC Consents. The FCC and any other required Consents from
government authorities shall have been granted by Final Orders.
ARTICLE 8.
CONDITIONS PRECEDENT TO OBLIGATION OF PURCHASER TO CLOSE
The obligations of Purchaser to purchase the Assets and to otherwise
consummate the transactions contemplated by this Agreement are subject, in the
discretion of Purchaser, to the satisfaction, on or prior to the Closing Date,
of each of the following conditions:
8.1. Representations, Warranties and Covenants. All representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects at and as of the Closing Date as if such representations
and warranties were made at and as of the Closing Date, and Seller shall have
performed in all material respects all agreements and covenants required hereby
to be performed by Seller prior to or at the Closing Date. There shall be
delivered to Purchaser a certificate (signed by the President or a Vice
President of Seller) to the foregoing effect ("Seller's Closing Certificate").
8.2. Consent. The FCC Consent shall have become a Final Order.
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8.3. Closing Documents. Purchaser shall have received from Seller the
documents and other items to be delivered by Seller pursuant to Section 9.1
hereof.
8.4. Opinion of Seller's Corporate Counsel. Seller shall have delivered
to Purchaser an opinion or opinions of counsel for Seller in substantially the
form attached hereto as Schedule 8.4, or such other form as is reasonably
acceptable to Purchaser.
8.5. Opinion of Seller's Regulatory Counsel. Seller shall have delivered
to Purchaser an opinion of FCC counsel for Seller in substantially the form
attached hereto as Schedule 8.5.
8.6. HSR Waiting Period. Any waiting period required by the HSR Act
shall have lapsed or been terminated, and any investigation of the transactions
contemplated by this Agreement commenced by the Department of Justice and/or the
Federal Trade Commission pursuant to the HSR Act shall have been terminated.
ARTICLE 9.
THE CLOSING
On the Closing Date at the Closing Place:
9.1. Deliveries by Seller to Purchaser. Seller shall deliver to
Purchaser the following, all in a form and to the extent reasonably requested by
Purchaser:
9.1.1. one or more assignments transferring to Purchaser (or its
designee) all of Seller's interest in and to the Authorizations;
9.1.2. one or more instruments of conveyance transferring to
Purchaser (or its designee) all of Seller's interest in and to the Equipment and
the Books and Records;
9.1.3. one or more assignments or other instruments of conveyance
transferring to Purchaser (or its designee) Seller's interest in and to the
Intellectual Property;
9.1.4. one or more instruments of conveyance transferring to
Purchaser (or its designee) the Contracts in effect on the Closing Date;
9.1.5. one or more executed warranty deeds and assignments in
recordable form, transferring to Purchaser (or its designee) Seller's interest
in and to the Real Property;
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9.1.6. one or more instruments of conveyance transferring to
Purchaser (or its designee) any of the other Assets not otherwise conveyed as
provided above;
9.1.7. the opinions of Seller's counsel referenced in Sections
8.4 and 8.5 hereof;
9.1.8. a copy of the resolutions of the board of directors of
Seller approving the transactions contemplated by this Agreement certified by an
appropriate officer of Seller, together with copies of the Certificate of
Incorporation and By-Laws of Seller, certified by an appropriate officer of
Seller; and
9.1.9. Seller's Closing Certificate.
9.2. Deliveries by Purchaser to Seller. Purchaser shall deliver to
Seller (or its designee):
9.2.1. one or more agreements whereby Purchaser (or its designee)
assumes and agrees to perform Seller's obligations, liabilities and duties under
the Assumed Liabilities;
9.2.2. the opinion of Purchaser's counsel referenced in Section
7.3;
9.2.3. Purchaser's Closing Certificate; and
9.2.4. payment of the Purchase Price
ARTICLE 10.
