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LOAN AGREEMENT
dated as of February 17, 1998
among
OMNIPOINT COMMUNICATIONS INC.,
as Borrower,
OMNIPOINT CORPORATION,
as Grand Parent,
THE LENDERS PARTY HERETO,
DLJ CAPITAL FUNDING, INC.,
as Syndication Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.,
as Documentation Agent,
BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION,
as Administrative Agent, and
NATIONSBANK, N.A.
as Co - Agent
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Portions of this Exhibit were omitted and have been filed separately with
the Secretary of the Commission pursuant to the Company's Application Requesting
Confidential Treatment under Rule 24b-2 of the Securities Exchange Act of 1934,
as amended, on March 26, 1998.
LOAN AGREEMENT
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This Loan Agreement is made as of the __ day of February, 1998 (this
"Agreement"), by and among (a) OMNIPOINT COMMUNICATIONS INC. (the "Borrower"), a
Delaware corporation, (b) OMNIPOINT CORPORATION (the "Grand Parent"), for the
purposes set forth in Section 12.14, (c) the Lenders party hereto, (d) DLJ
CAPITAL FUNDING, INC., as Syndication Agent, (e) ▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS
L.P., as Documentation Agent, (f) BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION, as administrative agent for the Lenders (together with any
successor thereto appointed pursuant to Section 11.6, the "Administrative
--------------
Agent") and (g) NATIONSBANK, N.A., as Co-Agent.
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ARTICLE I
DEFINITIONS AND RULES OF INTERPRETATION
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Section 1.1 Definitions.
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The following terms shall have the meanings set forth in this Section 1.1
or elsewhere in the provisions of this Agreement referred to below:
Access Agreements. Agreements, in form and substance satisfactory to the
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Administrative Agent, pursuant to which Grand Parent agrees to provide the
Borrower and its Subsidiaries access to its Intellectual Property assets on the
terms on which such access is provided as of the Closing Date or is contemplated
to be provided in the plans of Grand Parent delivered to the Administrative
Agent prior to the Closing Date.
Action Letter. As defined in Paragraph 7 of Schedule 5.23.
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Additional Lenders. As defined in Section 2.1.
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Adjusted Annualized EBITDA. As of any date of determination, Adjusted
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EBITDA for the two most recently completed fiscal quarters (including the fiscal
quarter ending on such date of determination) multiplied by two.
Adjusted EBITDA. For any period, EBITDA for such period plus, to the
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extent subtracted to calculate the Net Income of the Borrower and its
Subsidiaries for such period, selling, marketing, advertising and promotional
expenses (including, without limitation, compensation and commissions incurred
in connection with the foregoing activities) incurred during such period, in
each case in accordance with GAAP.
Administrative Agent. As defined in the preamble hereto.
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Administrative Agent's Office. The Administrative Agent's office set forth
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in Section 12.2 and, upon the appointment of a successor Administrative Agent
pursuant to Section 11.6, such address as shall be provided by such successor
Administrative Agent, or in either case such office as the Administrative Agent
from time to time may designate.
Affiliate. As to any Person, any other Person which, directly or
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indirectly, is in control of, is controlled by, or is under common control with
such Person. For purposes of this definition, control of a Person shall include
the power, direct or indirect, (a) to vote 10% or more of the securities or
other interests having ordinary voting power for the election of directors or
other managing Persons of such Person or (b) to direct or cause direction of the
management and policies of such Person whether by contract or otherwise.
Agent's Fee Letter. The letter agreement between the Administrative Agent
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and the Borrower dated as of February 9, 1998, as the same may be amended,
supplemented or otherwise modified from time to time.
Agents. The Administrative Agent, the Syndication Agent, the Documentation
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Agent and the Co-Agent.
Annual Operating Business Plan. With respect to the Borrower's fiscal year
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ending December 31, 1998, the Borrower's annual operating business plan
delivered pursuant to Section 8.11(a) and, with respect to each subsequent
fiscal year of the Borrower, the annual business operating plan delivered by the
Borrower pursuant to Section 6.13(a) with respect to such fiscal year.
Annualized EBITDA. As of any date of determination, EBITDA for the two
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most recently completed fiscal quarters (including the fiscal quarter ending on
such date of determination) multiplied by two.
Applicable Lending Office. With respect to any Lender, for Base Rate
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Loans, the office of such Lender specified as its domestic lending office and,
for LIBO Rate Loans, the office of such Lender specified as its LIBOR lending
office, in either case on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other offices of such Lender as
such Lender may from time to time specify to the Administrative Agent.
Applicable Margin. As of any date of determination, the applicable margin
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(expressed as a percentage) with respect to Base Rate Loans shall be equal to
[*] per annum and with respect to LIBO Rate Loans shall be equal to [*] per
annum; provided that 5 Business Days after the Borrower notifies the
Administrative Agent that an Equity Issuance to a Qualified Investor has
occurred, the applicable margin with respect to Base Rate Loans shall be equal
to [*] per annum and with respect to LIBO Rate Loans shall be equal to [*] per
annum.
Approved Fund. With respect to any Lender that is a fund that invests in
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bank loans, any other fund that invests in bank loans and is advised or managed
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor.
Assignment and Acceptance. An Assignment and Acceptance substantially in
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the form of Exhibit C.
2
Base Rate. For any day, the higher of (a) 0.50% per annum above the latest
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Federal Funds Rate; and (b) the rate of interest in effect for such day as
publicly announced from time to time by the Administrative Agent in San
Francisco, California, as its "reference rate." (The "reference rate" is a rate
set by the Administrative Agent based upon various factors including the
Administrative Agent's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate.) Any change in the
reference rate announced by the Administrative Agent shall take effect at the
opening of business on the day specified in the public announcement of such
change.
Base Rate Loans. Loans bearing interest calculated by reference to the
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Base Rate plus the Applicable Margin.
Book Capitalization. [*]
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Working Capital Requirements of the Borrower for all fiscal quarters ended since
December 31, 1997.
Borrower. As defined in the preamble hereto.
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Borrower Securities Account Control Agreement. The Borrower Securities
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Account Control Agreement in substantially the form of Exhibit G.
Borrower Pledge Agreement. The Pledge Agreement between the Borrower and
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the Administrative Agent for the benefit of the Lenders and other Secured
Creditors under the Intercreditor Agreement, providing for the pledge of 100% of
the limited liability company interests of the License Subsidiary, substantially
in the form of Exhibit F, as amended from time to time in compliance with the
Loan Documents.
Borrower Security Agreement. The Borrower Security Agreement among the
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Borrower and the Administrative Agent for the benefit of the Lenders and the
other Secured Creditors under the Intercreditor Agreement, substantially in the
form of Exhibit E, as amended from time to time in compliance with the Loan
Documents.
Borrowing. The incurrence of one Type of Loan from all Lenders on a given
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date (or resulting from Conversions on a given date) having, in the case of LIBO
Rate Loans, the same Interest Period.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
3
BTA. Any "basic trading area" as set forth on the Rand ▇▇▇▇▇▇▇ 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, and utilized by the FCC in
dividing the 50 States, the District of Columbia and the United States
Territories into 493 BTAs for the purpose of licensing PCS systems.
Business Day. Any day other than a Saturday, a Sunday or a day on which
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commercial banks located in New York City or San Francisco, California are
authorized or required by law or other governmental action to close, provided
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that, when used in connection with a LIBO Rate Loan, the term Business Day shall
also exclude any day on which commercial banks are not open for dealings in
dollar deposits in the London interbank market.
"C" Block Licenses. FCC Licenses issued in the FCC's C-Block auction under
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47 CFR Section 24.229(b).
Cap Re Notes. The Senior Notes due November, 2000 in the original
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aggregate principal amount of $25,000,000, issued by Grand Parent pursuant to a
Note and Warrant Purchase Agreement, dated as of November 22, 1995, by and among
Grand Parent, The Bond Fund of America, Inc. and the American High-Income Trust.
Capital Expenditures. Amounts paid or Indebtedness incurred by any Person
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in connection with the purchase or lease by such Person of assets that would be
required to be capitalized and shown on the balance sheet of such Person in
accordance with GAAP.
Capital Stock. With respect to any Person, any and all shares, interests,
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participations or other equivalents (however designated, whether voting or non-
voting) in equity of such Person, whether now outstanding or issued after the
Closing Date, including, without limitation, all Common Stock and Preferred
Stock.
Capitalized Leases. With respect to any Person, (i) any lease of property,
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real or personal, the obligations under which are capitalized on the balance
sheet of such Person, and (ii) any other such lease to the extent that the then
present value of the minimum rental commitment thereunder should, in accordance
with GAAP, be capitalized on a balance sheet of the lessee.
Cash Management Agreement. The Amended and Restated Cash Management Agency
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Agreement dated as of December 29, 1997 between the Borrower and Grand Parent,
as amended from time to time.
CERCLA. The Comprehensive Environmental Response, Compensation and
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Liability Act, as amended, 42 USCA (S) 9601 et seq.
Change of Control. (a) The sale, lease, transfer, conveyance or other
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disposition of all or substantially all of the assets of Grand Parent to any
"person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of the
Exchange Act or any successor provision to either of the foregoing, including
any group acting for the purpose of acquiring, holding
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or disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act) other than the Existing Shareholders (except in connection with a
liquidation or dissolution of Grand Parent that does not constitute a Change of
Control under clause (b) below), (b) the approval by the requisite shareholders
of Grand Parent of a plan of liquidation or statutory dissolution (which shall
not be construed to include a plan of merger or consolidation) of Grand Parent
unless the Existing Shareholders "beneficially own" (as defined in Rule 13d-3
under the Exchange Act) at least the same percentage of voting power after the
consummation of such plan as before or otherwise retain the right or ability, by
voting power, to control the Person that acquires the proceeds of such
liquidation or dissolution, (c) any "person" or "group" (within the meaning of
Sections 13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to
either of the foregoing; including any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule 13d-
5(b) under the Exchange Act), other than the Existing Shareholders becomes the
"beneficial owner" (as so defined) of more than [*] of the total voting power of
all classes of the Voting Stock of Grand Parent and/or warrants or options to
acquire such Voting Stock, calculated on a fully diluted basis, provided that
Existing Shareholders "beneficially own" (as so defined) in the aggregate a
percentage of such Voting Stock or warrants having a lesser percentage of voting
power than such other "person" or "group" and do not have the right or ability
by voting power, contract or otherwise to elect or designate for election a
majority of Grand Parent's Board of Directors, (d) during any period of two
consecutive years, individuals who at the beginning of such period constituted
Grand Parent's Board of Directors (together with any new directors whose
election or appointment by such board or whose nomination for election by the
stockholders of Grand Parent was approved by a vote of the Existing Shareholders
or 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 Grand
Parent's Board of Directors then in office, or (e) Grand Parent ceases to own
100% of the Capital Stock of Parent (except as permitted in accordance with
clause (v) of the definition of "Permitted Asset Sale," or Parent ceases to own
[*] of the Capital Stock of the Borrower. Notwithstanding clause (c) above, the
acquisition by a Qualified Investor (as certified to the Administrative Agent by
the Borrower) of [*] or less of the Voting Stock of Grand Parent shall not
constitute a "Change of Control," so long as not more than [*] of the Senior
Notes are (and Grand Parent has not received notice of an election to cause such
Senior Notes to be) redeemed or repurchased by Grand Parent from the holders
thereof as a result of a mandatory offer to purchase under the Indenture on
account of such an acquisition.
Closing Date. The meaning specified in the introductory clause of Article
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VIII.
Co-Agent. NationsBank, N.A., as Co-Agent under this Agreement.
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Collateral. All of the property, rights and interests of the Borrower,
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Parent, OIT, OHI and the License Subsidiary now existing or acquired in the
future that are or are intended to be subject to the security interests created
by the Collateral Documents.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
5
Collateral Documents. The Borrower Security Agreement, the Borrower Pledge
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Agreement, the Borrower Securities Account Control Agreement, the Mortgage, the
Parent Guaranty, the Parent Pledge Agreement, the Subsidiary Guaranty, the
Subsidiary Security Agreement, the OHI Guaranty, the OHI Pledge Agreement, the
OIT Guaranty, the OIT Securities Account Control Agreement, and any other
agreements or documents contemplated hereby or thereby and all schedules,
exhibits and annexes thereto.
Commitment. At any time, for any Lender, the amount set forth opposite
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such Lender's name in Annex I hereto under the heading "Commitment," as the same
may be reduced (or increased) from time to time pursuant to this Agreement.
Commitment Percentage. For each Lender at any given time, the percentage
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equivalent of such Lender's Commitment divided by the Total Commitment.
Common Stock. With respect to any Person, any and all shares, interests,
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participations or other equivalents (however designated, whether voting or non-
voting) in equity of such Person, whether now outstanding or issued after the
Closing Date, including, without limitation, all series and classes of such
common stock, but excluding Preferred Stock of such Person.
Communications Act. The Communications Act of 1934, as amended, and the
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rules and regulations issued thereunder, as from time to time in effect.
Confidential Information. Information that the Borrower or its Affiliates
------------------------
furnish to the Administrative Agent or any Lender in a writing designated as
confidential, but Confidential Information does not include any such information
that is or becomes generally available to the public or that is or becomes
available to the Administrative Agent or such Lender from a source other than
the Borrower or its Affiliates.
Consent Agent. As defined in Section 8.21.
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Consolidated Cash Interest Expense. For any period, Consolidated Interest
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Expense for such period minus the amount of such Consolidated Interest Expense
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not paid or payable in cash.
Consolidated Interest Expense. For any fiscal period of any Person, the
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total interest expense (including, without limitation, interest expense
attributable to Capitalized Leases in accordance with GAAP) of such Person and
its Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
Contingent Obligation. As to any Person, any obligation of such Person
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guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation ("pri ▇▇▇▇ obligations") of any other Person (the "primary
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obligor") in any manner, whether directly or indirectly, including, without
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limitation, any obligation of such Person, whether or not contingent,
6
(a) to purchase any such primary obligation or any Property
constituting direct or indirect security therefor;
(b) to advance or supply funds
(i) for the purchase or payment of any such primary obligation,
or
(ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain net worth, solvency or other
financial statement condition of the primary obligor;
(c) to purchase Property, securities or services primarily for the
purpose of assuring the beneficiary or holder of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation; or
(d) otherwise to assure, protect from loss, or hold harmless the
benefi ciary or holder of such primary obligation against loss in respect
thereof;
provided that the term Contingent Obligation shall not include the indorsement
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of instruments for deposit or collection in the ordinary course of business.
The term Contingent Obligation shall also include the liability of a general
partner in respect of the recourse liabilities of the partnership in which it is
a general partner. The amount of any Contingent Obligation of a Person shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith.
Convert, Conversion and Converted. A conversion of Loans of one Type into
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Loans of the other Type pursuant to Section 2.5 or 2.6.
Current Phase I Audit. As defined in Paragraph 6 of Schedule 5.23.
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Default. Subject to Section 1.4, any Event of Default and any event or
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condition that, with the giving of notice, the lapse of time, or both, would
become an Event of Default.
Distribution. With respect to any Person, any of the following:
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(a) the declaration or payment of any cash dividend, dividend in kind
or cash equity distributions on or in respect of any shares of any class of
Capital Stock of such Person, other than dividends payable solely in shares
of Common Stock of such Person;
(b) the purchase, redemption, or other retirement of any shares of any
class of Capital Stock of such Person;
7
(c) the return of capital by such Person to its shareholders as such;
or
(d) any other distribution on or in respect of any shares of any class
of Capital Stock of such Person.
DLJ. DLJ Capital Funding, Inc.
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DLJSC. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation.
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Documentation Agent. GSCP, as Documentation Agent under this Agreement.
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Dollars or $. Dollars in lawful currency of the United States of America.
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Draw Request. As defined in Section 2.2.
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EBITDA. With respect to any Person for any period,
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(a) Net Income of such Person and its Subsidiaries for such period,
plus
(b) to the extent deducted in determining Net Income for such period,
the sum of each of the following for such period:
(i) depreciation, amortization and other non-cash charges;
(ii) income-tax expense; and
(iii) Total Interest Expense, and
(c) to the extent included in determining Net Income for such period,
minus net gains from Permitted Asset Sales or extraordinary net gains, and
plus losses from Permitted Asset Sales or extraordinary non-cash losses.
(d) to the extent included in determining Net Income for such period,
minus non-cash undistributed earnings, and plus non-cash losses from
permitted Investments.
Employee Benefit Plan. Any employee benefit plan within the meaning of
---------------------
Section 3(3) of ERISA maintained or contributed to by any of the Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.
Environmental Affiliate. With respect to any Person, any other Person
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whose liability for any Environmental Claim such Person has or may have
retained, assumed or otherwise become liable for (contingently or otherwise),
either contractually or by operation of law.
Environmental Claim. The meaning provided in Section 5.23(a).
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8
Environmental Laws. Any federal, state or local law, statute, rule or
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regulation or common law relating to the environment or occupational health and
safety, including any statute, regulation or order pertaining to
(a) treatment, storage, disposal, generation and transportation of
industrial, toxic or hazardous substances or solid or hazardous waste;
(b) air, water or noise pollution;
(c) groundwater and soil contamination;
(d) the release or threatened release into the environment of
industrial, toxic or hazardous substances, or solid or hazardous waste,
including without limitation emissions, discharges, injections, spills,
escapes or dumping of pollutants, contaminants or chemicals;
(e) the protection of wildlife, marine sanctuaries and wetlands,
including without limitation all endangered and threatened species;
(f) underground and other storage tanks or vessels, abandoned,
disposed or discarded barrels, containers and other closed receptacles;
(g) health and safety of employees and other persons; and
(h) manufacture, processing, use, distribution, treatment, storage,
disposal, transportation or handling of pollutants, contaminants, chemicals
or industrial, toxic or hazardous substances or oil or petroleum products,
by-products or breakdown products or solid or hazardous waste,
including (i) CERCLA; (ii) RCRA; (iii) the Toxic Substance Control Act, as
amended, 15 USCA (S) 2601 et seq.; (iv) the Water Pollution Control Act, as
amended, 33 USCA (S) 1251 et seq.; (v) the Clean Air Act, as amended, 42 USCA
(S) 7401 et seq.; (vi) the Hazardous Material Transportation Act, as amended, 49
USCA (S) 1801 et seq.; (vii) the Superfund Amendments and Reauthorization Act of
1986 and (viii) all rules, regulations, judgments decrees, injunctions and
restrictions thereunder and any analogous state law. As used above, the terms
"release," "threatened release," "hazardous substance" and "environment" shall
have the meaning set forth in CERCLA, and the terms "solid waste" and "dispose"
(or "disposal") shall have the meaning set forth in the RCRA.
Environmental Permits. As defined in Section 5.23(e).
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Equity Issuance. The issuance or sale of Capital Stock (other than (i)
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Preferred Stock with mandatory redemption rights in favor of the holder and (ii)
employee stock options and warrants) by Grand Parent, the Net Cash Proceeds from
which is equal to or greater than [*]
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
9
ERISA. The Employee Retirement Income Security Act of 1974, as amended,
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and the rules and regulations issued thereunder as from time to time in effect.
ERISA Affiliate. Any Person that is treated as a single employer with
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Grand Parent or the Borrower under (S) 414 of the IRC.
ERISA Event. With respect to the Borrower, Grand Parent or any ERISA
-----------
Affiliate,
(a) a Reportable Event,
(b) the withdrawal of Grand Parent, the Borrower or any ERISA
Affiliate from a Plan during a plan year in which it was a "substantial
employer" as defined in (S) 4001(a)(2) of ERISA,
(c) the filing of a notice of intent to terminate a Plan under a
distress termination of the Plan under (S) 4041(c) of ERISA, or the
treatment of a Plan amendment as a termination under (S) 4041 of ERISA,
(d) the institution of proceedings to terminate a Plan by the PBGC
under (S) 4042 of ERISA or
(e) the occurrence of any other event or condition which might
reasonably be expected to constitute grounds under (S) 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Plan
or to cause the imposition of any liability (other than PBGC premiums due
but not delinquent under (S) 4007 of ERISA) in excess of $250,000 under
Title IV of ERISA.
Event of Default. Any of the events specified in Section 10.1.
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Excess Cash Flow. With respect to any fiscal year of the Grand Parent and
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its Subsidiaries on a consolidated basis (except where otherwise indicated), a
positive number, if any, equal to (i) EBITDA for such fiscal year, plus (ii) any
----
Net Cash Proceeds received by (x) Grand Parent or any other Loan Party from a
Permitted Asset Sale (to the extent not required to be paid to the Lenders
pursuant to Section 3.2), and (y) any Non-Party Subsidiary from a Permitted
Asset Sale (to the extent such Net Cash Proceeds are permitted to be distributed
to Grand Parent pursuant to any agreement to which such Non-Party Subsidiary is
a party) plus (or minus) (iii) decreases (or increases) in Working Capital
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(other than decreases or increases in any cash included therein) from the last
day of the preceding fiscal year to the last day of such fiscal year, minus (iv)
-----
all amounts paid in cash in respect of taxes in such fiscal year, minus (v) cash
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Capital Expenditures for such fiscal year, minus (vi) Consolidated Cash Interest
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Expense for such fiscal year, minus (vii) all principal payments made during
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such fiscal year in respect of Indebtedness to the extent such Indebtedness and
payments are permitted to be incurred and made hereunder.
Exchange Act. The Securities Exchange Act of 1934, as amended.
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10
Existing Bank Debt. All indebtedness, principal, interest, premium, fees,
------------------
indemnities, expenses or other obligations of any nature owed under or in
connection with the Existing Loan Agreement.
Existing Loan Agreement. The Loan Agreement, dated as of December 29,
-----------------------
1997, among the Borrower, as borrower, the lenders party thereto, DLJ, as
syndication agent, GSCP, as documentation agent, Bank of America NT & SA, as
administrative agent, and NationsBank, N.A., as Co-Agent.
Existing Shareholders. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Madison Dearborn Capital
---------------------
Partners, L.P., ▇▇▇▇▇ & Company Incorporated and Chatterjee Management Company
and their respective Affiliates at the Closing Date and the one Investment Grade
Company (if any) that acquires [*] or less of the Capital Stock of Grand
Parent pursuant to the definition of "Change of Control."
Expense Allocation Agreement. The Amended and Restated Expense Allocation
----------------------------
Agreement among the Borrower, Parent and Grand Parent dated as of December 29,
1997, as amended from time to time as permitted hereunder.
"F" Block Licenses. FCC Licenses issued in the FCC's F-Block auction
------------------
under 47 CFR Section 24.229(b).
FCC. The Federal Communications Commission or any Governmental Body
---
succeeding to the functions thereof.
Federal Funds Rate. The fluctuating interest rate per annum equal for each
------------------
day during such period to the weighted average of the rates on overnight
federal-funds transactions with members of the Federal Reserve System arranged
by federal-funds brokers, as published for such day (or, if such day is not a
Business Day, for the next-preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such transactions received by
the Administrative Agent from three federal-funds brokers of recognized standing
selected by it.
Fee Letter. As defined in Section 2.3.
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Final Loans. As defined in Section 2.1.
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Fixed Charges. As of the end of any fiscal quarter of the Borrower, the
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sum of the following for the last consecutive 12 months ending on such date:
(i) the aggregate amount of Consolidated Cash Interest Expense paid or required
to be paid in cash by Borrower on all Indebtedness of the Borrower outstanding
during all or any part of any such period plus (ii) the aggregate amount of
----
scheduled principal payments made or required to be made by the Borrower and its
Subsidiaries with respect to any Indebtedness of the Borrower and its
Subsidiaries plus (iii) all Capital Expenditures (net of that portion which is
----
expressly
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
11
financed pursuant to Indebtedness permitted under Section 7.1) of the Borrower
and its Subsidiaries.
Full-Term Operating Business Plan. The operating business plan of the
---------------------------------
Borrower delivered pursuant to Section 8.11(b), as updated from time to time
pursuant to this Agreement.
GAAP. As defined in Section 1.3.
----
Governmental Body. Any nation or government, any state or other political
-----------------
subdivision thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government and any
court or arbitrator.
Grand Parent. Omnipoint Corporation, a Delaware corporation.
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GSCP. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.
----
Guaranteed Pension Plan. Any employee pension benefit plan within the
-----------------------
meaning of (S) 3(2) of ERISA that is maintained or contributed to by any of the
Borrower or any ERISA Affiliate or that was so maintained or contributed to and
in respect of which the Borrower or any ERISA Affiliate could have liability
under Section 4062, 4064 or 4069 of ERISA in the event that such plan has been
or were to be terminated the benefits of which are guaranteed on termination in
full or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multiemployer Plan.
Guarantors. Each of OHI, OIT, the License Subsidiary and the Parent.
----------
Holder. The holder of any Senior Secured Notes under the Note Purchase
------
Agreement.
Increased Commitments. As defined in Section 2.1(b)(i).
---------------------
Indebtedness. As to any Person, at a particular time, all items that
------------
constitute, without duplication,
(a) obligations of such Person in respect of borrowed money (including
the principal amount of all Intercompany Indebtedness) or for the deferred
purchase price of Property (other than trade payables incurred in the
ordinary course of business);
(b) obligations of such Person evidenced by notes, bonds, debentures
or similar instruments;
(c) obligations of such Person with respect to any conditional-sale or
title-retention agreement;
12
(d) obligations of such Person arising under acceptance facilities and
the amount available to be drawn under all letters of credit issued for the
account of such Person and, without duplication, all drafts drawn
thereunder to the extent such Person shall not have reimbursed the issuer
in respect of the issuer's payment of such drafts;
(e) all liabilities secured by any Lien on any Property owned by such
Person even though such Person has not assumed or otherwise become liable
for the payment thereof (other than carriers', warehousemen's, mechanics',
repairmen's or other like non-consensual Liens arising in the ordinary
course of business);
(f) obligations of such Person under Capitalized Leases;
(g) amounts owed by such Person to the FCC on the FCC Licenses for the
New York PCS Network; and
(h) all Contingent Obligations of such Person.
Indentures. Each of (i) the Indenture, dated as of December 2, 1996,
----------
between Grand Parent, as issuer, and Marine Midland Bank, as trustee, in respect
of the 11 5/8% Senior A Notes due 2006 and (ii) the Indenture, dated as of
August 27, 1996, between Grand Parent, as issuer, and Marine Midland Bank, as
trustee, in respect of the 11 5/8% Senior Notes due 2006, in each case as
amended from time to time.
Initial Draw Amount. $450,000,000.
-------------------
Initial Loans. The Tranche A Loans and the Tranche B Loans.
-------------
Initial Payment Date. June 30, 1998.
--------------------
Installment Amount. With respect to (i) each Payment Date other than the
------------------
Maturity Date, an amount equal to [*] of the aggregate principal amount of
Loans outstanding on the Last Drawdown Date, as such amount may be reduced from
time to time pursuant to Section 3.2 or 3.3, and (ii) the Maturity Date, the
aggregate then outstanding principal amount of all Loans, all accrued and unpaid
interest thereon, all fees and other amounts owed hereunder and all other
Obligations of the Borrower then outstanding.
Intellectual Property. All copyrights, trademarks, service marks, patents,
---------------------
trade names and service names, Licenses and the like.
Intercompany Indebtedness. All Indebtedness of any Omnipoint Loan Party
-------------------------
(other than Grand Parent) to the Parent, Grand Parent or any Affiliate of the
Parent or Grand Parent; provided that such Indebtedness must (i) be subject to a
Subordination Agreement, (ii) have no scheduled or mandatory amortization
payments prior to its maturity date, (iii) have a maturity date no earlier than
six months later than the Maturity Date and (iv) bear interest at a rate per
annum not to exceed 12.0%.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
13
Intercreditor Agreement. The Intercreditor Agreement, dated as of the date
-----------------------
hereof, among Bank of America National Trust & Savings Association, as
Administrative Agent for the benefit of the Lenders and Collateral Agent for the
benefit of the Secured Creditors, substantially in the form of Exhibit __, as
the same may be supplemented, amended or modified from time.
Interest Period. For each LIBO Rate Loan comprising part of the same
---------------
Borrowing, the period commencing on the date of such LIBO Rate Loan or the date
of the Conversion of any Base Rate Loan into such LIBO Rate Loan and ending on
the last day of such period, determined as provided below, and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of such period, determined as
provided below. The duration of each such Interest Period shall be one, two,
three or six months as selected by the Borrower pursuant to Section 2.2 and 2.6;
provided that:
--------
(a) whenever the last day of any Interest Period would otherwise occur
on a day other than a Business Day, the last day of such Interest Period
shall be extended to occur on the next-succeeding Business Day; provided
--------
that, if such extension would cause the last day of such Interest Period to
occur in the next-following calendar month, the last day of such Interest
Period shall occur on the next-preceding Business Day, and
(b) whenever the first day of any Interest Period occurs on a day of
an initial calendar month for which there is no numerically corresponding
day in the following calendar month, such Interest Period shall end on the
last Business Day of such following calendar month.
Investment Grade Company. Any company the senior unsecured long-term debt
------------------------
of which is rated no lower than Baa3 by ▇▇▇▇▇'▇ Investor Service, Inc. and BBB-
by Standard & Poor's Corporation (or a comparable rating from another recognized
national ratings agency to be substituted for either, but not both, of ▇▇▇▇▇'▇
Investor Service, Inc. or Standard & Poor's Corporation).
Investments. With respect to any Person, all expenditures made and all
-----------
liabilities incurred (contingently or otherwise) for the acquisition of Capital
Stock or Indebtedness of, or for loans, advances or other extensions of credit
(but excluding advances to customers in the ordinary course of business that
are, in conformity with GAAP, recorded on the balance sheet of such Person as
accounts receivable), capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under Contingent
Obligations), or obligations of, any other Person. In determining the aggregate
amount of Investments outstanding at any particular time:
(a) the amount on any date of determination of any Investment
represented by a Contingent Obligation shall be not less than the
principal amount of the obligations as to which such Contingent Obligation
exists and that are still outstanding on such date of determination;
14
(b) there shall be included as an Investment all interest accrued with
respect to Indebtedness constituting an Investment unless and until such
interest is paid;
(c) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution);
(d) there shall not be deducted in respect of any Investment any
amounts received as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest included as provided
in the foregoing clause (b) may be deducted when paid; and
(e) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
IRC. The Internal Revenue Code of 1986, as amended from time to time, and
---
the rules and regulations issued thereunder as from time to time in effect.
Joinder Agreement. A Joinder Agreement substantially in the form of
-----------------
Exhibit V.
Last Drawdown Date. April 1, 1998
------------------
Lender. The banks and other financial institutions signatory hereto in
------
their capacity as Lenders, and any other Person that becomes a Lender by reason
of an Assignment and Acceptance in accordance with the terms of this Agreement.
LIBO Rate. For any applicable Interest Period, a simple per annum interest
---------
rate (rounded upward, if necessary, to the nearest 1/100th of one percent) equal
to
(a) (i) the rate per annum that appears on Page 3750 of the Dow
▇▇▇▇▇ & Company Telerate screen or any successor page as the composite
offered rate for London interbank deposits, in an amount approximately
equal to the amount of the requested Loan for the requested Interest
Period, as shown under the heading "USD" as of 11:00 a.m. (London
time), two Business Days before the first day of such Interest Period,
or
(ii) if the rate specified in clause (i) cannot be determined,
the rate per annum equal to the arithmetic mean of the rates shown on
the LIBO page of Reuters Money Service at approximately 11:00 a.m.
(London time), two Business Days before the first day of such Interest
Period in an amount approximately equal to the amount of the requested
Loan,
divided by
(b) one, minus the LIBOR Reserve Rate, stated as a decimal.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
15
LIBO Rate Loan. Any Loan bearing interest calculated by reference to the
--------------
LIBO Rate, plus the Applicable Margin.
LIBOR Reserve Rate. For any Interest Period for all LIBO Rate Loans
------------------
comprising part of the same Borrowing, the reserve percentage applicable two
Business Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve requirement) for a member
bank of the Federal Reserve System in New York City with respect to liabilities
or assets consisting of or including eurocurrency liabilities (or with respect
to any other category of liabilities that includes deposits by reference to
which the interest rate on LIBO Rate Loans is determined) having a term equal to
such Interest Period.
License. Any mobile telephone, cellular telephone, microwave, paging or
-------
other license, authorization, certificate of compliance, franchise, approval or
permit, whether for the construction or the operation of any PCS System, granted
or issued by the FCC and any other federal Governmental Bodies.
License Subsidiary. The wholly owned subsidiary of the Borrower to be
------------------
organized pursuant to the terms and provisions of Section 6.16.
Lien. Any mortgage, pledge, hypothecation, assignment, deposit or
----
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
Capitalized Lease or other financing lease having substantially the same
economic effect as any of the foregoing.
Loan Documents. This Agreement, the Intercreditor Agreement, the Notes,
--------------
the Agent's Fee Letter, each Collateral Document, the Subordination Agreement
among Grand Parent, the Borrower and the Administrative Agent and any other
Subordination Agreement entered into from time to time, the Access Agreements
and any other agreements or documents contemplated hereby or thereby and all
schedules, exhibits and annexes thereto.
Loan Party. Any party to any Loan Document.
----------
Loans. As defined in Section 2.1.
-----
Material Adverse Effect. An effect resulting from any circumstance or
-----------------------
event of whatever nature (including any adverse determination in any litigation)
which does, or could reasonably be expected to
(a) materially and adversely impair the validity or enforceability of
any of the Loan Documents or the Administrative Agent's or any Lender's
rights or remedies with respect thereto;
16
(b) materially and adversely impair the ability of any Omnipoint Loan
Party to pay its Obligations in accordance with their terms;
(c) cause a Default;
(d) materially and adversely affect the business, property, prospects,
operations, or financial or other condition of the Omnipoint Loan Parties,
taken as a whole; or
(e) materially and adversely impair or affect the Collateral or
Lender's Liens on the Collateral or the priority of such Liens.
Material Contract. With respect to any Person, each contract to which such
-----------------
Person is a party involving aggregate consideration payable to or by such Person
of $10,000,000 or more in any 12-month period or otherwise material to the
business, condition (financial or otherwise), operations, performance,
properties or prospects of such Person.
Materials of Environmental Concern. Any chemicals, pollutants or
----------------------------------
contaminants, hazardous substances (as such term is defined under CERCLA), solid
wastes and hazardous wastes (as such terms are defined under the RCRA), toxic
materials, oil or petroleum and petroleum products, by products or breakdown
products or any other material subject to regulation under any Environmental
Laws.
Maturity Date. [*], as such Maturity Date may be accelerated pursuant to
-------------
Section 10.1.
Mortgage. The Mortgage and Security Agreement, substantially in the form
--------
of Exhibit H, granted by the Borrower in favor of the Administrative Agent, as
amended from time to time in compliance with the Loan Documents.
MTA. Any "major trading area" as set forth on the Rand ▇▇▇▇▇▇▇ 1992
---
Commercial Atlas & Marketing Guide, 123rd Edition, at pages 38-39 ("BTA/MTA
Map") and utilized by the FCC in dividing the 50 states, the District of
Columbia and United States territories into 51 MTAs for the purpose of licensing
PCS Systems.
Multiemployer Plan. A "multiemployer plan" as defined in Sections
------------------
4001(a)(3) and 3(37) of ERISA, and to which the Borrower or any ERISA Affiliate
is making, or is obligated to make, contributions or has made, or been obligated
to make, contributions.
Necessary Authorizations. All approvals and licenses from, and all filings
------------------------
and registrations with, any governmental or other regulatory authority,
including the FCC Licenses for the New York PCS Network and all grants,
approvals, licenses, filings and registrations under the Communications Act,
necessary in order to enable the Borrower and its Subsidiaries to own,
construct, maintain and operate PCS Systems.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
17
Net Cash Proceeds. With respect to any Person, (a) with respect to any
-----------------
Permitted Asset Sale, the proceeds of such Permitted Asset Sale in the form of
cash net of (i) brokerage commissions and other fees and expenses (including
fees and expenses of counsel and investment bankers) related to such Permitted
Asset Sale, (ii) provisions for all taxes as a direct result of such Permitted
Asset Sale, without regard to the consolidated results of operations of such
Person and its Subsidiaries, taken as a whole, (iii) payments made to repay
Indebtedness or any other obligation outstanding at the time of such Permitted
Asset Sale that either (A) is secured by a Lien on the property or assets sold
or (B) is required to be paid as a result of such sale and (iv) appropriate
amounts to be provided by such Person or any Subsidiary of such Person as a
reserve against any liabilities associated with such Permitted Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Permitted Asset Sale, all
as determined in conformity with GAAP and (b) with respect to any issuance or
sale of Capital Stock, the proceeds of such issuance or sale in the form of cash
or cash equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of cash or cash equivalents (except
to the extent such obligations are financed or sold with recourse to such Person
or any Subsidiary of such Person) and proceeds from the conversion of other
property received when converted to cash or cash equivalents, net of attorney's
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultant and other fees incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
Net Income. With respect to any Person for any period, net income (or
----------
loss) of such Person determined in accordance with GAAP for such period.
New York MTA. MTA No. 1.
------------
New York PCS Network. The PCS networks in the New York MTA to be
--------------------
constructed pursuant to the FCC License for such MTA awarded to the Borrower.
Non-Party Subsidiary. Any Subsidiary of Grand Parent which is not an
--------------------
Omnipoint Loan Party.
Non-U.S. Lender. As defined in Section 4.3(e).
---------------
Note Purchase Agreement. The Note Purchase Agreement, dated as of the date
-----------------------
hereof, among the Borrower, the purchasers of notes listed therein, DLJ, GSCP
and NationsBank, N.A. as the same may be amended, supplemented or otherwise
modified from time to time.
Notes. The Promissory Notes substantially in the form of Exhibit A issued
-----
by the Borrower hereunder.
Notice of Conversion or Continuation. As defined in Section 2.6.
------------------------------------
18
Obligations. All indebtedness, obligations and liabilities of each
-----------
Omnipoint Loan Party to the Administrative Agent or any Lender, arising or
incurred under this Agreement or any of the other Loan Documents or otherwise in
respect of any of the Loans or any of the Notes or other instruments at any time
evidencing any thereof, existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, or
whether arising by contract, operation of law or otherwise.
ODCI. Omnipoint Data Company, Inc., a Delaware corporation.
----
OHI. Omnipoint Holdings, Inc., a Delaware corporation.
---
OHI Guaranty. The Guaranty issued by OHI to the Administrative Agent,
------------
substantially in the form of Exhibit N, as amended from time to time in
compliance with the Loan Documents.
OHI Pledge Agreement. The Pledge Agreement between OHI and the
--------------------
Administrative Agent substantially in the form of Exhibit O, as amended from
time to time in compliance with the Loan Documents, which agreement shall secure
the OHI Guaranty of the Obligations of the Borrower with respect to the Tranche
B Loans only.
OII. Omnipoint Investments, Inc., a Delaware corporation, created solely
---
for the purpose of investing all or a portion of Grand Parent's and its
Subsidiaries' cash and cash equivalents.
OIT. Omnipoint Investments Two, Inc., a Delaware corporation, created
---
solely for the purpose of investing all or a portion of Grand Parent's and its
Subsidiaries' cash and cash equivalents.
OIT Guaranty. The Guaranty issued by OIT to the Administrative Agent,
------------
substantially in the form of Exhibit P, as amended from time to time in
compliance with the Loan Documents.
OIT Securities Account Control Agreement. The OIT Securities Account
----------------------------------------
Control Agreement between OIT and the Administrative Agent for the benefit of
the Lenders and the Secured Creditors under the Intercreditor Agreement,
substantially in the form of Exhibit Q, as amended from time to time in
compliance with the Loan Documents, which agreement shall secure the OIT
Guaranty of the Borrower's Obligations with respect to the Tranche B Loans only.
Omnipoint Entity. Grand Parent and each of its direct and indirect
----------------
Subsidiaries.
Omnipoint Loan Parties. Each Guarantor, the Borrower and Grand Parent.
----------------------
Operating Agreement. The agreement between the Borrower and the License
-------------------
Subsidiary pursuant to which the License Subsidiary grants a sublicense in, or a
right to
19
operate, use and manage, its FCC Licenses to the Borrower, substantially in the
form of Exhibit R.
Other Taxes. As defined in Section 4.3(b).
-----------
OTI. Omnipoint Technologies, Inc., a Delaware corporation.
---
Parent. Omnipoint PCS, Inc., a Delaware corporation.
------
Parent Guaranty. The guaranty of Parent in favor of the Administrative
---------------
Agent and the Lenders, substantially in the form of Exhibit I, as amended from
time to time in compliance with the Loan Documents.
Parent Pledge Agreement. The Pledge Agreement among Parent and the
-----------------------
Administrative Agent for the benefit of the Lenders and the Secured Creditors
under the Intercreditor Agreement, substantially in the form of Exhibit J, as
amended from time to time in compliance with the Loan Documents.
Participant. As defined in Section 12.7(f).