ACTIONS BY THE PARTIES AFTER THE CLOSING
10.1. Transition Assistance. For a period of not more than thirty (30)
days after the Closing, Seller shall provide reasonable assistance and training
to Purchaser's personnel in order to help familiarize Purchaser's personnel with
the operating systems of the Business, including applicable billing and customer
assistance programs.
10.2. Seller's Access to Records. After the Closing, Purchaser shall
provide Seller, during normal business hours after reasonable advance request,
with access to books and records of the System, Business or Assets which are
reasonably required by Seller to prepare Seller's Financial Statements, complete
tax returns, respond to requests for information from taxing authorities or in
connection with any tax audits.
10.3. Further Assurances. On and after the Closing Date, the Parties
shall take all appropriate actions, including the execution of all documents,
instruments or conveyances
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of any kind, which may be reasonably necessary to consummate the transactions
contemplated by this Agreement, including without limitation, providing
Purchaser (or its designee) with possession and operating control of the Assets
and the System.
ARTICLE 11.
INDEMNIFICATION
11.1. Survival. The several representations, warranties, and covenants
of the Parties contained in this Agreement (or in any document delivered in
connection herewith) shall be deemed to have been made on the date of this
Agreement and on the Closing Date, shall be deemed to be material and to have
been relied upon by the Parties notwithstanding any investigation made by the
Parties, shall survive the Closing Date, and shall remain operative and in full
force and effect for a period of two (2) years following the Closing Date;
provided, however, that the representations, warranties and agreements of (i)
Seller contained in Sections 5.4 (Title to Assets), 5.6 (Authorizations), 5.14
(Taxes), and 5.17 (Environmental Matters) and (ii) Buyer contained in Section
6.2 (Authorizations) and 6.6 (Purchaser Qualifications) shall continue for the
duration of any statute of limitations that is applicable to the matter that
gives rise to the indemnification claim. These periods during which the Parties
representations, warranties and covenants shall continue shall constitute the
Indemnification Period, as the case may be.
11.2. Seller's Indemnity.
11.2.1. During the indemnification period (or thereafter solely
with respect to any claim for which indemnification has been made prior to the
expiration of the indemnification period), in addition to any other
indemnification provided for under this Agreement, Seller shall indemnify and
hold harmless Purchaser and its Representatives and assigns from and against any
and all demands, claims, losses, liabilities, actions or causes of action,
assessments, actual damages (but excluding consequential damages), fines, taxes
(including, without limitation, excise and penalty taxes), penalties, reasonable
costs and expenses (including, without limitation, interest, reasonable expenses
of investigation, reasonable fees and disbursements of counsel, accountants and
other experts (whether such reasonable fees and disbursements of counsel,
accountants and other experts relate to claims, actions or causes of action
asserted by Purchaser against Seller or asserted by third parties))
(collectively "Losses") incurred or suffered by Purchaser, its Representatives
or its assigns arising out of, resulting from, or relating to:
11.2.1.1. Any breach of any of the representations
warranties, covenants, agreements or other commitments made by Seller in this
Agreement or in any agreement, certificate, exhibit or other instrument
delivered by the Seller pursuant to this Agreement; and
11.2.1.2. Any failure by Seller to perform any of its
covenants or agreements contained in this Agreement or in any agreement,
certificate or other instrument delivered by the Seller pursuant to this
Agreement.
11.3. Purchaser's Indemnity.
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11.3.1. During the indemnification period (or thereafter solely
with respect to any claim for which indemnification has been made prior to
expiration of the indemnification period), in addition to any other
indemnification provided for under this Agreement, from and after the Closing
Date, Purchaser shall indemnify and hold harmless Seller and its Representatives
and its assigns from and against any and all Losses incurred or suffered by
Seller, its Representatives or its assigns arising out of, resulting from, or
relating to:
11.3.1.1. Any breach of any of the representations or
warranties made by Purchaser in this Agreement or in any agreement, certificate
or other instrument delivered by Purchaser pursuant to this Agreement; or
11.3.1.2. Any failure by Purchaser to perform any of its
covenants or agreements contained in this Agreement or in any agreement,
certificate or other instrument delivered by Purchaser pursuant to this
Agreement.