-----------
Payment Date. Subject to Section 2.7(c), the last Business Day of each
------------
September, December, March and June.
PBGC. The Pension Benefit Guaranty Corporation created by (S) 4002 of
----
ERISA, or any Governmental Body succeeding to the functions thereof.
PCS. The business of providing wireless communications services consistent
---
with FCC guidelines.
PCS System. A PCS radio telephone system constructed and operated pursuant
----------
to a License therefor.
Permitted Asset Sale. Any of the following:
--------------------
(i) sales of assets of Grand Parent or any of its Subsidiaries in the
ordinary course of business;
(ii) sales of obsolete equipment or inventory of Grand Parent or any
of its Subsidiaries;
(iii) with respect to the Borrower, sales of assets (other than the
FCC Licenses for the New York PCS Network) the proceeds of which do
not exceed [*] in any fiscal year or [*] in the aggregate prior to the
Maturity Date; provided however that such sales must be at fair market
value and the consideration therefor must consist of at least [*] cash
or cash equivalents; and provided further that the Net Cash Proceeds
must be reinvested
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
20
in the Borrower's business within 270 days from the receipt of
such proceeds or, if not so reinvested, applied on the 271st day
following such receipt to repay the Loans in accordance with
Section 3.4;
(iv) with respect to Grand Parent and each Non-Party Subsidiary, sales
of assets for fair market value, provided that Grand Parent or such
Non-Party Subsidiary must receive consideration for such sales
consisting of at least [*] cash or cash equivalents; provided further
that the Net Cash Proceeds of such sales must be reinvested in Grand
Parent or its Non-Party Subsidiar ies within 270 days from the
receipt of such proceeds or, if not so rein vested, applied on the
271st day following such receipt to repay (a) senior secured
Indebtedness of Grand Parent or such Non-Party Subsidiaries as
required thereby or (b) the Loans; and provided further that in the
case of "C" Block Licenses and "F" Block Licenses, such sales may be
in consider ation (which shall be counted as cash consideration) for
forgiveness or assumption of Indebtedness equal to the value of such
Licenses (or portion thereof sold pursuant to a Permitted
Disaggregation) as determined in good faith by Grand Parent's board of
directors.
(v) a sale of up to [*] of the Capital Stock of the Parent, provided
that [*]
Permitted C-Block FCC License Transfer. A disposition of a C-Block
--------------------------------------
License, in whole, including any Permitted Disaggregation, in respect of any BTA
as to which (a) the transferee of such C-Block License is the FCC and (b) after
giving effect to such disposition no Omnipoint Entity shall have any liability
in respect of Indebtedness to the FCC for the deferred purchase price of such
FCC License, except in the case of any Permitted Disaggregation any Omnipoint
Entity may remain liable in respect of a portion of the Indebtedness in respect
of such FCC License equal to the amount of Indebtedness owing to the FCC
immediately prior to such transfer, multiplied by a fraction, the numerator of
which is the amount of spectrum (measured in MHz) retained by any Omnipoint
Entity in connection with such Permitted Disaggregation and the denominator of
which is 30 MHz.
Permitted Disaggregation. A disposition of a portion of or any rights to
------------------------
use spectrum under any FCC License in connection with a disaggregation thereof
approved by the FCC pursuant to which Grand Parent or any of its Non-Party
Subsidiaries retains either (i) the right to use a portion of spectrum under
such FCC License or (ii) an FCC License covering a portion of the spectrum
formerly covered by such FCC License.
Permitted Liens. Liens, security interests and other encumbrances
---------------
permitted by Sections 7.2.
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
21
Person. Any natural person, corporation, firm, joint venture, limited
------
liability company, partnership, association, enterprise, trust or other entity
or organization, or any government or political subdivision or any agency,
department or instrumentality thereof.
Plan. With respect to Grand Parent or any ERISA Affiliate, at any time, an
----
employee pension benefit plan as defined in (S) 3(2) of ERISA (other than a
Multiemployer Plan) that is covered by Title IV of ERISA or subject to the
minimum funding standards under (S) 412 of the IRC and
(a) is maintained for the employees of Grand Parent or any ERISA
Affiliate, or
(b) was so maintained and in respect of which the Borrower or any
ERISA Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event that such plan has been or were to be terminated.
Post Default Investments. So long as no payment default exists at the
------------------------
Borrower, Investments made pursuant to Section 7.4(i) after and during the
existence and continuance of a Default to the extent (but only to the extent)
that such Investments are made to (a) avoid the occurrence of a new Default, or
where the failure to make such Investments could be reasonably expected to have
a Material Adverse Effect, provided that no Event of Default has occurred and
the entire outstanding principal balance of the Loans has not been accelerated
prior to the Maturity Date; (b) cure the event which has given rise to such
Default; (c) make payments as and when due to the FCC for the deferred purchase
price of FCC Licenses; (d) make Investments in the Borrower or the License
Subsidiary; and (e) comply with the terms of any equity or loan commitment of
Grand Parent in existence prior to the date of such Default.
Potential Lender. As defined in Section 2.1(b)(ii).
----------------
Preferred Stock. With respect to any Person, any and all shares,
---------------
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's preferred or preference equity, whether
now outstanding or issued after the Closing Date, including, without limitation,
all series and classes of such preferred or preference equity.
Prepayment Premium. As defined in Section 3.3(b).
------------------
Property. All types of real, personal, tangible, intangible or mixed
--------
property, including the FCC Licenses for the New York PCS Network.
Qualified Investor. [*]
------------------
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* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
22
Rate Hedging Agreements. (a) Any and all agreements, devices or
-----------------------
arrangements designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates applicable to
such party's assets, liabilities or exchange transactions, including, but not
limited to dollar-denominated or cross-currency interest-rate exchange
agreements, forward-currency-exchange agreements, interest-rate-cap or dollar-
protection agreements, forward-rate-currency or interest-rate options, puts and
warrants, and (b) any and all cancellations, buy backs, reversals, terminations
or assignments of any of the foregoing.
RCRA. The Resource Conservation and Recovery Act of 1976, as amended,
----
42USCA (S) 6901 et seq.
Real Estate. Any parcel of real property or any facility currently (or for
-----------
purposes of compliance with Environmental Laws, formerly) owned, operated or
controlled by any Omnipoint Entity.
Register. As defined in Section 12.7(c).
--------
Reportable Event. The occurrence of any of the events set forth in (S)
----------------
4043(c) of ERISA or the regulations thereunder with respect to a Plan.
Required Amount. The amount of the Total Commitment minus amounts borrowed
---------------
(excluding any Increased Commitments).
Required Lenders. At any time that (i) Commitments are outstanding, at
----------------
least 51% of the aggregate of (a) the then-outstanding aggregate unpaid
principal amount of Loans and (b) the then-unfunded Commitments; and (ii)
Commitments are not outstanding, at least 51% of the aggregate of the then-
outstanding aggregate unpaid principal amount of Loans.
Required Secured Creditors. With respect to the Secured Creditors, (i) at
--------------------------
any time that Commitments are outstanding, at least 51% of the aggregate of (a)
the then-outstanding aggregate unpaid principal amount of Loans, (b) the then-
outstanding aggregate unpaid principal amount of Senior Secured Notes and (c)
the then-unfunded Commitments; and (ii) at any time that Commitments are not
outstanding, at least 51% of the aggregate of (a) the then-outstanding aggregate
unpaid principal amount of Loans and (b) the then-outstanding aggregate unpaid
principal amount of Senior Secured Notes.
Revenue. For any period, the revenues of the Borrower and its
-------
Subsidiaries during such period, determined on a consolidated basis in
accordance with GAAP.
Secured Creditors. The meaning specified in the Intercreditor Agreement.
-----------------
Senior Notes. The notes issued by Grand Parent under the Indentures.
------------
Senior Secured Notes. The Notes issued under the Note Purchase Agreement.
--------------------
23
Services Agreement. The Services Agreement between Omnipoint
------------------
Communications Services, Inc. and the Borrower, substantially in the form of
Exhibit S.
Significant Entities. Each of the Borrower, Grand Parent and each of its
--------------------
Significant Subsidiaries, and each Guarantor.
Significant Subsidiary. With respect to Grand Parent at any date of
----------------------
determination, any Subsidiary of Grand Parent that, together with its
Subsidiaries, (i) for the most recent fiscal year of Grand Parent, accounted for
more than 10% of the consolidated revenues of Grand Parent and its Subsidiaries
or (ii) as of the end of such fiscal year, was the owner of more than 10% of the
consolidated assets of Grand Parent and its Subsidiaries (or, in the case of any
Subsidiary which owns "C" Block Licenses, 10% of the net consolidated assets of
Grand Parent and its Subsidiaries), all as set forth on the most recently
available consolidated financial statements of Grand Parent for such fiscal
year.
Solvent. With respect to any Person on a particular date, the condition
-------
that on such date,
(a) the present fair salable value of the assets of such Person is
greater than the total amount that will be required to pay the probable
liabilities of such Person as and when they become due, including
Contingent Obligations, of such Person;
(b) such Person is paying, and believes that it will be able to pay in
the future, its debts generally as and when they become due; and
(c) such Person is not engaged in business or a transaction, or is not
about to engage in business or a transaction, for which such Person's
Property would constitute an unreasonably small amount of capital.
The determination referred to in clause (a) above of the "present fair salable
value" of the FCC License for the New York PCS Network shall disregard the
effect of restrictions on transfer of such License by the FCC during the initial
three-year period.
Subordination Agreement. Any Subordination Agreement executed by an
-----------------------
Omnipoint Entity and in substantially the form of Exhibit K.
Subscriber. [*]
----------
Subsequent Drawdown Date. The date of any Borrowing after the Closing Date
------------------------
and prior to the Last Drawdown Date.
Subsequent Loans. As defined in Section 2.1(a).
----------------
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
24
Subsidiary. With respect to any Person, any corporation, partnership,
----------
association, joint venture or other entity in which such Person, directly or
indirectly through one or more Subsidiaries, owns more than 50% of the
outstanding Voting Stock.
Subsidiary Guaranty. The Guaranty issued by the License Subsidiary to the
-------------------
Administrative Agent, substantially in the form of Exhibit L, as amended from
time to time in compliance with the Loan Documents.
Subsidiary Security Agreement. The Subsidiary Security Agreement between
-----------------------------
the License Subsidiary and the Administrative Agent, substantially in the form
of Exhibit M, as amended from time to time in compliance with the Loan
Documents, which agreement shall secure the Subsidiary Guaranty of the
Obligations of the Borrower with respect to the Tranche B Loans only.
Syndication Agent. DLJ Capital Funding, Inc., as Syndication Agent under
-----------------
this Agreement.
Total Commitment. At any time, the sum of the Commitments of all of the
----------------
Lenders at such time.
Total Covenant Indebtedness. The amount of Total Indebtedness minus all
---------------------------
Intercompany Indebtedness.
Total Indebtedness. At any time, the aggregate principal amount of all
------------------
Indebtedness of the Borrower and its Subsidiaries outstanding.
Total Interest Expense. For any period, the aggregate amount of interest
----------------------
required to be accrued by the Borrower or its Subsidiaries during such period on
all Indebtedness of the Borrower and its Subsidiaries outstanding during all or
any part of such period, whether such interest was or is required to be
reflected as an item of expense or capitalized, including payments consisting of
interest in respect of Capitalized Leases and including arrangement fees,
commitment fees, agency fees, facility fees, origination fees, balance-
deficiency fees and similar fees or expenses in connection with the borrowing of
money, all as determined in accordance with GAAP; provided that (a) any
--------
origination fee paid from the proceeds of a financing shall be treated as being
amortized evenly over the term of such financing for purposes of determining
Total Interest Expense for any period and (b) notwithstanding clause (a) above,
fees payable pursuant to Section 2.3 under all circumstances shall be treated
as accrued on the date when payable.
Tranche A Lender. Any Lender which makes or has Commitments with respect
----------------
to Tranche A Loans.
Tranche A Loan Amount. The total amount of Tranche A Commitments as set
---------------------
forth in Annex 1 hereto.
25
Tranche A Loans. The portion of the Initial Loans in an amount equal to
---------------
$229,500,000 (which amount together with the Tranche A Amount under the Note
Purchase Agreement is equal to the amount of Existing Bank Debt outstanding as
of the Closing Date), as the same may be increased pursuant to Section 12.7(i).
Tranche B Lender. Any Lender which makes or has Commitments with respect
----------------
to Tranche B Loans.
Tranche B Loan Amount. The total amount of Tranche B Commitments as set
---------------------
forth in Annex 1 hereto.
Tranche B Loans. All Loans which are funded on the Closing Date but which
---------------
are not Tranche A Loans, as the same may be increased pursuant to Section
12.7(i).
Tranche C Lender. Any Lender which makes or has Commitments with respect
----------------
to Tranche C Loans.
Tranche C Loans. All Loans which are Subsequent Loans or Final Loans.
---------------
Type. As to any Loan, its nature as a Base Rate Loan, or a LIBO Rate Loan.
----
Unrestricted Cash. Cash and cash equivalents of the Borrower or OIT which
-----------------
are not subject to any Lien or restriction, except Liens in favor of the
Administrative Agent for the benefit of the Lenders.
Voting Stock. Capital Stock or similar interests, of any class or classes
------------
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
Working Capital. With respect to any Person on any date of determination,
---------------
the difference between (i) such Person's "current assets" (excluding such
Person's cash and cash equivalents) and (ii) such Person's "current
liabilities," (excluding Indebtedness), each calculated as of such date of
determination in accordance with GAAP.
Working Capital Requirement. With respect to any period, the extent, if
---------------------------
any, by which such Person's Working Capital for such period exceeds such
Person's Working Capital for the immediately preceding period.
Section 1.2 Rules of Interpretation.
-----------------------
(a) A reference to any document or agreement shall include such
document or agreement as amended, restated, modified or supplemented from
time to time in accordance with its terms and the terms of this Agreement.
26
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting
entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) Reference to a particular "Section", "(S) " or Exhibit refers to
that section, "(S)" or that exhibit to this Agreement, unless otherwise
indicated.
(h) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Agreement as a whole and not to any particular section
or subdivision of this Agreement.
Section 1.3 Accounting Terms. Except as otherwise expressly provided
----------------
herein, all accounting terms used herein shall be interpreted, and all financial
statements and certificates and reports as to financial matters required to be
delivered to the Administrative Agent shall be prepared in accordance with the
following ("GAAP"):
----
(a) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors in
effect at December 31, 1996, and
(b) to the extent consistent with such principles, the accounting
practice of the Borrower reflected in its financial statements for the year
ended at the date referred to in clause (a) above,
provided that, if such Board after the date hereof shall promulgate or adopt
--------
principles that are materially different from those in effect at December 31,
1996, the Borrower and the Lenders will endeavor in good faith to amend this
Agreement in order to amend (i) the definition of GAAP to include such different
principles, and (ii) the other provisions of this Agreement so as to reflect in
substance the same limitations and restrictions as in effect prior to such
amendment to the definition of GAAP. Prior to the effective date, if any, of
any such amendment, GAAP shall, however, continue to include only the principles
specified in clause (a) of the preceding sentence.
Section 1.4 Certain Calculations. Any calculation to determine whether
--------------------
the incurrence of Indebtedness under Section 7.1 or the making of a Distribution
under Section 7.5 would give rise to a Default under Section 7.19 shall be on a
pro forma basis and
27
calculated on the assumption that such Indebtedness has been incurred or such
Distribution made, and the proceeds thereof applied, in the case of (i) Section
7.19(c) and (e), on the last day of the most recently ended fiscal quarter prior
to the incurrence of such Indebtedness or the making of such Distribution and
(ii) Section 7.19(d), on the first day of the relevant twelve full month period
immediately preceding the incurrence of such Indebtedness or such Distribution.
ARTICLE II
THE LOANS
---------
Section 2.1 Loans
-----
(a) (i) Subject to and upon the terms and conditions herein set
forth, each Tranche A Lender severally and not jointly agrees to make
Tranche A Loans to the Borrower on the Closing Date, of a sum not to exceed
such Lender's Commitment Percentage of the Tranche A Loan Amount.
Immediately upon the making of the Tranche A Loans, the Commitments of the
Tranche A Lenders shall be automatically terminated.
(ii) Subject to and upon the terms and conditions herein set
forth, each Tranche B Lender severally and not jointly agrees to make
Tranche B Loans to the Borrower on the Closing Date, of a sum not to exceed
such Lender's Commitment Percentage of the Tranche B Loan Amount.
Immediately upon the making of the Tranche B Loans, the Commitments of the
Tranche B Lenders shall be automatically terminated.
(iii) Each Tranche C Lender severally and not jointly agrees to
make Tranche C Loans to the Borrower (x) from time to time after the
Closing Date but prior to the Last Drawdown Date, on the date specified in
the relevant Draw Request, of a sum equal to (A) such Lender's Commitment
Percentage multiplied by (B) the amount requested by the Borrower pursuant
to the relevant Draw Request (each such loan, together with the Final Loans
(as defined below), a "Subsequent Loan"); and (y) on the Last Drawdown Date
if any Commitments remain outstanding, of a sum equal to (A) such
Lender's Commitment Percentage multiplied by (B) the sum of (1) the Total
Commitment minus (2) the aggregate amount previously borrowed (each such
loan, a "Final Loan" and together with the Initial Loans and the Subsequent
Loans, the "Loans").
(iv) The aggregate principal amount of the Loans outstanding
shall not exceed $595,000,000, as such amount may be increased (i) pursuant
to Section 2.1(b) or (ii) by the joinder hereto of new Lenders in
accordance with Section 12.7(i).
28
(b) (i) In the event that after the Closing Date the Borrower
consummates an Equity Issuance, the Borrower may, upon at least 30 days'
notice to the Administrative Agent (who shall promptly provide a copy of
such notice to the other Agents and the Lenders) propose to increase the
aggregate amount of the Commitments by an amount not to exceed $250,000,000
(the amount of any such increase, the "Increased Commitments"). Each
Lender party to this Agreement at such time shall have the right (but no
obligation), prior to the expiration of the 30 day period, to elect by
written notice to the Borrower and the Administrative Agent to increase its
Commitments by a principal amount equal to such Lender's Commitment
Percentage multiplied by the Increased Commitments. Each of the Agents
shall assist and cooperate with (but shall not be obligated to commit to
any Increased Commitments to) the Borrower in connection with obtaining the
Increased Commitments.
(ii) If any Lender party to this Agreement shall elect not to
increase its Commitment pursuant to clause (i) above, the Borrower may
designate another financial institution or institutions or investment fund
or funds (which may be, but need not be, one or more of the existing
Lenders) consented to by the Agents and the Borrower and which would
otherwise be permitted to be a Lender pursuant to Section 12.7 (such
consent not to be unreasonably withheld or delayed) (each, a "Potential
Lender") which at the time agree to (i) in the case of such Potential
Lender that is an existing Lender, increase its Commitment and (ii) in the
case of any other such Potential Lender (an "Additional Lender"), become a
party to this Agreement. The sum of the increases in the Commitments of
the existing Lenders pursuant to this clause (ii) plus the Commitments of
the Additional Lenders shall not in the aggregate exceed the amount of the
Increased Commitments.
(iii) An increase in the aggregate amount of the Commitments pursuant
to this Section 2.1(b) shall become effective upon the receipt by the
Administrative Agent of an agreement in form and substance satisfactory to
the Administrative Agent signed by the Borrower, by each Additional Lender
and by each other Lender whose Commitment is to be increased, setting forth
the new Commitments of such Lenders and setting forth the agreement of each
Additional Lender to become a party to this Agreement and to be bound by
all the terms and provisions hereof, together with such evidence of
appropriate corporate authorization on the part of the Borrower with
respect to the Increased Commitments and such opinions of counsel for the
Borrower with respect to the Increased Commitments as the Administrative
Agent may reasonably request. So long as no Default is in existence or
would result therefrom, the Borrower may borrow under the Increased
Commitments by following the procedures with respect to Borrowings set
forth herein; provided that (i) Installment Amounts shall be payable with
respect to Loans under the Increased Commitment on the next succeeding date
on which Installment Amounts would otherwise be due and shall be paid on
such dates thereafter, and (ii) the Maturity Date with respect to Loans
under the Increased Commitments shall be the same as for the other Loans.
29
(c) Any failure by the Borrower to borrow the Required Amount on or
before the Last Drawdown Date, or any voluntary termination of the
Commitments prior to the Last Drawdown Date, shall result in the immediate
and automatic termination of all of the remaining Commitments, and the
Borrower shall, immediately upon such failure to borrow or termination,
pay to the Administrative Agent (for distribution to the Lenders) a fee
equal to the product of (i) the then prevailing Prepayment Premium
multiplied by (ii) the sum of (x) the Total Commitment (excluding the
-------------
Increased Commitments) minus (y) all amounts borrowed by the Borrower prior
-----
to the date thereof.
(d) The Initial Loans shall consist of Tranche A Loans and Tranche B
Loans. Except with respect to the Collateral (as provided in the Loan
Documents), the Tranche A Loans and the Tranche B Loans shall be treated
the same under each of the Loan Documents. The Administrative Agent shall
designate in the Register the amount of each Lender's Loans and the nature
of each such Loan as a Tranche A Loan, Tranche B Loan or Tranche C Loan.
(e) The aggregate amount at any time outstanding under the Loans may
not exceed the then Total Commitments. The Commitments of each Lender (and
the Total Commitments) shall be reduced by an amount equal to the amount of
each Borrowing applicable to each such Lender's Commitment hereunder. The
Commitments (excluding any Increased Commitments) shall expire on [*] if
not utilized on or prior to such date.
Section 2.2 Making the Loans.
----------------
(a) Each Loan shall be made on notice, given not later than 11:00 A.M.
(New York City time) on the third Business Day prior to the date of the
proposed Loan in the case of a Loan consisting of LIBO Rate Loans, or the
first Business Day prior to the date of the proposed Loan in the case of a
Loan consisting of Base Rate Loans, by the Borrower to the Administrative
Agent, which shall give to each Lender prompt notice thereof by telecopier.
Each such notice of a Loan (a "Draw Request") shall be by telecopier
------------
substantially in the form of Exhibit B, specifying therein
(i) the requested date of such Loan (which shall be a Business
Day);
(ii) the portion of such Loan which will be made as a Base Rate
Loan and the portion of such Loan which will be made as a LIBO Rate
Loan;
(iii) the requested aggregate principal amount of such Loan;
(iv) the account to which the proceeds of such Loan shall be
paid; and
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
30
(v) the initial Interest Periods applicable to any such Loan
which will be made as a LIBO Rate Loan.
Each Draw Request shall be accompanied by such additional documents as may
be required by Article VIII and Article IX. Each Lender shall, upon
fulfillment of the applicable conditions set forth in Articles VIII and IX,
before 11:00 A.M. (New York City time) on the date of such Loan, make
available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Office, in same-day
funds, such Lender's Loan (determined by multiplying the amount of the
Borrowing by such Lender's Commitment Percentage). After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Articles VIII and IX, the Administrative
Agent will wire transfer same-day funds in the aggregate principal amount
of such Loan to such account as the Borrower shall have specified in its
Draw Request. If the Administrative Agent shall receive such funds and
if such applicable conditions shall be fulfilled prior to 11:00 A.M. (New
York Time) on the date of any proposed Loan, the Administrative Agent shall
commence the wire transfer (or direct its bank to commence the wire
transfer) of such funds to such account by 1:00 P.M. (New York Time).
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) the aggregate principal amount of any Borrowing comprised of LIBO Rate
Loans shall not be less than $5,000,000 and (ii) the Borrower may not
request LIBO Rate Loans if the obligation of the Lenders to make LIBO Rate
Loans shall then be suspended pursuant to Section 2.5 or 4.1.
(c) Each Draw Request shall be irrevocable and binding on the Bor
rower.
(d) Unless the Administrative Agent shall have received notice from a
Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such
Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such Loan
in accordance with subsection (a) of this Section 2.2 and the
Administrative Agent may, at its option, in reliance upon such assumption,
make available to the Borrower on such date a corresponding amount. If and
to the extent that such Lender shall not have so made such portion
available to the Administrative Agent, such Lender and the Borrower
severally will repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to Loans comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute a Loan by such Lender for
purposes of this Agreement.
31
(e) The failure of any Lender to make the Loan to be made by it shall
not relieve any other Lender of its obligation, if any, hereunder to make
its Loan hereunder, but neither the Administrative Agent nor any Lender
shall be responsible for the failure of any other Lender to make the Loan
to be made by such other Lender.
Section 2.3 Fees.
----
(a) The Borrower shall pay to the Agents such fees as are set forth in
the Omnipoint Corporation Senior Credit Facility Fee Letter dated January
12, 1998 (the "Fee Letter"), among Grand Parent, the Borrower, the
Syndication Agent, DLJSC and GSCP, as amended to, among other things,
include the Administrative Agent and NationsBank, N.A. as parties,
pertaining to the Permanent Facility (as defined in the Fee Letter).
(b) The Borrower shall pay to the Administrative Agent, for the
account of each Tranche C Lender, a commitment fee for the period
commencing on the date hereof and ending on the Last Drawdown Date (or such
earlier date that all of the Commitments shall have been fully utilized) of
[*] per annum of the daily average undrawn Commitments of such Lender. Such
fee shall be due and payable on the Last Drawdown Date or such earlier date
on which the Commitments are terminated in full. The term "Commitment" as
used in this clause (b) shall exclude any Increased Commitment.
(c) The Borrower shall pay to the Administrative Agent an
administrative agent's fee as set forth in the Agent's Fee Letter.
Section 2.4 Interest.
--------
(a) The Borrower shall pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount shall be
paid in full, at the following rates per annum:
(i) for all Base Rate Loans, a rate per annum equal at all times
to the sum of (A) the Base Rate in effect from time to time, plus (B)
the Appli cable Margin applicable to such Base Rate Loan, payable in
arrears quarterly on the last Business Day of each March, June,
September, December, and on the date any such Base Rate Loan shall be
paid in full;
(ii) for all LIBO Rate Loans, a rate per annum equal at all times
during each Interest Period for such LIBO Rate Loan to the sum of (A)
the LIBO Rate for such Interest Period for such LIBO Rate Loan, plus
(B) the Applicable Margin applicable to such LIBO Rate Loan, payable
in arrears on the last day of such Interest Period, in the case of an
Interest Period of six months, on the date occurring three months from
the first day of such
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
32
Interest Period and on the date such LIBO Rate Loan shall be paid in
full or Converted.
(b) Upon the occurrence and during the continuance of any Event of
Default, the Borrower shall pay interest on the unpaid principal amount of
each Loan owing to each Lender, payable on demand, at a rate per annum
equal to the rate which is the greater of (i) 2.0% per annum in excess of
the rate per annum then borne by such Loan and (ii) a rate per annum equal
to the Base Rate plus 2% per annum plus the Applicable Margin. With
respect to the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, the Borrower shall pay interest
thereon, to the extent permitted under applicable law, in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be
paid on Base Rate Loans pursuant to clause (a)(i) above.
Section 2.5 Interest Rate Determination.
----------------------------
(a) If, with respect to any LIBO Rate Borrowing, the Required Lenders
notify the Administrative Agent that the LIBO Rate for any Interest Period
for such Borrowing will not adequately reflect the cost to such Required
Lenders of making, funding or maintaining their respective LIBO Rate Loans
comprising such Borrowing for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each such LIBO Rate Loan comprising such Borrowing will
automatically, on the last day of the then-existing Interest Period
therefor, Convert into a Base Rate Loan, and
(ii) the obligation of the Lenders to make, or to Convert Loans
into, LIBO Rate Loans shall be suspended immediately,
until the Administrative Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
(b) On the date on which the aggregate unpaid principal amount of any
LIBO Rate Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, the Loans comprising such Borrowing
shall, subject to the provisions of Section 3.4(a) and 12.4(b),
automatically Convert into Base Rate Loans.
(c) Upon the occurrence and during the continuance of any Event of
Default,
(i) each LIBO Rate Loan will automatically, on the last day of
the then-existing Interest Period therefor, Convert into a Base Rate
Loan and
33
(ii) the obligation of the Lenders to make, or to Convert Loans
into, LIBO Rate Loans shall be suspended immediately.
(d) If the Administrative Agent cannot determine the LIBO Rate for any
LIBO Rate Loans proposed to be made or Converted from Base Rate Loans,
(i) the Administrative Agent shall forthwith notify the Borrower
and the Lenders that the interest rate cannot be determined for such
LIBO Rate Loans,
(ii) each such Loan will automatically, on the last day of the
then-existing Interest Period therefor, Convert into a Base Rate Loan,
and
(iii) the obligation of the Lenders to make, or to Convert Loans
into, LIBO Rate Loans shall be suspended immediately,
until the Administrative Agent shall notify the Borrower and the Lenders
that the circumstances causing such suspension no longer exist.
Section 2.6 Conversion or Continuation of Loans.
-----------------------------------
(a) Subject to the other provisions hereof, the Borrower shall have
the option (i) to Convert at any time all or any part of outstanding Base
Rate Loans to LIBO Rate Loans, (ii) to Convert all or any part of
outstanding LIBO Rate Loans which comprise part of the same Borrowing to
Base Rate Loans, on the expiration date of the Interest Period applicable
thereto, or (iii) to continue all or any part of outstanding LIBO Rate
Loans which comprise part of the same Borrowing as LIBO Rate Loans for an
additional Interest Period, on the expiration date of the Interest Period
applicable thereto; provided that no Loan may be continued as, or converted
--------
into, a LIBO Rate Loan when any Event of Default has occurred and is
continuing. Notwithstanding anything to the contrary set forth herein, if
the Borrower shall fail to give notice of any continuation of a LIBO Rate
Loan as set forth herein, or if such continuation shall not be permitted
pursuant to the terms hereof, any such LIBO Rate Loans shall be
automatically converted to Base Rate Loans on the last day of such then
expiring Interest Period.
(b) In order to elect to Convert or continue a Loan under this Section
2.6, the Borrower shall deliver an irrevocable notice thereof substantially
in the form of Exhibit U (a "Notice of Conversion or Continuation") to the
Administrative Agent no later than 11:00 A.M., New York time, (i) at least
one Business Day in advance of the proposed conversion date in the case of
a Conversion to a Base Rate Loan and (ii) at least three Business Days in
advance of the proposed Conversion or continuation date in the case of a
Conversion to, or a continuation of, a LIBO Rate Loan. A Notice of
Conversion or Continuation shall specify (w) the requested Conversion or
continuation date (which shall be a Business Day), (x) the amount of the
Loan to be Converted or continued, (y) whether a Conversion or continuation
is requested, and
34
(z) in the case of a Conversion to, or a continuation of, a LIBO Rate Loan,
the requested Interest Period. Promptly after receipt of a Notice of Conver
sion or Continuation under this Section 2.6(b), the Administrative Agent
shall notify each Lender of such conversion.
Section 2.7 Payments and Computations.
-------------------------
(a) The Borrower shall make each payment hereunder and under the Notes
not later than 11:00 A.M. (New York City time) on the day when due in U.S.
dollars to the Administrative Agent at the Administrative Agent's Office in
same-day funds to such account as the Administrative Agent shall have
notified the Borrower. Payments received by the Administrative Agent after
such time shall be deemed to have been received on the next Business Day.
The Administrative Agent will promptly thereafter cause to be distributed
(i) like funds relating to the payment of principal or interest and other
amounts ratably (other than amounts payable pursuant to Sections 4.2, 4.3
or 12.4) to the Lenders for the account of their respective Applicable
Lending Offices, and (ii) like funds relating to the payment of any other
amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with
the terms of this Agreement.
(b) All computations of interest or fees shall be made by the
Administra tive Agent on the basis of a year of 360 days, for the actual
number of days (including the first day but excluding the last day)
occurring in the period for which such interest or facility fees are
payable. Each determination by the Administrative Agent of an interest
rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(c) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on
the next-succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or facility fee,
as the case may be; provided that, if such extension would cause payment of
--------
interest on or principal of LIBO Rate Loans to be made in the next-
following calendar month, such payment shall be made on the next-preceding
Business Day.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due and owing to the
Lenders hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Adminis trative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each
Lender on such due date an amount equal to the amount then due such Lender.
If and to the extent the Borrower shall not have so made such payment in
full to the Administrative Agent, each Lender shall repay to the
Administrative Agent forthwith on demand such amount distrib uted to such
Lender together with interest thereon, for each day from the date such
amount
35
is distributed to such Lender until the date such Lender repays such amount
to the Administrative Agent, at the Federal Funds Rate.
(e) To the extent permitted by law, all payments by the Borrower
hereunder and under any of the other Loan Documents shall be made without
setoff or counterclaim.
Section 2.8 Sharing of Payments, Etc. Subject to the Intercreditor
------------------------
Agreement, if any Lender shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Loans owing to it (other than pursuant to Sections 4.2, 4.3 or
12.4) in excess of its share of payments on account of the Loans obtained by all
the Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Loans owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided that if all or any portion of such excess payment is thereafter
--------
recovered from such purchasing Lender, such purchase from each Lender shall be
rescinded and such Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (a) the amount of such
Lender's required repayment to (b) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.8 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off upon and
during the continuance of an Event of Default) with respect to such participa
tion as fully as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
Section 2.9 Use of Proceeds. The proceeds of the Loans shall be available
---------------
(and the Borrower shall use such proceeds)
(i) with respect to the Tranche A Loans (together with the
Tranche A Amounts (as defined in, and under, the Note Purchase
Agreement)) only, to repay in full the Existing Bank Debt on the
Closing Date;
(ii) subject to Section 7.5 hereof, to make direct or indirect
(through another Subsidiary of Grand Parent) Distributions to Grand
Parent, so long as such Distributions are immediately invested in the
business of Grand Parent's Subsidiaries; and
(iii) for general corporate purposes of the Borrower and the
License Subsidiary;
provided that all proceeds not applied as specified under clauses (i), (ii) or
(iii) above shall, together with any remaining funded amounts under Tranche B
Loans, be held until used for the purposes described in clauses (ii) and (iii)
above, in a cash account of the Borrower pursuant to the Borrower Securities
Account Control Agreement.
36
Section 2.10 The Notes.
---------
(a) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness owed to such Lender
resulting from each Loan made from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time
under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it will
record (i) the amount of each Loan made hereunder, the Type of each Loan
and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received
by the Administrative Agent hereunder from the Borrower and each Lender's
share thereof.
(c) The entries made in the accounts maintained pursuant to paragraphs
(a) and (b) of this Section 2.10 shall be prima facie evidence (absent
manifest error) of the existence and amounts of the obligations therein
recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall
not in any manner affect the obligations of the Borrower to repay the Loans
in accordance with their terms.
(d) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a Note payable to the order of such Lender (or, if
requested by such Lender, so such Lender and its registered assigns).
Thereafter, the Loans evidenced by such Note and interest thereon shall at
all times (including after assignment pursuant to Section 12.7) be
represented by one or more Notes payable to the order of the payee named
therein (or, if such Note is a registered Note, to such payee and its
registered assigns).
(e) In the event a Lender receives a Note pursuant to the terms
hereof, the Borrower irrevocably authorizes each Lender to make or cause to
be made an appropriate notation on the schedule attached to such Lender's
Note of the making of Loans or (as the case may be) the receipt of
payments. The amount of the Loans set forth on such schedule shall be
prima facie evidence (absent manifest error) of the principal amount
thereof owing and unpaid to such Lender, but the failure to record, or any
error in so recording, any such amount on such schedule shall not limit or
otherwise affect the Obligations of the Borrower hereunder or under the
Notes to make payments of principal of or interest on the Notes when due.
37
ARTICLE III
REPAYMENT AND PREPAYMENT OF THE LOANS
-------------------------------------
Section 3.1 Term/Amortization. The Borrower shall repay the outstanding
-----------------
principal amount of the Loans on the Initial Payment Date and each Payment Date
thereafter until (and including) the Maturity Date, in an amount equal to the
Installment Amount for each such date.
Section 3.2 Mandatory Prepayments of Loans.
------------------------------
(a) The Borrower shall prepay the outstanding Loans (and Notes in
accordance with Section 8.2 of the Note Purchase Agreement) in an amount
equal to 100% of the amount of the Net Cash Proceeds of a Permitted Asset
Sale (other than a sale described in clauses (i) and (ii) of the definition
of "Permitted Asset Sales" in Article I) in excess of [*] from all such
sales in the aggregate to the extent such excess Net Cash Proceeds have not
been reinvested or otherwise applied in accordance with clause (iii) or
(iv), as applicable, of the definition of "Permitted Asset Sales."
(b) No later than 100 days after the end of any fiscal year
commencing on or after [*] during which Grand Parent shall have any Excess
Cash Flow, the Borrower shall prepay the outstanding Loans (and Notes in
accordance with Section 8.2 of the Note Purchase Agreement) in an amount
equal to [*] of such Excess Cash Flow.
(c) All prepayments of the Loans required by Section 3.2(a) and (b)
shall be applied against the Installment Amounts on a pro rata basis among
(i) all such Installment Amounts and (ii) Tranche A Loans, Tranche B Loans
and Tranche C Loans.
Section 3.3 Voluntary Prepayments of Loans.
------------------------------
(a) Subject to Section 3.3(b), upon provision of written notice to
the Administrative Agent at least three Business Days prior to a prepayment
of LIBO Rate Loans and at least one Business Day prior to a prepayment of
Base Rate Loans, the Borrower shall have the right to prepay the Loans (and
Notes pursuant to Section 3.4(d)) in whole or in part from time to time in
an aggregate principal amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, in accordance with Section 3.4.
(b) Any prepayment of the Loans by the Borrower pursuant to Section 3.3(a)
shall be subject to a prepayment premium to be paid to the Administrative Agent
for the benefit of the Lenders determined in accordance with the table set
forth below (a "Prepayment Premium") and payable at the time of such prepayment,
which Prepayment Premium shall not reduce the principal amount owed by the
Borrower.
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
38
Date of Prepayment Amount of Premium (percentage amount
multiplied by principal amount to be re-
From and To and paid)
Including Including
---------------------------------------------------------------------------------------
The Closing Date to the [*] month anniver- [*]
sary thereof
---------------------------------------------------------------------------------------
The day after the [*] month anniversary of [*]
the Closing Date to the [*] month anniver-
sary thereof
---------------------------------------------------------------------------------------
The day after the [*] month anniversary of [*]
the Closing Date to the [*] month anniver-
sary thereof
---------------------------------------------------------------------------------------
The day after the [*] month anniversary of [*]
the Closing Date to the [*] month anniver-
sary thereof
---------------------------------------------------------------------------------------
The day after the [*] month anniversary of [*]
the Closing Date to the [*] month anniver-
sary thereof
---------------------------------------------------------------------------------------
At any time after the [*] month anniversary [*]
of the Closing Date
---------------------------------------------------------------------------------------
Section 3.4 Certain Matters Relating to Repayments and Prepayments.
------------------------------------------------------
(a) On the earlier of the date on which Loans are to be repaid or
prepaid and the date on which notice of such payment or prepayment is
required to be given under this Agreement, if less than all Loans are to be
repaid or prepaid, the Borrower will specify whether the Loan to be
repaid or prepaid shall be a Base Rate Loan or a LIBO Rate Loan and, if a
LIBO Rate Loan is to be repaid or prepaid and more than one LIBO Rate Loan
is outstanding, which such Loan shall be prepaid. Prepayments and
repayments of LIBO Rate Loans made other than on the last day of the
Interest Period applicable thereto shall be subject to the payment by the
Borrower of amounts owed under Section 12.4(b).
(b) All prepayments and repayments pursuant to this Article III shall
be accompanied by such additional amounts as are sufficient to pay accrued
and unpaid interest on the principal amount of the Loans then being prepaid
or repaid.
(c) Loans that are prepaid or repaid may not be reborrowed.
(d) All prepayments and repayments of outstanding Loans and Notes
shall be paid to the Secured Creditors on a pro rata basis according to the
sum of (i)
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
39
aggregate outstanding principal amount of Loans and Commitments
owed to such Lenders (ratably among all Installment Amounts) and (ii)
amounts owing under the Senior Secured Notes.
ARTICLE IV
ILLEGALITY, INCREASED COSTS, CAPITAL ADEQUACY AND INDEMNITIES
-------------------------------------------------------------
Section 4.1 Illegality. Notwithstanding any other provisions herein, if
----------
any present or future law, regulation, treaty or directive or the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
LIBO Rate Loans, such Lender shall forthwith give notice of such circumstances
to the Borrower, the Administrative Agent and the other Lenders and thereupon
(a) the Commitments of such Lender to make LIBO Rate Loans shall
forthwith be suspended until such notifying Lender shall have notified the
Administrative Agent and the Borrower that the circumstance giving rise to
such determination no longer exists (and if such notifying Lender shall
determine that such circumstance no longer exists it shall so notify the
Administrative Agent and the Borrower promptly after determining the same),
and
(b) the aggregate principal amount of such Lender's LIBO Rate Loans,
if any, shall be Converted automatically to Base Rate Loans on the last day
of each Interest Period applicable to such LIBO Rate Loans or within such
earlier period as may be required by applicable law.