11.4. Procedure. In the event that any Party hereto shall sustain or
incur any Losses in respect of which indemnification may be sought by such Party
pursuant to this Article 11, the Party seeking such indemnification (the
"Indemnitee") shall assert a claim for indemnification by giving prompt written
notice thereof (the "Notice") which shall describe in reasonable detail the
facts and circumstances upon which the asserted claim for indemnification is
based along with a copy of the claim or complaint, to the Party providing
indemnification (the "Indemnitor") and shall thereafter keep the Indemnitor
reasonably informed with respect thereto; provided that failure of the
Indemnitee to give the Indemnitor prompt notice as provided herein shall not
relieve the Indemnitor of any of its obligations hereunder, except to the extent
that the Indemnitor is materially prejudiced by such failure. For purposes of
this Section, any notice which is sent within fifteen (15) days of the date upon
which the Indemnitee learned of such Loss shall be deemed to have been a prompt
notice.
11.4.1. If the Indemnitor wishes to defend any claim for any
Losses for which such Indemnitor is or may be liable, and such Indemnitor first
establishes (to the reasonable satisfaction of the Indemnitee) the Indemnitor's
financial ability to pay for any such Losses, then such Indemnitor may, at its
own expense, defend such claim; provided that the Indemnitee may retain counsel
(at the Indemnitee's expense) to monitor the defense of such claim, and may take
over such defense if, during the course thereof, it reasonably appears that the
Indemnitor has lost its ability to pay for any Losses threatened by such claim.
If an Indemnitor assumes the defense of such an action, no compromise or
settlement thereof may be effected by the Indemnitor without the Indemnitee's
consent, which consent shall not be unreasonably withheld. If an Indemnitor
fails, within thirty (30) days after the date of the Notice, to give notice to
the Indemnitee of said Indemnitor's election to assume the defense thereof, said
Indemnitor shall be bound by any determination made in such action or any
compromise or settlement thereof effected by the Indemnitee.
11.4.2. Amounts payable by the Indemnitor to the Indemnitee in
respect of any Losses for which any Party is entitled to indemnification
hereunder shall be payable by the Indemnitor as incurred by the Indemnitee.
26
<PAGE> 27
11.5. Limitation on Indemnification. No Party shall be entitled to
indemnification in accordance with the provisions of this Article until such
time as the value of the aggregate loss or liability for which indemnification
is sought exceeds the sum of Fifty Thousand Dollars ($50,000). At such time as
the aggregate loss or liability for which indemnification may be sought exceeds
Fifty Thousand Dollars ($50,000), the Party to be indemnified may seek
indemnification for all such losses or liabilities, including the first Fifty
Thousand Dollars ($50,000), provided further that in no event shall the
aggregate liability of either Party for all such claims exceed Five Million
Dollars ($5,000,000).
11.6. Indemnification Payments in Cash. All payments in respect to any
indemnification obligation shall be made by wire transfer of immediately
available funds.
11.7. Investigations: Waivers. The survival periods and rights to
indemnification provided for in this Article 11 shall remain in effect
notwithstanding any investigation at any time by or on behalf of any Party
hereto or any waiver by any Party hereto of any condition to such Party's
obligations to consummate the transactions contemplated hereby.
11.8. Claims Outside the Indemnification Period. Any claim made outside
the Indemnification Period shall be barred.
ARTICLE 12.