Such Lender will designate a different Applicable Lending Office if such
designation will avoid the need for any suspension or Conversions described in
the preceding sentence and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
Section 4.2 Additional Costs and Capital Adequacy.
-------------------------------------
(a) If any present or future applicable law, which expression, as used
herein, includes statutes, rules and regulations thereunder and
interpretations thereof by any competent court having jurisdiction with
respect thereto or by any governmental or other regulatory body or
official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to
time hereafter made upon or otherwise issued to any Lender or the
Administrative Agent by any central bank or other fiscal, monetary or other
authority (whether or not having the force of law), shall
(i) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or
other similar requirements (whether or not having the force of law)
against assets held by,
40
or deposits in or for the account of, or loans by, or commitments of
an office of any Lender, or
(ii) impose on any Lender or the Administrative Agent any other
conditions or requirements with respect to this Agreement, the other
Loan Documents, such Lender's Commitments, or any class of loans, or
commitments of which any of the Loans or such Lender's Commitments
form a part,
and the result of any of the foregoing is to increase the cost to such
Lender of making, funding, issuing, renewing, extending or maintaining any
of the Loans or such Lender's Commitment (taking into account such Lender's
then-existing policies with respect to maintaining capital), then the
Borrower shall pay to the Administrative Agent for the account of such
Lender, within 15 days after demand from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation on an after-tax basis in the light of such circumstances, for
such increased costs.
(b) If any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) or the interpretation
thereof by a court or governmental authority with appropriate jurisdiction,
that in any case becomes effective after the date hereof, affects the
amount of capital required or expected to be maintained by any Lender or
any corporation controlling such Lender and such Lender determines that the
amount of capital required to be maintained by it is increased by or based
upon the existence of such Lender's Commitment or Loans, the Borrower will
pay to such Lender, within 15 days after demand from time to time as
specified by such Lender, additional amounts sufficient to compensate
such Lender or such corporation on an after-tax basis in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's
commitment to lend hereunder.
(c) Each demand by a Lender pursuant to this Section 4.2 shall be
accompanied by a statement setting forth in reasonable detail the basis for
such demand and the computation of such amount, including any method by
which such cost was allocated to the Borrower. In determining the amount
of any compensation, such Lender may use any reasonable averaging or
attribution methods set forth in such demand, and any such methods so used
shall be binding on the Borrower. The amount specified in any such demand
shall be conclusive evidence of the amount owing, absent manifest error.
Such Lender will designate a different Applicable Lending Office if such
designation will avoid the need for or reduce the amount of, any
compensation under this Section 4.2 and will not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. By making any payment
under this Section 4.2, the Borrower is not waiving its right to contest
that the amounts set forth in the certificates are based on manifest error.
41
Section 4.3 Taxes.
-----
(a) Any and all payments by the Borrower hereunder or under the Notes
shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the
---------
case of each Lender and the Administrative Agent, taxes imposed on its
income, and franchise taxes imposed on it in lieu of income taxes, by the
jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on its income, and
franchise taxes imposed on it in lieu of income taxes, by the jurisdiction
of such Lender's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If
-----
the Borrower shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or the
Administrative Agent,
(i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.3) such
Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions
been made,
(ii) the Borrower shall make such deductions, and
(iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under the
Notes or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or the Notes (hereinafter referred to as "Other
-----
Taxes").
-----
(c) The Borrower will indemnify each Lender and the Administrative
Agent for the full amount of Taxes or Other Taxes (including any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this
Section 4.3) paid by such Lender or the Administrative Agent (as the case
may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be
made within 15 days from the date such Lender or the Administrative Agent
(as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred
to in Section 12.2, the original or a certified copy of a receipt
evidencing payment thereof. In the case of any payment hereunder or under
the Notes by or on behalf of the Borrower through an account or branch
outside the United States or on behalf of the Borrower by a payor that is
not a United States person, if the Borrower determines that no
42
Taxes are payable in respect thereof, the Borrower shall furnish, or shall
cause such payor to furnish, to the Administrative Agent, at such address,
an opinion of counsel acceptable to the Administrative Agent stating that
such payment is exempt from Taxes. For purposes of this subsection (d) and
subsection (e) below, the terms "United States" and "United States person"
------------- --------------------
shall have the meanings specified in (S) 7701 of the IRC.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States which is a "bank" within the meaning of Section 881(c)(3)(A)
of the IRC, on or prior to the date of its execution and delivery of this
Agreement (if such Lender is an initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case
of each other such Lender), and from time to time thereafter if requested
in writing by the Borrower (but only so long as such Lender remains
lawfully able to do so), shall provide the Borrower and the Administrative
Agent with Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments of interest pursuant to this
Agreement or the Notes. Each Lender organized under the laws of a
jurisdiction outside the United States which is not a "bank" within the
meaning of Section 881(c)(3)(A) of the IRC and which intends to claim
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c)
of the IRC with respect to payments of "portfolio interest" (each a "Non-
U.S. Lender"), on or prior to the date of its execution and delivery of
this Agreement (if such Lender is an initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case
of each other such Lender), and from time to time thereafter if requested
in writing by the Borrower (but only so long as such Lender remains
lawfully able to do so), shall provide the Borrower and the Administrative
Agent with Internal Revenue Service Form W-8, or any subsequent versions
thereof or successors thereto (and, if such Non-U.S. Lender delivers a Form
W-8, a certificate representing that such Non-U.S. Lender is not a bank for
purposes of Section 881(c) of the IRC, is not a 10-percent shareholder
(within the meaning of Section 871(h)(3)(B) of the IRC) of the Borrower and
is not a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the IRC)), properly completed and duly
executed by such Non-US. Lender claiming complete exemption from, or a
reduced rate of, U.S. Federal withholding tax on payments of interest by
the Borrower under this Agreement or the Notes. If the form provided by a
Lender at the time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero,
withholding tax at such rate shall be consid ered excluded from Taxes. If
any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the
tax payable and information required on the date hereof by Internal Revenue
Service Form 1001 or 4224 or W-8, that the Lender reasonably considers to
be confidential, the Lender shall give notice thereof to the Borrower and
shall not be obligated to include in such form or document such
confidential information.
43
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 4.3 (e)
(other than if such failure is due to a change in law occurring subsequent
----- ----
to the date on which a form originally was required to be provided, or if
such form otherwise is not required under the first sentence of subsection
(e) above), such Lender shall not be entitled to indemnification under
Section 4.3 (c) with respect to Taxes imposed by the United States;
provided that should a Lender become subject to taxes because of its
--------
failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender shall reasonably request and at such Lender's expense
to assist such Lender to recover such Taxes.
(g) If the Borrower is required to pay any amounts to or for the
account of any Lender pursuant to this Section 4.3, such Lender will
designate a different Applicable Lending Office if such designation will
avoid the need for or reduce the amount of any such payment and will not,
in the judgment of such Lender, be otherwise disadvantageous to such
Lender.
Section 4.4 Survival. Without prejudice to the survival of any other
--------
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Article IV shall survive the payment in full of
principal and interest hereunder and under the Notes.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Each of Grand Parent and the Borrower represents and warrants to the
Lenders and the Administrative Agent as follows:
Section 5.1 Corporate Authority.
-------------------
(a) (i) Each Omnipoint Entity is identified on the
organizational chart attached as Schedule 5.1; is a corporation (or
other entity as indicated thereon) duly organized, validly existing
and in good standing under the laws of its state of incorporation or
organization; and its share or other ownership is as indicated
thereon,
(ii) Each Omnipoint Loan Party has all requisite corporate power
to own its Property and conduct its business as now conducted and as
presently contemplated, and
(iii) Each Omnipoint Loan Party is in good standing as a foreign
corporation and is duly authorized to do business in each jurisdiction
where such qualification is necessary in order to conduct its business
as now
44
conducted except where a failure to be so qualified would not have a
Material Adverse Effect.
(b) The execution, delivery and performance of this Agreement and the
other Loan Documents to which any Omnipoint Loan Party is or is to become a
party and the transactions contemplated hereby and thereby
(i) are within the corporate or other authority of such Omnipoint
Loan Party,
(ii) have been duly authorized by all necessary corporate or
other proceedings,
(iii) do not conflict with or result in any breach or
contravention of any provision of material law, statute, rule or
regulation to which such Omnipoint Loan Party is subject or any
judgment, order, writ, injunction, license (including without
limitation, any License) or permit applicable to such Omnipoint Loan
Party or their Property, and
(iv) do not conflict with any provision of the corporate charter
or bylaws of, or any agreement or other instrument binding upon, such
Omnipoint Loan Party or its Property.
(c) The execution and delivery of this Agreement and the other Loan
Documents to which any Omnipoint Loan Party is or is to become a party will
result in valid and legally binding obligations of such Omnipoint Loan
Party enforceable against such Omnipoint Loan Party in accordance with the
respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
Section 5.2 Governmental Approvals. The execution, delivery and
----------------------
performance by each Omnipoint Loan Party of this Agreement and the other Loan
Documents to which such Omnipoint Loan Party is or is to become a party and the
transactions contemplated hereby and thereby do not require the approval or
consent of, or filing with, any Governmental Body other than those already
obtained and for any subsequent informational filing with the Securities and
Exchange Commission.
Section 5.3 Title to Properties. Each Omnipoint Loan Party owns through
-------------------
one or more direct and indirect Subsidiaries all of the assets reflected in the
consolidated balance sheet of Grand Parent as at December 31, 1996 or acquired
since that date (except property and assets sold or otherwise disposed of in the
ordinary course of business since that date), subject to no rights of others,
including any mortgages, leases, conditional sales-agreements, title-retention
agreements, Liens or other encumbrances, except Permitted Liens.
45
Section 5.4 Financial Statements.
--------------------
(a) The Administrative Agent has been provided the audited
consolidated balance sheet of Grand Parent and its Subsidiaries and the
Borrower and its Subsidiaries, as at December 31, 1996, and the audited
consolidated statement of income and cash flow statement of Grand Parent
and its Subsidiaries and the Borrower and its Subsidiaries for the fiscal
year then ended, and such balance sheet and statement of income and cash
flow have been certified by Grand Parent's and the Borrower's respective
independent certified public accountants and accompanied by an unqualified
opinion of such accountants. Such balance sheet and statement of income and
cash flow have been prepared in accordance with GAAP and fairly present the
financial condition of Grand Parent and its Subsidiaries and the Borrower
and its Subsidiaries, respectively, as at the close of business as of such
date and the results of operations for the fiscal year then ended. There
are no Contingent Obligations of Grand Parent or its Subsidiaries or the
Borrower or its Subsidiaries as of such date involving material amounts,
known to the officers of Grand Parent or the Borrower, respectively, that
were not disclosed in such balance sheet and the notes related thereto.
(b) The Administrative Agent has been provided the unaudited
consolidated balance sheet of Grand Parent and its Subsidiaries and the
Borrower and its Subsidiaries as of September 30, 1997, and the unaudited
consolidated statement of income and cash flow statement of Grand Parent
and its Subsidiaries and the Borrower and its Subsidiaries for the nine
months then ended. Such balance sheet and statement of income and cash flow
have been prepared in accordance with GAAP and fairly present the financial
condition of Grand Parent and its Subsidiaries and the Borrower and its
Subsidiaries, respectively, as at the close of business on the date thereof
and the results of operations for the nine months then ended, subject to
normal year-end adjustments. There are no Contingent Obligations of Grand
Parent or its Subsidiaries or the Borrower or its Subsidiaries as of such
date involving material amounts known to the officers of Grand Parent or
the Borrower, respectively, that were not disclosed in such balance sheet
and the notes related thereto.
Section 5.5 No Material Adverse Effect, Etc. Since December 31, 1996,
-------------------------------
there has occurred no Material Adverse Effect (other than continuing losses of
the Borrower (x) as disclosed in the Borrower's unaudited consolidated balance
sheet and statement of cash flow delivered to the Administrative Agent pursuant
to (S) 5.4(b) and (y) materially in compliance with such losses as projected to
continue in the Full-Term Operating Business Plan).
Section 5.6 Franchises, Patents, Copyrights, Etc. Except for the FCC
------------------------------------
Licenses for the New York PCS Network and the other Intellectual Property set
forth on Schedule 5.6, there are no franchises, patents, copyrights, trademarks,
trade names, or other Intellectual Property, individually or in the aggregate,
that are material for the conduct of the Borrower's business as now conducted or
as presently contemplated to be conducted.
46
Section 5.7 License, Etc. The Borrower (or the License Subsidiary) has
------------
secured
(a) with respect to the construction, installation and development of
facilities for the New York PCS Network, the FCC Licenses for the New York
PCS Network and all material Necessary Authorizations appropriate to the
level of development theretofore achieved and sufficient to avoid
noncompliance with the minimum build-out requirements under the FCC
Licenses for the New York PCS Network, and
(b) with respect to the operation of those portions of the New York
PCS Network the development of which has theretofore been completed, the
License and all material Necessary Authorizations sufficient to operate
such completed portions.
Neither the FCC Licenses for the New York PCS Network nor any such material
Necessary Authorization is the subject of any pending or, to the best of any
Omnipoint Entity's knowledge, threatened appeal, revocation, revocation
proceeding or any other similar action or proceeding. The Borrower (or the
License Subsidiary, as the case may be) is in compliance with the FCC Licenses
for the New York PCS Network and all material Necessary Authorizations. The
Borrower (or the License Subsidiary, as the case may be) reasonably expects to
obtain, in the ordinary course of business, without the imposition of burdensome
conditions all Necessary Authorizations not currently obtained, that will be
required under the License in the future or that will be required to operate the
Borrower's or the License Subsidiary's business substantially in accordance with
the Full-Term Operating Business Plan.
Section 5.8 Litigation. There are no actions, suits, proceedings or
----------
investigations of any kind pending or, to the best of any Omnipoint Entity's
knowledge, threatened, against any Omnipoint Loan Party before any court,
tribunal or administrative agency or board (including the FCC) that, if
adversely determined, might, either in any case or in the aggregate, have a
Material Adverse Effect or materially impair the right of any Omnipoint Loan
Party to carry on business substantially as now conducted, or result in any
substantial and material liability not adequately covered by insurance, or for
which adequate reserves are not maintained on the balance sheet of such
Omnipoint Loan Party, or that questions the validity of this Agreement or any of
the other Loan Documents, or any action taken or to be taken pursuant hereto or
thereto.
Section 5.9 Compliance with Other Instruments, Laws, Etc. No Omnipoint
--------------------------------------------
Loan Party is in violation of any provision of its charter documents, bylaws, or
any agreement or instrument to which it may be subject or by which it or any of
its Properties may be bound or any decree, order, judgment, statute, license
(including, without limitation, any License), rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or have a Material Adverse Effect.
Section 5.10 Tax Status. Each Omnipoint Entity
----------
47
(a) has made or filed all Federal and state income and all other tax
returns, reports and declarations required by any jurisdiction to which it
is subject or filed extensions therefor;
(b) has paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and by appropriate proceedings
and for which such Omnipoint Entity has set aside on its books adequate
reserves; and
(c) has set aside on its books provisions reasonably adequate for the
payment of all taxes for all elapsed periods.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of each Omnipoint Entity know of
no basis for any such claim.
Section 5.11 No Default. No Default has occurred and is continuing.
----------
Section 5.12 Holding Company and Investment Company Acts. No Omnipoint
-------------------------------------------
Loan Party is a "holding company", or a "subsidiary company" of a "holding
company", or an affiliate" of a "holding company", as such terms are defined in
the Public Utility Holding Company Act of 1935; nor is it an "investment
company", or an "affiliated company" or a "principal underwriter" of an
"investment company", or an entity "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940.
Section 5.13 Absence of Financing Statements, Etc. Except with respect to
------------------------------------
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, Real Estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future Lien on, or security interest
in, any assets or Property of any Omnipoint Loan Party or any rights relating
thereto.
Section 5.14 FCC Matters. Each Omnipoint Loan Party has duly and timely
-----------
filed all filings which are required to be filed by it under the Communications
Act, the failure to file which could reasonably be expected to have a Material
Adverse Effect and is in all material respects in compliance with the
Communications Act, including the rules and regulations of the FCC applicable to
it, the failure to be in compliance with which could reasonably be expected to
have a Material Adverse Effect.
Section 5.15 Tariffs. No action to change, alter, rescind or otherwise
-------
terminate the tariffs containing service regulations or any rates and charges
for commercial mobile radio services which, if adversely determined, would have
a Material Adverse Effect, is pending or known by any Omnipoint Loan Party to be
under consideration.
48
Section 5.16 Disclosure. This Agreement and the statements and documents
----------
referred to herein or delivered to the Administrative Agent and/or the Lenders
by or on behalf of any Omnipoint Entity pursuant hereto taken together, contain
no untrue statement of a material fact or fail to state a material fact which
would be necessary to make the statements (taken as a whole) herein and therein
not misleading at such time.
Section 5.17 Burdensome Obligations. No Omnipoint Loan Party is a party to
----------------------
or bound by any franchise, agreement, deed, lease or other instrument, or
subject to any legal restriction which, in the opinion of the management of
Grand Parent or the Borrower, is so unusual or burdensome, in the context of its
business, as in the foreseeable future might materially and adversely affect or
impair the revenue or operating cash flow of such Omnipoint Loan Party, or the
ability of such Omnipoint Loan Party to perform obligations under the Loan
Documents. No Omnipoint Loan Party presently anticipates that future
expenditures by such Omnipoint Loan Party needed to meet the provisions of
Federal or state statutes, orders, rules or regulations will be so burdensome as
to affect or impair, in a materially adverse manner, the business or condition,
financial or otherwise, of such Omnipoint Loan Party.
Section 5.18 Solvency. Each Omnipoint Loan Party is, and after giving
--------
effect to the incurrence of all Indebtedness as and when contemplated by the
Loan Documents will be, Solvent.
Section 5.19 Security Interests. The security interests granted under the
------------------
Collateral Documents constitute valid, binding and continuing duly perfected
first-priority Liens in and to the Collateral (except for Permitted Liens that
have priority under applicable law) in favor of the Administrative Agent, for
the benefit of the Administrative Agent and the Lenders.
Section 5.20 Certain Transactions. Except as set forth in Schedule 5.20,
--------------------
none of the officers, directors, or employees of any Omnipoint Loan Party is
presently a party to any transaction with any other Omnipoint Loan Party (other
than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or, to the
knowledge of such Omnipoint Loan Party, any corporation, partnership, trust or
other entity in which any officer, director, or any such employee has a
substantial interest or is an officer, director, trustee or partner. The
Borrower has delivered a complete and correct copy of the Expense Allocation
Agreement to the Administrative Agent. No Omnipoint Loan Party is a party to any
management, operating, license or other agreement providing for the payment of
any amount to any of its Affiliates, except for the Expense Allocation Agreement
or as permitted under Section 7.10.
Section 5.21 Employee Benefit Plans.
----------------------
(a) Each Employee Benefit Plan and each Plan has been maintained and
operated in compliance in all material respects with the provisions of
ERISA and, to
49
the extent applicable, the IRC, including the provisions thereunder
respecting prohibited transactions. Grand Parent, Borrower and each ERISA
Affiliate has made all required contributions to each Employee Benefit Plan
and each Multiemployer Plan. To the extent applicable, Grand Parent,
Borrower and each ERISA Affiliate has heretofore delivered to the
Administrative Agent the most recently completed annual report, Form 5500,
with all required attachments, and actuarial statements required to be
submitted under (S) 103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
(b) Under each Employee Benefit Plan that is an employee welfare
benefit plan within the meaning of (S) 3(1) or (S) 3(2) (b) of ERISA, no
benefits are due unless the event giving rise to the benefit entitlement
occurs prior to plan termination (except as required by Title I, Subtitle
B, Part 6 of ERISA). Grand Parent or an ERISA Affiliate, as appropriate,
may terminate each such Plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the discretion of any
of Grand Parent or such ERISA Affiliate without liability to any Person.
(c) Each contribution required to be made to a Guaranteed Pension
Plan, whether required to be made to avoid the incurrence of an accumulated
funding deficiency, the notice or lien provisions of (S) 302 (f) of ERISA,
or otherwise, has been timely made. No waiver of minimum funding standards
or extension of amortization periods has been requested or received with
respect to any Guaranteed Pension Plan. No liability to the PBGC (other
than required insurance premiums, all of which have been paid) has been
incurred by Grand Parent or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Event, or any
other event or condition that presents a material risk of termination of
any Guaranteed Pension Plan by the PBGC. Neither Grand Parent nor any
ERISA Affiliate has instituted or intends to institute proceedings to
terminate a Guaranteed Pension Plan. No event requiring notice to the PBGC
under (S) 302(f)(4)(A) of ERISA has occurred with respect to any Guaranteed
Pension Plan and no amendment with respect to which security is required
under (S) 307 of ERISA has been made or is reasonably expected to be made
to any Guaranteed Pension Plan. Based on the latest valuation of each
Guaranteed Pension Plan (which in each case occurred within 12 months prior
to the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of (S) 4001 of
ERISA did not exceed the aggregate value of the assets of all such
Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in excess
of benefit liabilities.
(d) Neither Grand Parent, the Borrower nor any ERISA Affiliate has
incurred or expects to incur any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under (S) 4201 of ERISA or as a
result of a sale of assets described in (S) 4204 of ERISA. Neither Grand
Parent, the Borrower nor any ERISA
50
Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of (S) 4241 or (S)
4245 of ERISA or that any Multiemployer Plan intends to terminate or has
been terminated under (S) 4041A of ERISA.
Section 5.22 Regulations G, T, U and X. No portion of any Loan shall be
-------------------------
used or obtained for the purpose of purchasing or carrying any "margin security"
or "margin stock" as such terms are used in Regulations G, T, U and X of the
Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224.
Section 5.23 Environmental Compliance. Each Omnipoint Entity has taken all
------------------------
steps as are reasonable for companies in similar lines of business and size with
respect to similarly situated and like Real Estate to investigate the past and
present condition and usage of its and its Subsidiaries' Real Estate and the
operations conducted thereon and, based upon such diligent investigation, makes
the following representations:
(a) Except as set forth in the Current Phase I Audit and the Action
Letter, each Omnipoint Entity is, to the best of its knowledge, in
compliance with all applicable Environmental Laws relating to the operation
of its business and the use and occupancy of any Real Estate. There is no
pending or, to the best of its knowledge, threatened civil or criminal
litigation, written notice of violation, administrative proceeding, or
investigation, inquiry or information request by any person, entity or
governmental authority relating to any applicable Environmental Law
(collectively "Environmental Claims") involving such Omnipoint Entity or
--------------------
any person or entity for whom an Omnipoint Entity may be responsible by law
or contract.
(b) Except as set forth in Schedule 5.23, there are no past or
present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge,
presence or disposal of any Material of Environmental Concern, that could
form the basis of any Environmental Claim against the Company or, to the
Company's best knowledge after due inquiry, against any person or entity
whose liability for any Environmental Claim the Company has retained or
assumed either contractually or by operation of law.
(c) Set forth in Schedule 5.23 is a list of all environmental reports,
investigations and audits relating to premises currently or previously
owned or operated by any Omnipoint Loan Party (whether conducted by or on
behalf of any Omnipoint Loan Party or a third party, and whether done at
the initiative of any Omnipoint Loan Party or directed by a governmental
entity or other third party) which such Omnipoint Loan Party has in its
possession or to which it has access, and complete and accurate copies of
each such report, or the results of each such investigation or audit, have
been provided to the Administrative Agent.
(d) Each Omnipoint Entity has filed all reports and returns required
to be filed by such Omnipoint Entity under any applicable Environmental
Laws. Each
51
Omnipoint Entity has obtained and is in compliance with all licenses,
permits, registrations, certificates, consents, approvals or authorizations
(collectively, "Environmental Permits") required by all applicable
---------------------
Environmental Laws. No event has occurred and is continuing that requires,
or after notice or lapse of time or both would require, any modification or
termination of any Environmental Permit. No Omnipoint Entity (i) has
received any notice asserting the absence of any Environmental Permit or
(ii) has knowledge of any environmental law proposed or under
consideration, which, if effective, could have a Material Adverse Effect.
(e) Except as set forth in the Current Phase I Audit and the Action
Letter, no Omnipoint Entity nor any of the Real Estate is subject to any
applicable Environmental Laws requiring the performance of site assessments
for Materials of Environmental Concern, or the removal or remediation of
Materials of Environmental Concern, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby, or as a condition to
the effectiveness of any transactions contemplated hereby.
Section 5.24 Material Contracts. As of the date of this Agreement, no
------------------
Omnipoint Loan Party is a party to any Material Contract or any agreement with
any director, officer or employee of any Omnipoint Loan Party, and no
shareholder of any Omnipoint Loan Party is a party to any shareholder, share-
voting or similar agreement relating to any Omnipoint Loan Party, except as set
forth in Schedule 5.24.
Section 5.25 Payment of Existing Debt. After giving effect to the use of
------------------------
the proceeds of the Loans borrowed on the Closing Date, all obligations in
respect of the Existing Bank Debt shall have been repaid in full and all
documents and agreements in connection therewith shall have been irrevocably
terminated, other than customary indemnification provisions which by the terms
thereof survive repayment.
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
Each of Grand Parent and the Borrower covenants and agrees that, so long as
any Loan or Note is outstanding or any of the Obligations remain unsatisfied or
any Lender has any Commitment to make any Loans:
Section 6.1 Maintenance of Office. Each Omnipoint Loan Party's chief
---------------------
executive office shall be located at its address for notices specified in
Section 12.2, except that any Omnipoint Loan Party may change its chief
executive office on not less than 30-days' advance written notice to the
Administrative Agent and after taking all such action as may be necessary or
appropriate or requested by the Administrative Agent to continue the perfection
and priority of the Administrative Agent's security interest in the Collateral.
52
Section 6.2 Records and Accounts. Grand Parent and the Borrower shall,
--------------------
and shall cause the other Omnipoint Loan Party to:
(a) keep true and accurate records and books of account in which full,
true and correct entries shall be made in accordance with GAAP, and
(b) maintain adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and amortization of
its Properties, contingencies and other reserves.
Section 6.3 Corporate Existence; Maintenance of Licenses. Grand Parent
--------------------------------------------
and the Borrower shall do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and shall cause the
other Omnipoint Loan Parties to do or cause to be done all things necessary to
preserve and keep in full force and effect their existence. Grand Parent and/or
the Borrower shall maintain or cause to be maintained in full force and effect,
(a) with respect to the construction, installation and development of
facilities for the New York PCS Network, the FCC Licenses for the New York
PCS Network and all material Necessary Authorizations appropriate to the
level of development theretofore achieved and sufficient to avoid
noncompliance with the then applicable minimum build-out requirements under
the FCC Licenses for the New York PCS Network, and
(b) with respect to the operation of those portions of the New York
PCS Network the development of which has theretofore been completed, all
material Licenses, copyrights, patents, franchises, Necessary
Authorizations and other rights as are necessary and sufficient to operate
such completed portions.
Grand Parent and the Borrower will, and will cause the other Omnipoint Entities
to, at all times perform and observe all covenants and conditions on its part to
be performed and observed under FCC rules and regulations or with respect to the
FCC License for the New York PCS Network and not cause or permit to exist any
grounds for the FCC to revoke or suspend or not to renew such License.
Section 6.4 Maintenance of Properties. Grand Parent and the Borrower
-------------------------
shall, and shall cause the other Omnipoint Loan Parties to, do or cause to be
done all things necessary to preserve and keep in full force and effect its
franchises, employment contracts and permits. Each of Grand Parent and the
Borrower shall, and shall cause the other Omnipoint Loan Parties to
(a) cause all of its Properties used or useful in the conduct of its
business to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment;
53
(b) cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of Grand
Parent or the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times;
(c) continue to engage primarily in the businesses now conducted by it
and in related businesses; and
(d) continue in full force and effect all authorizations and approvals
required to conduct its business as appropriate to the then level of
construction, development and operation of the New York PCS Network;
provided that, each Omnipoint Loan Party shall not be required to do any of the
foregoing set forth in clauses (a) or (b) if any such requirement is no longer
desirable or necessary in the conduct of such Omnipoint Loan Party's business
and no Material Adverse Effect could reasonably be expected to occur as a result
thereof.
Section 6.5 Insurance. Grand Parent and the Borrower shall, and shall
---------
cause each other Omnipoint Loan Party, to the extent such Omnipoint Loan Party
owns applicable Properties, to, obtain and maintain insurance with respect to
its Properties and business with insurers that hold an A.M. Best rating of "A"
or better. The insurance coverage shall
(a) be at least in such amounts and against at least such risks as are
customarily insured against by companies engaged in the same or a similar
business, which insurance shall in any event not provide for materially
less coverage than the insurance in effect on the Closing Date;
(b) with respect to all liability insurance (other than with respect
to the Property of Grand Parent), name the Administrative Agent as an
additional insured;
(c) with respect to casualty insurance (other than with respect to
Grand Parent), name the Administrative Agent as loss payee as its interest
may appear; and
(d) provide that the insurer will give the Administrative Agent at
least 30-days' prior written notice of the cancellation or any material
change in the coverage, aggregate limits or any other provision of such
insurance.
The Borrower shall deliver to the Administrative Agent, no later than March 31
in each calendar year and otherwise promptly on request by the Administrative
Agent, certificate(s) of insurance confirming compliance with the requirements
of this Section 6.5.
Section 6.6 Taxes. Grand Parent and the Borrower shall, and shall cause
-----
each other Omnipoint Entity to, duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it (including all amounts due and owing
to the FCC under the FCC Licenses for the New York PCS Network) and its Real
Estate, sales and activities, or any
54
part thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies that if unpaid might by law become a Lien or
charge upon any of its Property; provided that any such tax, assessment, charge,
--------
levy or claim need not be paid if the validity or amount thereof shall currently
be contested in good faith by appropriate proceedings and if the relevant
Omnipoint Entity has set aside on its books adequate reserves with respect
thereto; and provided further that each Omnipoint Entity will pay all such
-------- -------
taxes, assessments, charges, levies or claims forthwith upon the commencement of
proceedings to foreclose any Lien that may have attached as security therefor.
Section 6.7 Inspection of Properties and Books.
----------------------------------
(a) Grand Parent and the Borrower shall, and shall cause each other
Omnipoint Loan Party to, permit the Administrative Agent, the Lenders and
their other designated representatives to visit and inspect any of the
Properties of the Omnipoint Loan Parties, to examine the books of account
of the Omnipoint Loan Parties (and to make copies thereof and extracts
therefrom), and to discuss the affairs, finances and accounts of the
Omnipoint Loan Parties with, and to be advised as to the same by, its
officers, all at such reasonable times and intervals as the Administrative
Agent or any Lender may reasonably request.
(b) Grand Parent and the Borrower authorize the Administrative Agent
and each Lender to communicate directly with Grand Parent's and the
Borrower's independent certified public accountants and authorizes such
accountants to disclose to the Administrative Agent and the Lenders any and
all financial statements and other supporting financial documents and
schedules including copies of any management letter with respect to the
business, financial condition and other affairs of Grand Parent and the
Borrower. At the reasonable request of the Administrative Agent, Grand
Parent or the Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this Section 6.7(b).
Section 6.8 Compliance with Laws, Contracts, License, and Permits. Each
-----------------------------------------------------
of Grand Parent and the Borrower shall, and shall cause each other Omnipoint
Loan Party to, comply in all material respects with
(a) the applicable laws and regulations wherever its business is
conducted, including all Environmental Laws, all Environmental Permits,
ERISA, the IRC, the Communications Act, and all FCC rules and regulations;
(b) the provisions of its charter documents and by-laws;
(c) all Material Contracts to which it is a party and by which it or
any of its Properties may be bound;
(d) all obligations with respect to any Employee Benefit Plan or
Multiemployer Plan; and
55
(e) all applicable decrees, orders and judgments.
If any authorization, consent, approval, permit or license from any officer,
agency or instrumentality of any government shall become necessary or required
in order that any Omnipoint Loan Party may fulfill any of the Obligations
hereunder or under any of the other Loan Documents to which such Omnipoint Loan
Party is a party, Grand Parent and the Borrower shall, and cause each other
Omnipoint Loan Party to, immediately take or cause to be taken all reasonable
steps within the power of Grand Parent, the Borrower or such other Omnipoint
Loan Party to obtain such authorization, consent, approval, permit or license
and furnish the Administrative Agent evidence thereof.
Section 6.9 Further Assurances. Grand Parent and the Borrower shall, and
------------------
shall cause each other Omnipoint Loan Party to, cooperate with the Lenders and
the Administrative Agent and shall execute and pay for the filing of all such
further instruments and documents, including UCC financing statements and other
security documents, as the Required Secured Creditors or the Administrative
Agent shall reasonably deem appropriate in order to effectuate the grant of the
Liens and security interests to the Administrative Agent contemplated by the
Loan Documents and to carry out to their satisfaction the transactions
contemplated by the Loan Documents.
Section 6.10 Authorization from Landlord/Mortgagee, Etc. The Borrower
------------------------------------------
shall request that any landlord, mortgagee and easement grantor of the Borrower
agree to give the Administrative Agent, on a best-efforts basis, notice of any
default by the Borrower under the terms or conditions of any agreement between
the Borrower and any landlord, mortgagee of any such landlord or easement
grantor, and allow the Administrative Agent to inspect or remove any Property of
the Borrower after the occurrence and continuance of an Event of Default.
Section 6.11 Attornment and Recognition Agreements. The Borrower shall
-------------------------------------
obtain all attornment and recognition agreements from any landlord or landlord's
mortgagee of Real Estate leased or owned by the Borrower upon which any
Collateral (with a fair value in excess of [*] is stored or located, in form and
substance reasonably satisfactory to Administrative Agent. The Borrower shall
use its best efforts to obtain all attornment and recognition agreements from
any landlord or landlord's mortgagee of Real Estate leased or owned by the
Borrower upon which all other Collateral not covered by the immediately
preceding sentence is stored or located, in form and substance reasonably
satisfactory to Required Secured Creditors.
Section 6.12 Expense Allocation Agreement. The Borrower shall comply with
----------------------------
the terms of the Expense Allocation Agreement and not consent to any waiver,
modification or amendment thereto.
Section 6.13 Reporting Requirements; Notices. Grand Parent or the
-------------------------------
Borrower, as appropriate, shall deliver or cause to be delivered to the
Administrative Agent on behalf of the Lenders the following (in a sufficient
number of copies to permit distribution to each Lender):
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
56
(a) No later than 10 days after the end of each fiscal year of the Bor
rower an Annual Operating Business Plan containing the information listed
in items (i) through (vi) in this paragraph and the exhibits contained in
the Annual Operating Business Plan delivered pursuant to Section 8.11(a)
for the next-succeeding fiscal year. The Annual Operating Business Plan
shall contain
(i) internally prepared statements of income and expense of the
Borrower in reasonable detail for the applicable period prepared in all
material aspects in accordance with GAAP (except for the absence of
footnotes),
(ii) a schedule of all Capital Expenditures estimated to be made
during the period,
(iii) a statement of the amounts and times by which the Borrower
needs to raise additional capital to meet its obligations when due during
the period,
(iv) a projected balance sheet of the Borrower,
(v) a projected cash flow statement of the Borrower, and
(vi) a statement listing all material assumptions which formed
the basis for all information provided pursuant to clauses (i) through (v),
each together with supporting schedules in sufficient detail as needed and
in all material aspects in accordance with the Annual Operating Business
Plan delivered pursuant to Section 8.11(a) and on a consistent basis.
(b) No later than August 14 of each fiscal year of the Borrower, a
report, certified as true and correct by the chief or principal financial
or accounting officer of the Borrower, that shows in reasonable detail,
variances, if any, between the actual operating performance of the Borrower
and what was estimated for the first six months of such fiscal year in the
Annual Operating Business Plan for such fiscal year and explains in
reasonable detail in form satisfactory to the Required Secured Creditors
the reasons for the discrepancies between them, if any.
(c) (i) As soon as practicable, but in any event not later than 45
days after the end of each of the first three fiscal quarters of each
fiscal year of the Borrower, copies of the internally prepared unaudited
consolidated balance sheet of the Borrower, as at the end of such quarter,
and the related consolidated statement of income and statement of cash flow
for the portion of the Borrower's fiscal year then elapsed, all in
reasonable detail and each setting forth in comparative form
(A) the figures for the prior year's corresponding fiscal quarter
and
(B) any variances from the Annual Operating Business Plan,
57
prepared in all material respects in accordance with GAAP, together with a
certification by the principal financial or accounting officer of the
Borrower that the information contained in such financial statements fairly
presents the financial position of the Borrower on the date thereof
(subject to normal year-end adjustments).
(ii) As soon as practicable, but in any event not later than 45
days after the end of each of the first three fiscal quarters of each
fiscal year of Grand Parent, copies of the internally prepared unaudited
consolidated balance sheet of Grand Parent, as at the end of such quarter,
and the related consolidated statement of income and statement of cash flow
for the portion of Grand Parent's fiscal year then elapsed, all in
reasonable detail, prepared in all material respects in accordance with
GAAP, together with a certification by the principal financial or
accounting officer of Grand Parent that the information contained in such
financial statements fairly presents the financial position of Grand Parent
on the date thereof (subject to normal year-end adjustments).
(d) (i) As soon as practicable, but in any event no later than 90
days after the end of each fiscal year (commencing with the fiscal year
ended December 31, 1997) of the Borrower, the audited consolidated balance
sheet of the Borrower as at the end of such year, and the related audited
consolidated statement of income and audited consolidated statement of cash
flow for such year prepared in accordance with GAAP, and a separate
variance analysis setting forth in comparative form the figures for the
previous fiscal year and any variances from the applicable period of the
Annual Operating Business Plan in reasonable detail. Such balance sheet,
statement of income and statement of cash flow shall contain a certified
audit report of a nationally recognized independent certified public
accounting firm satisfactory to the Administrative Agent and the Lenders,
which report shall contain an unqualified opinion of such accounting firm.
The annual financial statements shall also be accompanied by a management
letter of the Borrower's accountants (only to the extent otherwise obtained
by the Borrower).
(ii) As soon as practicable, but in any event no later than 90
days after the end of each fiscal year (commencing with the fiscal year
ended December 31, 1997) of Grand Parent, the audited consolidated balance
sheet of Grand Parent as at the end of such year, and the related audited
consolidated statement of income and audited consolidated statement of cash
flow for such year prepared in accordance with GAAP. Such balance sheet
shall contain a certified audit report of a nationally recognized
independent certified public accounting firm satisfactory to the
Administrative Agent and the Lenders, which report shall contain an
unqualified opinion of such accounting firm. The annual financial
statements shall also be accompanied by a management letter of Grand
Parent's accountants (only to the extent otherwise obtained by Grand
Parent).
(e) Simultaneously with the delivery of the financial statements
referred to in subsections (c) and (d) above, a statement certified by the
principal financial or accounting officer of Grand Parent or the Borrower,
as the case may be, substantially
58
in the form of Exhibit D setting forth in reasonable detail computations
evidencing compliance with the covenants contained in Section 7.19, in each
case with respect to the fiscal quarter relating to the financial
statements then being delivered.
(f) Within 45 days after the end of each fiscal quarter of the
Borrower, a report on
(i) the number of cell sites constructed,
(ii) the total number of Subscribers,
(iii) the average net revenue per subscriber,
(iv) payments to Parent, Grand Parent and other Affiliates of
Grand Parent, whether under the Expense Allocation Agreement or other wise
and
(v) equity contributions to and Indebtedness incurred by the
Borrower or any of its Subsidiaries, and the Persons providing the same,
during such fiscal quarter, together with a report showing variances from
the estimates previously provided to the Administrative Agent and each
Lender in the Annual Operating Business Plan, along with an explanation of
discrepancies between the actual numbers and the estimated numbers.
(g) Within three Business Days after the filing or mailing thereof,
copies of all
(i) material filed with the Securities and Exchange Commission by
any Omnipoint Loan Party;
(ii) information sent to the stockholders of any Omnipoint Loan
Party or lenders to any Omnipoint Loan Party (exclusive of proprietary
information); or
(iii) information and reports directly and materially related to
the Borrower or the New York PCS Network that Parent or Grand Parent would
be required to file with the Securities and Exchange Commission pursuant to
the Exchange Act, if Parent or Grand Parent were public companies subject
to the reporting requirements of such Act; provided that, if the
--------
information or reports covered by this clause (iii) contain proprietary
information, the Borrower shall not be obligated to provide the proprietary
information hereunder unless the Person that is the source of the
information or reports is required to file periodic reports with the
Securities and Exchange Commission
59
pursuant to the Exchange Act and such Person would be required to report
such information as part of such filings.