DEFAULT AND REMEDIES
12.1. Opportunity to Cure. If any Party believes another to be in
default hereunder for breach of representations and warranties or any other
reason, such Party shall provide the other with written notice specifying in
reasonable detail the nature of such default. If the default has not been cured
by the earlier of: (a) the Closing Date, or (b) within thirty (30) days after
delivery of that notice, then the Party giving such notice may terminate this
Agreement by notifying the defaulting Party and/or exercise the remedies
available to such Party pursuant to this Article 12, subject to the right of the
other Party to contest either such action through appropriate proceedings;
provided, however, that if such breach is not capable of being cured within such
period and if the breaching Party shall have commenced action to cure such
breach within such period and is diligently attempting to cure such breach and
such breach can reasonably be expected to be cured during the additional time
period, the breaching Party shall be afforded an additional reasonable amount of
time to cure such breach but not to exceed an additional sixty (60) days;
provided, further, however, that Purchaser shall have no opportunity to cure the
breach of its obligation to deliver any required portion of the Purchase Price
to be delivered to Seller at Closing.
12.2. Remedies. Except as otherwise provided in this Agreement, the
Parties hereto shall have the right to pursue any remedy that each may have at
law or in equity. Without limiting the foregoing, the Parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the Parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the
27
<PAGE> 28
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity. Each Party agrees
that it will not assert, as a defense against a claim for specific performance,
that the Party seeking specific performance has an adequate remedy at law.
ARTICLE 13.
TERMINATION
Absence of Commission Consent. This Agreement may be terminated at the
option of Seller or Purchaser upon written notice to the other if the Assignment
Application has not been granted by Final Order within twelve (12) months after
the date of this Agreement. Neither Party may terminate this Agreement pursuant
to this Section if such Party is in material default hereunder, or if a delay in
any decision or determination by the Commission respecting the Assignment
Application has been caused or materially contributed to by such Party's action
or inaction with respect to such Assignment Application.
ARTICLE 14.
DAMAGE; RISK OF LOSS
14.1. Risk of Loss. The risk of loss or damage to the Assets shall be
upon Seller at all times prior to the Closing Date. In the event of material
loss or damage to the Assets prior to the Closing Date, Seller shall promptly
notify Purchaser thereof and use its best efforts to repair, replace or restore
the lost or damaged Assets to their former condition as soon as possible. If
such repair, replacement, or restoration has not been completed prior to the
Closing Date, Purchaser may, at its option:
14.1.1. elect to consummate the Closing and make such
arrangements as the Parties may reasonably agree upon to remedy such loss or
damage; or
14.1.2. elect to postpone the Closing Date, with prior consent of
the Commission if necessary, for such reasonable period of time (not to exceed
ninety (90) days) as is necessary for Seller to repair, replace, or restore (or
to cause to be repaired, replaced or restored) the lost or damaged Assets to
their former condition. If, after the expiration of that extension period, the
lost or damaged Assets have not been adequately repaired, replaced or restored,
Purchaser may terminate this Agreement by notifying Seller or elect to
consummate the Closing as provided in Section 14.1.1.
For purposes of this Section, loss or damage shall be deemed "material"
if the reasonable cost to repair, replace, or restore the lost or damaged
property exceeds $250,000.00.
14.2. Resolution of Disagreements. If the Parties are unable to agree
upon the extent of any loss or damage, the cost to repair, replace or restore
any lost or damaged Assets, the adequacy of any repair, replacement, or
restoration of any lost or damaged Assets, or any other matter arising under
this Section, the Parties shall jointly refer the
28
<PAGE> 29
disagreement to a qualified consulting communications engineer mutually
acceptable to Seller and Purchaser who is a member of the Association of Federal
Communications Consulting Engineers (the Engineer ), whose decision shall be
final, and whose fees and expenses shall be paid one-half by Seller and one-half
by Purchaser. The Engineer shall render his decision not later than thirty (30)
days after the date on which the disagreement is jointly referred.
ARTICLE 15.
MISCELLANEOUS
15.1. Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by Seller or Purchaser without the prior
written consent of the others, except that Purchaser, upon ten (10) days notice
to Seller, may assign its right, title and interest in, to and under this
Agreement to an Affiliate, provided, however that Western Wireless Corporation
shall continue to guaranty performance of the assignee s obligations under this
Agreement in accordance with Section 15.2. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns, and no other person shall have any
right, benefit or obligation hereunder.