(h) Within three Business Days after any director or officer of any
Omnipoint Loan Party shall have knowledge of the occurrence and continuance
thereof, written notice of the occurrence and continuance of a Default,
together with a statement of what action Grand Parent, the Borrower or such
Omnipoint Loan Party is taking or proposes to take with respect thereto.
If any Person shall give any notice or take any other action in respect of
a claimed default (whether or not constituting a Default) under this
Agreement or any other note, evidence of indebtedness, indenture or other
obligation to which or with respect to which any Omnipoint Loan Party is a
party or obligor, whether as principal, guarantor, surety or otherwise,
which could result in the party to whom such indebtedness is owed having
the right under the documents governing such indebtedness to accelerate
such indebtedness, and such acceleration would have a Material Adverse
Effect, Grand Parent or the Borrower shall, or shall cause such other
Omnipoint Loan Party to, forthwith give written notice thereof to the
Administrative Agent, describing the notice or action and the nature of the
claimed default.
(i) As soon as possible, and in any event within 10 Business Days
(i) after making any such report, written notice of any violation
of any Environmental Law that any Omnipoint Loan Party reports in
writing or is reportable by any Omnipoint Loan Party in writing (or
for which any written report supplemental to any oral report is made)
to any Federal, state or local environmental agency and
(ii) after any Omnipoint Loan Party shall become aware thereof,
written notice of any inquiry, proceeding, investigation, or other
action, including a notice from any agency of potential environmental
liability, or any Federal, state or local environmental agency or
board, that, has the potential to (x) materially affect the assets,
liabilities, financial condition or operations of any Omnipoint Loan
Party or the Liens and security interests for the benefit of the
Lenders granted pursuant to the Collateral Documents or (y) result in
a Material Adverse Effect.
(j) As soon as possible, and in any event within 10 days after the
Grand Parent, Borrower or any ERISA Affiliate knows or has reason to know
or believes that any ERISA Affiliate knows or has reason to know or
believes that any ERISA Event has occurred, a statement of the chief
financial officer of Grand Parent or such ERISA Affiliate describing such
ERISA Event, together with any correspondence with, or filings made with,
the PBGC or Department of Labor, and the action, if any, which Grand
Parent, Borrower or such ERISA Affiliate proposes to take with respect
thereto.
(k) Promptly after
60
(i) filing the same with the Department of Labor or Internal
Revenue Service, (A) a copy of its initial actuarial statement
required to be submitted under (S) 103(d) of ERISA and Annual Report,
Form 5500, with all required attachments, in respect of each
Guaranteed Pension Plan, and (B) a notice of all subsequent filings
(with copies to be provided upon request of the Administrative Agent),
(ii) receipt or dispatch thereof, a copy of any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under
(S)(S) 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or
in respect of a Multiemployer Plan, under (S)(S) 4041A, 4202, 4219,
4242, or 4245 of ERISA, and
(iii) becoming aware of the occurrence thereof, notice of (A) any
transaction that could result in the imposition of a penalty under (S)
502(i) of ERISA or an excise tax under (S) 4975 against Borrower,
Grand Parent or an ERISA Affiliate; (B) any partial or complete
withdrawal from a Multiemployer Plan by any of Borrower, Grand Parent
or an ERISA Affiliate; (C) a failure by any of Borrower, Grand Parent
or an ERISA Affiliate to make a payment to a Plan required to avoid
imposition of a lien under (S) 302 (f) of ERISA; (D) the adoption of
an amendment to a Guaranteed Pension Plan requiring the provision of
security under (S) 307 of ERISA; or (E) any change in the actuarial
assumptions or funding methods used for any Guaranteed Pension Plan,
where the effect of such change is to materially increase the unfunded
benefit liability or materially reduce the obligation to make periodic
contributions.
(l) Within three Business Days after becoming aware of any setoff,
claims (including, with respect to the Real Estate, environmental claims),
withholdings or other defenses to which any of the Collateral, or the
Administrative Agent's or the Lenders' rights with respect to the
Collateral, are subject, written notice thereof.
(m) Within 10 days after becoming aware of
(i) any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting Grand Parent or any
Significant Subsidiary or to which Grand Parent or any Significant
Subsidiary is or becomes a party that could reasonably be expected to
have a Material Adverse Effect, written notice thereof (which notice
shall include a statement as to the nature and status of the
proceedings), or
(ii) any judgment not covered by insurance, final or otherwise,
against Grand Parent or any Significant Subsidiary in an amount in
excess of $1,000,000, written notice thereof.
61
(n) Within 100 days after the end of each fiscal year of Grand Parent,
beginning with its fiscal year ended [*] a report that includes
calculations showing in reasonable detail Grand Parent's Excess Cash Flow
for such fiscal year, if any, certified as correct by Grand Parent's chief
or principal accounting or financial officer.
(o) Within three Business Days after its receipt or dispatch thereof,
copies of all material notices and correspondence received from or sent to
the FCC relating to the New York PCS Network License.
(p) Not later than 30 days prior to the occurrence thereof, written
notice to the Administrative Agent of a change in (i) the business of any
Omnipoint Entity, (ii) the location of the Collateral (subject to the
provisions of the relevant Collateral Document), or (iii) the location
where any Omnipoint Loan Party's books and records are kept.
(q) From time to time upon the reasonable request of the
Administrative Agent at the direction of the Required Lenders (but in no
event more frequently than once per year), an update of the Full-Term
Operating Plan, including projections of the Borrower's performance through
the Maturity Date, in reasonable detail and covering matters substantially
similar to those covered in the Full-Term Operating Plan delivered on the
Closing Date.
(r) Such other information concerning its or any other Omnipoint Loan
Party's business, operations or financial condition as shall be reasonably
requested by any Lender.
Upon the Administrative Agent's receipt of any and all financial and other
information furnished by Grand Parent or the Borrower pursuant to this Section
6.13 the Administrative Agent shall promptly deliver copies thereof to each
Lender.
Section 6.14 Certified Copies of Insurance Policies. Within 30 days after
--------------------------------------
the Closing Date, the Borrower shall, to the extent not otherwise delivered on
the Closing Date pursuant to Section 8.16, deliver to the Administrative Agent
copies of all insurance policies that shall have been required to have been
delivered to the Administrative Agent by the Closing Date pursuant to Section
8.5, certified by the applicable insurer(s).
Section 6.15 Access Agreements. Grand Parent and the Borrower shall comply
-----------------
with the provisions of the Access Agreements and shall ensure that the Access
Agreements remain in full force and effect during the term of this Agreement.
Section 6.16 Creation of License Subsidiary. The Borrower agrees that it
------------------------------
shall (i) within 30 Business Days after the Closing Date, both organize a
wholly-owned Subsidiary and file all appropriate applications and other
regulatory filings necessary in order to transfer all of the FCC Licences held
by the Borrower to the License Subsidiary, which License Subsidiary shall hold
no other properties and assets other than such FCC Licenses
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62
for the New York PCS Network and engage in no other business other than holding
such License and sublicensing such License to the Borrower pursuant to the
Operating Agree ment, and (ii) use reasonable best efforts to effectuate such
transfer, by taking all reasonable actions as may be necessary, including all
actions with respect to the FCC, as promptly as practical after the Closing
Date. Upon creation of such License Subsidiary, the License Subsidiary shall
guaranty the Obligations of the Borrower pursuant to the Subsidiary Guaranty,
the License Subsidiary shall enter into a security agreement substantially in
the form of the Borrower Security Agreement (except for provisions thereof
relating to lockbox accounts) granting (to the extent permitted by law) a first
priority perfected security interest in the FCC License for the New York PCS
Network, and the Borrower shall ▇▇▇▇▇ ▇ ▇▇▇▇ on, and pledge of, all of the
Capital Stock (or membership interests) of the License Subsidiary owned by the
Borrower (representing 100% of the issued and outstanding Capital Stock or
membership interests of the License Subsidiary) to the Administrative Agent as
security for the Obligations of the Borrower pursuant to the Borrower Pledge
Agreement, and the Borrower shall, and shall cause such License Subsidiary to,
provide authorizing resolutions, certified organizational documents and opinions
of counsel in connection with the foregoing, in each case in form and substance
reasonably satisfactory to the Administrative Agent. In addition, the Borrower
shall make such elections as shall be required to cause the Capital Stock of the
License Subsidiary to be considered a "general intangible" for purposes of the
Uniform Commercial Code.
Section 6.17 Proceeds of Loans. The Borrower shall maintain the proceeds
-----------------
from the Loans either (i) at OIT or (ii) in the account created under the
Borrower Securities Account Control Agreement, and in either case shall cause
the Administrative Agent to have a first priority perfected security interest in
such proceeds, until such time as such proceeds are used for the purposes
specified in Section 2.9.
ARTICLE VII
NEGATIVE COVENANTS
------------------
Each of Grand Parent and the Borrower covenants and agrees that, so long as
any Loan or Note is outstanding or any of the Obligations remain unsatisfied or
any Lender has any Commitment to make any Loans:
Section 7.1 Restrictions on Indebtedness. Grand Parent and the Borrower
----------------------------
shall not, and shall not permit any other Omnipoint Entity to, create, incur,
assume, suffer to exist or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, other than:
(i) Indebtedness hereunder and under the other Loan Documents;
(ii) Indebtedness outstanding on the Closing Date and, with respect to the
Omnipoint Loan Parties, set forth on Schedule 7.1 hereto (on a pro forma basis,
after
63
giving effect to the refinancing, retirement and payment of amounts outstanding
under the Existing Loan Agreement);
(iii) Indebtedness permitted under Section 7.3;
(iv) Additional Loans hereunder as permitted pursuant to Section 2.1(b);
(v) Indebtedness of Grand Parent that is (i) unsecured or secured solely
by the assets of any one or more Non-Party Subsidiaries, (ii) not guaranteed or
supported by the Borrower or any Guarantor (other than limited recourse
guaranties by OHI secured by Liens permitted pursuant to Section 7.2(x)), (iii)
on terms and conditions at least as favorable as then prevailing "market terms"
and (iv) the proceeds of which are used in Grand Parent's and its Subsidiaries'
telecommunications business.
(vi) Provided that the Administrative Agent has received a certificate of
the chief or principal accounting or financial officer of the Borrower to the
effect that no Default is in existence or would result therefrom, Indebtedness
of the Borrower (including vendor financing) secured on a pari passu basis with
the Loans and Senior Secured Notes (pursuant to an intercreditor arrangement to
be negotiated in good faith and without unreasonable delay with the Secured
Creditors, providing sharing of the proceeds of collateral on a pro rata basis
similar to the Intercreditor Agreement, which arrangement shall be satisfactory
to the Administrative Agent and the Required Secured Creditors);
(vii) So long as no Default is in existence or would result therefrom, (A)
Indebtedness secured in accordance with Section 7.2(vi), (vii) and (viii), as
applicable, incurred in the acquisition of Real Estate capital lease obligations
and (B) other purchase money financing, in an aggregate amount (including any
refinancing thereof pursuant to clause (x) below) not to exceed [*];
(viii) Intercompany Indebtedness of the Guarantors on the terms and
conditions set forth herein;
(ix) Indebtedness of any Non-Party Subsidiary, so long as such Indebtedness
is not secured by any of the Collateral, and neither the Borrower nor any
Guarantor has any Contingent Obligations with respect to such Indebtedness;
(x) Indebtedness providing for the refinance, refunding, renewal or
replacement of Indebtedness incurred pursuant to clauses (v), (vi) and (vii)
above (so long as such Indebtedness could have been incurred under such clauses
(v), (vi) and (vii); provided that (i) any such Indebtedness does not exceed the
amount so refinanced, refunded, renewed or replaced plus the amount of any
premium, accrued interest, fees and other related expenses incurred in
connection with the consummation of any such Indebtedness, (ii) the maturity
date of such Indebtedness is no earlier than the maturity date of such original
Indebtedness; (iii) no collateral is used to secure such Indebtedness other than
the collateral pledged in connection with such original Indebtedness; and (iv)
if such refinancing, refunding, renewal or replacement applies to the Borrower's
FCC Indebtedness and is incurred by a lender
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64
other than the FCC, such refinancing, refunding, renewal or replacement and any
Liens in connection therewith shall not be senior in any respect to the position
of the Secured Creditors.
(xi) Indebtedness under the Note Purchase Agreement; and
(xii) Indebtedness in respect of performance, surety or appeal bonds
provided in the ordinary course of business.
For purposes of determining compliance with this Section 7.1, in the event
that an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described in the above clauses, the Borrower, in its sole
discretion, shall classify such item of Indebtedness and only be required to
include the amount and type of such Indebtedness in one of such clauses.
Section 7.2 Liens. Grand Parent and the Borrower shall not, and shall
------
not permit any other Omnipoint Entity to, create, incur, assume or suffer to
exist, directly or indirectly, any Lien on any of its property now owned or
hereafter acquired, other than the following (each a "Permitted Lien"):
(i) Liens existing on the Closing Date and, with respect to the Omnipoint
Loan Parties, set forth on Schedule 7.2 hereto;
(ii) Liens for taxes not yet due or which are being contested in good faith
by appropriate proceedings diligently conducted and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(iii) Statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by Law (other than any Lien
imposed by ERISA or pursuant to any Environmental Law) created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings diligently conducted and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(iv) Easements, rights-of-way, zoning and similar restrictions and other
similar charges or encumbrances not interfering with the ordinary conduct of the
business of the Omnipoint Entity subject thereto and which do not detract
materially from the value of the property to which they attach or impair
materially the use thereof by the Omnipoint Entity subject thereto or materially
adversely affect the security interests of the Administrative Agent or the
Lenders therein;
(v) Liens granted to the Administrative Agent for the benefit of the
Lenders pursuant to the Loan Documents securing the Obligations and Liens
securing Indebtedness permitted under Section 7.1(iv) and (vi);
65
(vi) Purchase money security interests (securing Indebtedness permitted
under Section 7.1(vii)) on any property acquired or held by any Omnipoint Loan
Party in the ordinary course of business, securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring
such property; provided that (i) any such Lien attaches to such property
concurrently with or within [*] after the acquisition thereof or such longer
period as may be permitted under the applicable Uniform Commercial Code for
purchase money security interest treatment, (ii) such Lien attaches solely to
the property so acquired in such transaction and (iii) the principal amount of
the debt secured thereby does not exceed the purchase price of the asset so
financed;
(vii) Liens created pursuant to Capitalized Leases permitted under
Section 7.1(vii), provided that such Liens are only in respect of the property
--------
or assets subject to, and secure only, the respective Capitalized Lease;
(viii) Mortgage (or deed of trust) Liens to secure the payment of
Indebtedness permitted to be incurred under Section 7.1(vii), provided that the
amount secured by any such Lien shall not exceed the sum of the acquisition cost
of the Real Estate acquired and the cost of any improvements constructed
thereon;
(ix) Liens on the Capital Stock of OTI and ODCI, and the Intellectual
Property of Grand Parent used by OTI and not required for the operation of the
business of any of the other Subsidiaries of Grand Parent, so long as Grand
Parent has executed and complied with the Access Agreements;
(x) Liens on the notes made payable by Non-Party Subsidiaries evidencing
the Intercompany Indebtedness owed to OHI;
(xi) Liens on the assets of Non-Party Subsidiaries;
(xii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security;
(xiii) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory or regulatory obligations, bankers'
acceptances, surety and appeal bonds, government contracts, performance and
return of money bonds and other obligations of a similar nature incurred in the
ordinary course of business (exclusive of obligations for the payment of
borrowed money);
(xiv) Liens (including extensions and renewals thereof) upon real or
personal property; provided that such Liens are created solely for the purpose
of securing Indebtedness incurred in accordance with Section 7.1(x) to
refinance refund, renew or replace any such Indebtedness previously so secured;
and provided further that such Liens do not attach to assets other than those
assets to which they attached prior to such refinancing;
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66
(xv) Liens arising from filing Uniform Commercial Code financing statements
in connection with leases permitted hereunder;
(xvi) Liens arising from the rendering of a final judgment or order against
any Omnipoint Entity that do not give rise to an Event of Default; and
(xvii) Liens in connection with the Note Purchase Agreement.
Section 7.3 Contingent Obligations. Grand Parent and the Borrower shall
----------------------
not, and shall not permit any other Omnipoint Entity to, create, incur, assume,
suffer to exist or become or be liable with respect to any Contingent
Obligation, except:
(i) Contingent Obligations for the benefit of the Lenders and the Secured
Creditors under the Intercreditor Agreement pursuant to the Collateral Documents
securing or supporting the Obligations, including Indebtedness permitted under
Section 7.1(iv), (vi) and (xi);
(ii) Contingent Obligations which are in existence on the Closing Date and,
with respect to the Omnipoint Loan Parties, which are set forth on Schedule 7.3;
(iii) Grand Parent may provide unsecured guarantees of Indebtedness of its
Subsidiaries permitted hereunder;
(iv) Contingent Obligations of the Omnipoint Entities constituting
Indebtedness permitted under Section 7.1; and
(v) Any commitments provided by Grand Parent in favor of any of its
Subsidiaries to make any Investments in any such Subsidiaries permitted under
Section 7.4.
Section 7.4 Restrictions on Investments. Grand Parent and the Borrower
---------------------------
shall not, and shall not permit any other Omnipoint Entity to, make or permit to
exist or to remain outstanding any Investment except:
(a) Investments in Rate Hedging Agreements in a notional principal
amount on any date not to exceed the aggregate principal amount of
Indebtedness of the Borrower accruing interest at a floating rate, and only
so long as the purpose of such Investments shall be to hedge such floating-
rate interest and shall not be to speculate on interest rates;
(b) Investments in commercial paper maturing in 90 days or less from
the date of issuance which, at the time of acquisition thereof, is accorded
a rating of A1 or better by Standard & Poor's Ratings Group or P1 or better
by ▇▇▇▇▇'▇ Investors Service, Inc. or an equivalent rating by another
nationally recognized credit-rating agency of similar standing;
(c) Investments in
67
(i) direct obligations of, or obligations guaranteed by, the
United States of America or any agency that constitutes a full-faith
and-credit obligation of the United States of America, in any case
maturing in 12 months or less from the date of acquisition thereof,
and
(ii) repurchase agreements fully secured by underlying securities
of the type described in clause (i) and issued by a bank or trust
company meeting the requirements of (S) 7.4(d);
(d) Investments in certificates of deposit maturing within six months
from the date of issuance thereof (i) issued by a bank or trust company
organized under the laws of the United States or any state thereof, having
capital, surplus and undivided profits aggregating at least $500,000,000
and whose long-term certificates of deposit are, at the time of acquisition
thereof, rated AA or better by Standard & Poor's Ratings Group or AA or
better by ▇▇▇▇▇'▇ Investors Service, Inc., or (ii) issued by any Lender;
(e) Investments in money-market funds (other than single-state funds)
that make investments in accordance with the regulations of the Securities
and Exchange Commission under the Investment Company Act of 1940, as
amended;
(f) Loans or advances (other than loans and advances to officers,
directors and employees to be used to exercise options with respect to
Grand Parent's stock) not to exceed [*] in the aggregate outstanding at any
time in the usual and ordinary course of business to officers, directors
and employees for expenses (including moving expenses related to a
transfer) incidental to carrying on the business of the Omnipoint Entities;
(g) Investments existing on the date hereof and listed on Schedule
7.4;
(h) Investments in the License Subsidiary by the Borrower consisting
of (x) all FCC Licenses held by the Borrower, (y) a capital contribution in
an aggre gate amount not to exceed [*] (including any previous contribution
in connec tion therewith) in connection with the organization thereof and
(z) capital contribu tions to the License Subsidiary to the extent
necessary to service scheduled principal and amortization of the
Indebtedness owed to the FCC;
(i) Provided that no Default is in existence (except with regard to
Post Default Investments) or would result therefrom, Investments by Grand
Parent in any of its directly or indirectly owned Subsidiaries; provided
that Investments in indirectly owned Subsidiaries shall be made by way of a
direct Investment in either OHI or Parent, which in turn may make
corresponding Investments in any of OHI's or Parent's respective
Subsidiaries;
(j) Investments by Grand Parent or the Borrower in OHI (and the
corresponding Investment by OHI) which are earmarked for Investments by OHI
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68
in joint ventures with other Persons in an amount not to exceed [*] at any
one time; provided that such amount shall be increased by an amount equal
to [*] of the cumulative Net Cash Proceeds of any and all equity capital
raised by Grand Parent from and after the Closing Date through and
including any such date of determination, up to a limit of [*] less any
previous Investments in joint ventures pursuant to this clause (j) which
subsequently become Subsidiaries of Grand Parent and are in substantially
the same line of business as any one or more Omnipoint Entities; provided
further that such [*] limit shall not apply at any time after which the
Borrower's EBITDA for the previous 12 consecutive months exceeds [*];
(k) Transfers of assets of a Non-Party Subsidiary to another Omnipoint
Entity;
(l) Loans or advances to Grand Parent by another Omnipoint Entity used
for the purposes set forth in Section 7.5; and
(m) Seller take-back financing with respect to any dispositions of
assets of any Omnipoint Entity permitted pursuant to Section 7.6 hereof.