15.2. Guaranty of Western Wireless Corporation. Western Wireless
Corporation, as an affiliate of Purchaser, agrees that it shall ensure
performance by Purchaser (or its assignee) of the obligations of Purchaser (or
its assignee) under this Agreement, including the payment of the Purchase Price
on the same terms and conditions as are contained in this Agreement. Except as
expressly stated in this section 15.2, Western Wireless Corporation shall have
no other obligation or responsibility under this Agreement.
15.3. Notices; Transfer of Funds. Unless otherwise provided herein, any
notice, request, instruction or other document to be given hereunder by any
Party to the other Party shall be in writing and delivered (i) in person or (ii)
by a recognized national overnight courier service, (iii) by confirmed facsimile
transmission, or (iv) mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to Purchaser:
Western Wireless Corporation
3650 131st Avenue S.E., Suite 400
Bellevue, Washington 98006
Attention: Scott A. Hopper
With a copy to:
Stokes Lawrence, P.S.
800 Fifth Avenue, Suite 4000
Seattle, WA 98104-3199
Attention: Douglas C. Lawrence
If to Seller:
29
<PAGE> 30
Celludyne II, Inc.
45590 Rancho Palmeras Drive
Indian Wells, CA 92210
Attention: Jack Leeney
With a copy to:
Patton Boggs, L.L.P.
2550 M Street N.W.
Washington, D.C. 20037
Attention: Paul C. Besozzi
or to such other place and with such other copies as either Party may designate
as to itself by written notice to the others. All such notices and
communications shall be deemed to have been duly given at the time delivered by
hand, if personally delivered; five (5) business days after being deposited in
the mail, first class postage prepaid, return receipt requested, if mailed; when
receipt confirmed, if sent by facsimile; and the next business day after timely
delivery to the courier, if sent by an over-night air courier service
guaranteeing next day delivery.
15.4. Choice of Law. This Agreement shall be construed, interpreted and
the rights of the Parties determined in accordance with the laws of the State of
Delaware, except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity was organized shall govern.
15.5. Entire Agreement; Amendments and Waivers. This Agreement, together
with all Exhibits and Schedules hereto, constitutes the entire agreement between
the Parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the Parties. No supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by the Party to be bound thereby. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
15.6. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.7. Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement or any other such instrument.
15.8. Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this Agreement.
30
<PAGE> 31
15.9. Expenses. Except as otherwise expressly provided herein, Purchaser
shall be solely responsible for any sales and transfer Taxes, recording and
transfer fees arising from the purchase and sale of the Assets pursuant to this
Agreement. Each Party shall be responsible for one-half of any fees associated
with filing (i) the applications for the FCC Consents and (ii) any other
application for Consent required from any governmental authority. Purchaser
shall pay all fees associated with any required HSR filing. Except as otherwise
provided in this Agreement, Seller and Purchaser will each be liable for its own
expenses incurred in connection with the negotiation, preparation, execution or
performance of this Agreement.
15.10. Schedules and Exhibits. The Schedules and Exhibits to this
Agreement are a material part hereof and shall be treated as if fully
incorporated into the body of the Agreement.
15.11. Publicity. Except as required by law or on advice of counsel,
neither Party shall issue any press release or make any public statement
regarding the transactions contemplated hereby without the prior approval of the
other Party.
15.12. Confidential Information. The Parties acknowledge that the
transaction described herein is of a confidential nature and shall not be
disclosed except to Representatives and Affiliates, or as required by law, until
such time as the Parties make a public announcement regarding the transaction as
provided in Section 15.11 Seller and Purchaser shall not make any public
disclosure of the specific terms of this Agreement, except as required by law.
In connection with the negotiation of this Agreement and the preparation for the
consummation of the transactions contemplated hereby, each Party acknowledges
that it will have access to confidential information relating to the other
Party. Each Party shall treat such information as confidential, preserve the
confidentiality thereof and not duplicate or use such information, except to
Representatives and Affiliates in connection with the transactions contemplated
hereby provided such Representatives and Affiliates also agree to keep such
information confidential. In the event of the termination of this Agreement for
any reason whatsoever, each Party shall return to the other all documents, work
papers and other material (including all copies thereof) obtained in connection
with the transactions contemplated hereby and shall use all reasonable efforts,
including instructing any of its Representatives who have had access to such
information, to keep confidential and not to use any such information, unless
such information is now, or is hereafter disclosed, through no act or omission
of such Party, in any manner making it available to the general public.
31
<PAGE> 32
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed on its behalf by its officer thereunto duly authorized as of the
day and year first above written.
CELLUDYNE II, INC.
By
Its
WWC HOLDING CO., INC.
By /s/ CREGG B. BAUMBAUGH
--------------------------------
Its Senior Vice President
--------------------------------
GUARANTORS:
Solely as to its obligation under
Section 15.2 of this Agreement:
WESTERN WIRELESS CORPORATION
By /s/ CREGG B. BAUMBAUGH
--------------------------------
Its Senior Vice President
--------------------------------
32
<PAGE> 33
Schedules:
<TABLE>
<S> <C>
Excluded Assets - Schedule 1.19
Inventory - Schedule 1.26
Escrow Agreement - Schedule 2.2
Allocation of Purchase Price - Schedule 2.4
Assumed Liabilities - Schedule 3.1.2
Insurance - Schedule 4.1.7
Tangible Personal Property - Schedule 5.4.1
Real Property - Schedule 5.4.2
Authorizations - Schedule 5.6
Contracts - Schedule 5.7
Intellectual Property - Schedule 5.8
Employees - Schedule 5.9
Financial Statements - Schedule 5.10
Litigation - Seller - Schedule 5.11
Reports - Schedule 5.13
Taxes - Schedule 5.14
Resale and Roaming Agreements - Schedule 5.16
Environmental Matters - Schedule 5.17
Recent Indebtedness - Schedule 5.20.1
Recent Liens - Schedule 5.20.2
Litigation - Purchaser - Schedule 6.3
Purchaser's Corporate Counsel Opinion - Schedule 7.3
Seller's Corporate Counsel Opinion - Schedule 8.4
Seller's Regulatory Counsel Opinion - Schedule 8.5
</TABLE>
33
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM WESTERN
WIRELESS CONSOLIDATED BALANCE SHEET AND STATEMENT OF OPERATIONS AS OF AND FOR
THE SIX MONTHS ENDED JUNE 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO SUCH 10Q.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> JUN-30-1998
<EXCHANGE-RATE> 1
<CASH> 34,391
<SECURITIES> 0
<RECEIVABLES> 68,044
<ALLOWANCES> 11,689
<INVENTORY> 27,513
<CURRENT-ASSETS> 139,844
<PP&E> 992,832
<DEPRECIATION> 286,954
<TOTAL-ASSETS> 1,755,044
<CURRENT-LIABILITIES> 134,226
<BONDS> 1,315,000
0
0
<COMMON> 801,392
<OTHER-SE> (599,015)
<TOTAL-LIABILITY-AND-EQUITY> 1,755,044
<SALES> 22,036
<TOTAL-REVENUES> 255,425
<CGS> 46,510
<TOTAL-COSTS> 319,636
<OTHER-EXPENSES> 70,033
<LOSS-PROVISION> 13,235
<INTEREST-EXPENSE> 61,799
<INCOME-PRETAX> (117,190)
<INCOME-TAX> 0
<INCOME-CONTINUING> (117,190)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (117,190)
<EPS-PRIMARY> (1.55)<F1>
<EPS-DILUTED> (1.55)
<FN>
<F1>
FOR PURPOSES OF THIS EXHIBIT, PRIMARY MEANS BASIC
</FN>
</TABLE>