Section 7.5 Distributions. Grand Parent and the Borrower shall not, and
-------------
shall not permit any other Omnipoint Entity to, make any Distributions, except
that, (a) any Non-Party Subsidiary may make Distributions to any Omnipoint
Entity, and (b) provided that the Administrative Agent has received a
certificate of the chief or principal accounting or financial officer of the
Borrower to the effect that no Default under Section 7.19(e) or otherwise is in
existence or would result therefrom, (x) OIT may make distributions to Grand
Parent in respect of Investments by Grand Parent in OIT and (y) the Borrower and
the Guarantors may make Distributions to Guarantors, and Guarantors may make
corresponding Distributions to Grand Parent (or to OIT for immediate
distribution to Grand Parent) to (i) repay or prepay principal in respect of
Intercompany Indebtedness owing to Grand Parent or any other Omnipoint Loan
Party and to pay current interest as and when due in respect of such
Indebtedness, (ii) pay interest on other Indebtedness of Grand Parent, (iii)
make Investments in Subsidiaries of Grand Parent permitted hereunder or repay or
prepay any Indebtedness of Grand Parent to any of its Subsidiaries, or (iv) to
prepay (whether optional or mandatory), repurchase, redeem or make scheduled
payments of principal on, the Cap Re Notes.
Section 7.6 Merger, Consolidation, Disposition of Assets, Etc.
-------------------------------------------------
(a) Grand Parent and the Borrower shall not, and shall not permit any
other Omnipoint Entity to, be a party to any merger or consolidation,
unless (i) the surviving entity is a United States corporation controlled
directly or indirectly by Grand Parent, (ii) no Default is in existence or
would arise immediately after giving effect to such merger or
consolidation, (iii) with respect to any merger or consolida tion of any
Omnipoint Loan Party, the surviving entity executes and delivers an
assignment and assumption agreement (covering all obligations under the
Loan
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69
Documents) satisfactory to the Administrative Agent and the Required
Secured Creditors and (iv) immediately after giving effect to such
transaction, on a pro forma basis, the consolidated net worth of the Person
formed by or surviving any such consolidation or merger, or to which such
sale, assignment, transfer, lease, conveyance or other disposition will
have been made, will be at least equal to the consolidated net worth of the
Omnipoint Entity prior to such transaction; provided that any Omnipoint
Entity (other than an Omnipoint Loan Party) may consolidate with, merge
into, sell, convey, transfer, lease or otherwise dispose of all or part of
its Property to another Omnipoint Entity (other than an Omnipoint Loan
Party).
(b) Grand Parent and the Borrower shall not, and shall not permit any
other Omnipoint Entity to, become a party to or agree to or effect any
disposition of assets, other than (i) Permitted Asset Sales, (ii)
dispositions as permitted in accordance with Section 7.16 hereof, (iii)
Permitted C-Block FCC License Transfers and (iv) permitted Investments in
accordance with Section 7.4(k) hereof; provided that nothing contained
herein shall prohibit the issuance and sale of the Capital Stock of Grand
Parent, OHI or any Non Party Subsidiary.
Section 7.7 Sale and Leaseback. Grand Parent and the Borrower shall not,
------------------
and shall not permit any other Omnipoint Entity to, enter into any arrangement,
directly or indirectly, whereby such Omnipoint Entity shall sell or transfer any
Property owned by it in order then or thereafter to lease such Property or lease
other property that it intends to use for substantially the same purpose as the
Property being sold or transferred.
Section 7.8 Compliance with Environmental Laws. Except as set forth in
----------------------------------
the Current Phase I Audit and the Action Letter, Grand Parent and the Borrower
shall not, and shall not permit any other Omnipoint Entity to,
(a) use any of the Real Estate or any portion thereof for the
handling, processing, storage or disposal of Materials of Environmental
Concern, except in compliance with applicable Environmental Laws;
(b) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Materials of
Environmental Concern, except in compliance with applicable Environmental
Laws;
(c) generate any Materials of Environmental Concern on any of the Real
Estate, except in compliance with applicable Environmental Laws;
(d) conduct any activity at any Real Estate or use any Real Estate in
any manner so as to cause a release (i.e., releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping) or threatened release of Materials of
Environmental Concern on, upon or into the Real Estate except in compliance
with applicable Environmental Laws; or
70
(e) otherwise conduct any activity at any Real Estate, except in
compliance with applicable Environmental Laws, or use any Real Estate in
any manner that would violate any applicable Environmental Law or bring
such Real Estate in violation of any Environmental Law.
Section 7.9 Employee Benefit Plans. Neither Grand Parent, Borrower nor
----------------------
any ERISA Affiliate shall
(a) engage in any "prohibited transaction" within the meaning of (S)
406 of ERISA or (S) 4975 of the IRC which could result in a material
liability for the Borrower;
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in (S) 302 of ERISA, whether
or not such deficiency is or may be waived;
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of the
Borrower pursuant to (S) 302(f) or (S) 4068 of ERISA;
(d) permit or take any action which would result in the aggregate
benefit liabilities (within the meaning of (S) 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities;
(e) fail to make when due any required contributions to a
Multiemployer Plan;
(f) withdraw (completely or partially) from any Multiemployer Plan
where such withdrawal is likely to result in a material liability of Grand
Parent or an ERISA Affiliate;
(g) terminate or institute proceedings to terminate, any Guaranteed
Pension Plan, where such termination is likely to result in a material
liability of Grand Parent or an ERISA Affiliate;
(h) make any amendment to any Guaranteed Pension Plan with respect to
which security is required under (S) 307 of ERISA; or
(i) fail to give any and all notices and make all disclosures and
governmental filings required under ERISA or the IRC where such failure is
likely to result in material liability to Grand Parent or an ERISA
Affiliate.
71
Section 7.10 Transactions with Affiliates. Grand Parent and the Borrower
----------------------------
shall not, and shall not permit any other Omnipoint Entity to, enter into any
transaction or series of related transactions, whether or not in the ordinary
course of business, with any Affiliate, other than those (i) in existence on the
date hereof and with respect to the Omnipoint Loan Parties set forth on Schedule
7.10 or (ii) on terms and conditions substantially as favorable to such
Omnipoint Entity as would be obtainable at the time in a comparable arm's-length
transaction with a Person other than an Affiliate or (iii) the payment of
reasonable and customary fees to directors of an Omnipoint Entity who are not
employees of such Omnipoint Entity and any employment agreement entered into by
such Omnipoint Entity in the ordinary course of business.
Section 7.11 Change in Nature of Business.
----------------------------
(a) Grand Parent and the Borrower shall not, and shall not permit any
other Omnipoint Entity or any future Subsidiary of any Omnipoint Entity to,
make any fundamental change in its business as carried on and as proposed
to be carried on at the date hereof.
(b) Grand Parent and the Borrower shall not, and shall not permit OHI
or Parent to, conduct any business other than holding the Capital Stock of
its Subsidiaries now or hereafter existing and the other activities
currently conducted by it and associated with its status as a holding
company and, with respect to OHI, making loans and Investments in and to
its Subsidiaries.
(c) Grand Parent and the Borrower shall not permit OII or OIT to
conduct any business other than cash management and related activities.
(d) Grand Parent and the Borrower shall not permit the License
Subsidiary to conduct any business other than the holding of the FCC
Licenses for the New York PCS Network and the licensing thereof to the
Borrower.
Section 7.12 Charter Amendments. Grand Parent and the Borrower shall not,
------------------
and shall not permit any other Omnipoint Entity to, amend its certificate of
incorporation or bylaws in any manner adverse to the Lenders except as may be
necessary to comply with applicable law. Grand Parent and the Borrower shall
not, and shall not permit any other Omnipoint Entity to, amend its limited
liability company agreement, operating agreement or other organizational
documents in any manner adverse to the Lenders except as may be necessary to
comply with applicable law.
Section 7.13 Accounting Changes. Grand Parent and the Borrower shall not,
------------------
and shall not permit any other Omnipoint Entity to, make or permit any change in
accounting policies or reporting practices, except as required by GAAP, or any
change in its fiscal year.
Section 7.14 Prepayments, Etc., of Indebtedness. Grand Parent and the
----------------------------------
Borrower shall not, and shall not permit any other Omnipoint Loan Party (other
than Grand Parent)
72
to, prepay, redeem, purchase, defease or otherwise satisfy prior to the
scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness owing by such Omnipoint Loan Party
(except that Grand Parent may prepay (whether optional or mandatory) any
Indebtedness owing by it or any of its Non-Party Subsidiaries, so long as in the
case of a voluntary prepayment no payment default exists at the Borrower under
this Agreement or the Note Purchase Agreement), other than the prepayment of the
Loans in accordance with the terms of this Agreement, the Intercreditor
Agreement or as the Required Secured Creditors may otherwise agree; provided
that the foregoing shall not apply to (i) Indebtedness owing to the FCC; (ii)
prepayment of Intercompany Indebtedness to the extent the proceeds of
Distributions may be used in compliance with Section 7.5; and (iii)
notwithstanding anything contained in this Section 7.14, Grand Parent may
refinance the Senior Notes provided that such refinancing (x) is unsecured and
is not guaranteed or supported by the Borrower or any Guarantor, (y) does not
have a maturity date prior to the maturity date of the Senior Notes or any manda
tory amortization provisions more favorable to the lenders thereunder than those
contained in the Senior Notes and (z) is on terms no more restrictive in any
material respect to Grand Parent or any Affiliate of Grand Parent than the terms
of this Agreement are to Grand Parent or the applicable Affiliate.
Section 7.15 Amendment, Etc., of Material Contracts. Grand Parent and the
--------------------------------------
Borrower shall not, and shall not permit any other Omnipoint Entity to, cancel
or terminate any Material Contract or consent to or accept any cancellation or
termination thereof, amend or otherwise modify any Material Contract or give any
consent, waiver or approval thereunder, waive any default under or breach of any
Material Contract, agree in any manner to any other amendment, modification or
change of any term or condition of any Material Contract, or take any other
action in connection with any Material Contract that, in any such case, could,
at the time thereof, reasonably be expected to have a Material Adverse Effect on
any Omnipoint Loan Party.
Section 7.16 Asset Swaps. Grand Parent and the Borrower shall not, and
-----------
shall not permit any other Omnipoint Entity to, enter into any agreement for or
effect the exchange of its telecommunication assets for the telecommunication
assets of another Person, unless (i) such Omnipoint Entity receives like
telecommunication assets of a fair market value at least equal to the
telecommunication assets it disposes of, as appraised by an independent third
party appraiser acceptable to the Administrative Agent, and (ii) no Default is
in existence or would result therefrom; provided that no such swap may be made
of any material License of any Omnipoint Loan Party.
73
Section 7.17 Certain Restrictions. Grand Parent and the Borrower shall
--------------------
not, and shall not permit (i) any other Omnipoint Loan Party to, enter into any
agreement (other than the Loan Documents and the other agreements set forth on
Schedule 7.17) which restricts the ability of such Omnipoint Loan Party to enter
into amendments, modifications or waivers of the Loan Documents or (ii) Grand
Parent or any Non-Party Subsidiary to, enter into any agreement (other than the
Loan Documents and the other agreements set forth on Schedule 7.17) which
contains (a) covenants exclusively with respect to the Borrower which are more
restrictive than the Senior Notes or (b) any other provisions which prohibit or
restrict the Borrower from making any payment or prepayment under this Agreement
or the Note Purchase Agreement.
Section 7.18 No Additional Subsidiaries. The Borrower shall not form or
--------------------------
acquire any new Subsidiaries, other than the License Subsidiary.
Section 7.19 Financial Covenants.
-------------------
(a) Minimum Subscribers. The Borrower shall not have fewer
-------------------
Subscribers as of each of the dates indicated below than the number indicated
below opposite each such date:
Date Number of Subscribers
-------------------- ---------------------
[*] [*]
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
74
[*] [*]
(b) Minimum Revenues. The Borrower shall not permit its Revenues for
----------------
each of the periods indicated below (tested as of the end of the relevant fiscal
period) to be less than the amount indicated below opposite each such period:
Period Revenues
--------------------------------------------- ------------
[*] [*]
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
75
[*] [*]
(c) Leverage Ratio. (i) The Borrower shall not permit the ratio of
---------------
Total Covenant Indebtedness to Adjusted Annualized EBITDA to exceed at any time
during any of the periods indicated below, the ratio set forth below opposite
such period:
Period Ratio
---------------------------------------- -----
(from and including, to and including)
[*] [*]
(ii) The Borrower shall not permit the ratio of Total Covenant
Indebtedness to Annualized EBITDA to exceed at any time, during any of the
periods indicated below, the ratio set forth below opposite such period:
Period Ratio
---------------------------------------- -----
[*] [*]
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
76
[*] [*]
(d) Fixed Charge Ratio. The Borrower shall not permit the ratio of
------------------
Annualized EBITDA to Fixed Charges at any time during any of the periods set
forth below to be less than the ratio set forth below with respect to such
period.
Period Ratio
---------------------------------------- -----
[*] [*]
(e) Total Covenant Indebtedness to Book Capitalization. [*]
--------------------------------------------------
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
77
ARTICLE VII
CONDITIONS TO THE INITIAL LOANS
-------------------------------
The obligations of the Lenders to make their initial Loans shall be subject
to the satisfaction of the following conditions precedent on or prior to the
date of such initial Loans (the "Closing Date"):
------------
Section 8.1 Loan Documents. Each Lender shall, to the extent requested
--------------
prior to the Closing Date, have received a Note, duly executed and delivered by
the Borrower, as well as each of the other Loan Documents, which shall have been
duly executed and delivered by the respective parties thereto, shall be in full
force and effect and shall be in form and substance satisfactory to the
Administrative Agent, each of the Lenders and their counsel.
Section 8.2 Proceedings and Documents. All corporate and other
-------------------------
proceedings in connection with the transactions contemplated hereby and by the
other Loan Documents shall be satisfactory to the Administrative Agent, each of
the Lenders and their counsel, and the Administrative Agent shall have received
such secretary's certificates, certificates of the Secretary of State of the
state of organization or incorporation of each Omnipoint Loan Party and other
copies of documents with respect thereto as it may reasonably request.
Section 8.3 Validity of Liens. The Collateral Documents shall be
-----------------
effective to create in favor of the Administrative Agent a legal, valid and
enforceable first-priority security interest (except for Permitted Liens that
have priority under applicable law) in and Lien upon the Collateral. All
filings, recordings, deliveries of instruments and other actions necessary or
desirable in the opinion of the Administrative Agent to protect, perfect and
preserve such security interests shall have been duly effected and all such
documents shall have been duly executed by the Borrower, Parent, License
Subsidiary, OHI and OIT, as applicable. The Administrative Agent shall have
received evidence thereof in form and substance satisfactory to the
Administrative Agent.
Section 8.4 Search Reports and Related Documents. The Administrative
------------------------------------
Agent shall have received
(a) such UCC, tax, patent, trademark and judgment lien search reports
with respect to such applicable public offices where Liens are filed, as
shall be acceptable to the Administrative Agent, disclosing that there are
no Liens (other than Permitted Liens) of record in such official's office
covering any Collateral or showing the Borrower, Parent, License
Subsidiary, OHI or OIT as a debtor thereunder;
(b) a certificate of the Borrower, Parent, License Subsidiary, OHI and
OIT, signed by an authorized officer of each thereof, dated the Closing
Date, certifying that, as of the Closing Date, there will exist no Liens on
the Collateral other than Permitted Liens; and
78
(c) acknowledgment copies or duly executed file-stamped copies of
UCC-1 and UCC-3 financing statements with respect to the Collateral filed
in each office where such filing is necessary or appropriate to perfect a
Lien on the Collateral.
Section 8.5 Certificates of Insurance. The Administrative Agent shall
-------------------------
have received a certificate of insurance from an independent insurance broker
naming the Administrative Agent as an additional insured and/or a loss payee,
dated as of the Closing Date, identifying insurers, types of insurance,
insurance limits, and policy terms, and otherwise describing the insurance
obtained in accordance with the provisions of the Borrower Security Agreement
and this Agreement.
Section 8.6 Solvency Certificate. The Administrative Agent shall have
--------------------
received an officer's certificate of the Borrower and Grand Parent dated as of
the Closing Date as to the Borrower and each other Omnipoint Loan Party being
Solvent following the consummation of the transactions contemplated herein and
in form and substance satisfactory to the Administrative Agent and Lenders.
Section 8.7 Opinion of Counsel to Omnipoint Loan Parties. Each of the
--------------------------------------------
Lenders and the Administrative Agent shall have received a favorable legal
opinion of counsel to the Omnipoint Loan Parties addressed to the Lenders and
the Administrative Agent, dated as of the Closing Date, in form and substance
satisfactory to the Lenders and the Administrative Agent.
Section 8.8 Opinion of FCC Counsel. Each of the Lenders and the
----------------------
Administrative Agent shall have received a favorable legal opinion addressed to
the Lenders and Administrative Agent from FCC counsel to the Borrower and
Parent, dated as of the Closing Date, in form and substance satisfactory to the
Lenders and the Administrative Agent.
Section 8.9 Payment of Fees. The Borrower shall have paid all fees and
---------------
expenses payable on the Closing Date by the Borrower or any other Omnipoint Loan
Party, including, without limitation, all fees payable on the Closing Date
pursuant to Section 2.3 and, to the extent invoiced, the reasonable fees and
expenses of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Lenders and
the Agents, Pillsbury Madison & Sutro LLP, counsel to the Administrative Agent
and any FCC and local counsel to the Lenders.
Section 8.10 Approvals, Permits. The Borrower shall have obtained all
------------------
Federal, state and local governmental and regulatory consents, approvals,
Licenses and permits, including any third-party consents, as required or
necessary for the Borrower to borrow Loans hereunder and continue with the
construction and development of the New York PCS Network as contemplated for the
current stage of construction and development on the Closing Date and operate
its business pursuant to the Full Term Operating Business Plan, and all such
consents, approvals, Licenses and permits shall remain in effect; all applicable
waiting periods shall have expired without any action being taken by any
competent authority; no law or regulation shall be applicable in the judgment of
the Lenders that restrains, prevents or imposes materially adverse conditions
upon the Loans or the construction and development of the New York PCS Network
referred to above or the operation of
79
the Borrower's business pursuant to the Full Term Operating Business Plan and
the Administrative Agent shall receive a certificate of an authorized officer of
the Borrower to that effect dated the Closing Date.
Section 8.11 Delivery of Operating Business Plans. The Borrower shall have
------------------------------------
delivered to Administrative Agent and each Lender
(a) an Annual Operating Business Plan for its 1998 fiscal year and
(b) a Full-Term Operating Business Plan,
each of which shall be in form and substance satisfactory to the Administrative
Agent and each Lender, together with a certificate of its chief or principal
accounting or financial officer dated the Closing Date certifying as to the
reasonableness of the assumptions and expectations contained therein and that
there are presently no facts known to such Person that would make either such
plan misleading in any material respect.
Section 8.12 Material Agreements. Subject to confidentiality restrictions,
-------------------
the Administrative Agent shall have received a complete and correct copy,
certified by an authorized officer of the Borrower, of (a) the Expense
Allocation Agreement and the Cash Management Agreement, in each case as then in
effect, and (b) each other contract set forth on Schedule 5.24, as such other
contract is then in effect and as to which the Administrative Agent shall have
requested a copy on or before the Closing Date.
Section 8.13 Litigation. There shall exist no action, suit, investigation,
----------
litigation or proceeding pending or threatened in any court or before any
arbitrator or governmental instrumentality that could in the reasonable opinion
of the Lenders have a Material Adverse Effect.
Section 8.14 Existing Bank Debt. The Administrative Agent shall have
------------------
received evidence satisfactory to it (i) that the proceeds of the Initial Loans
shall repay in full all of the Existing Bank Debt (including, without
limitation, all fees payable pursuant to (S) 2.3 of the Existing Loan Agreement)
and that all lenders of the Existing Bank Debt shall have released (or shall,
effective immediately upon receipt of such proceeds, release) the Borrower from
any and all obligations under the Existing Bank Debt, (ii) that all commitments
of the lenders of such Existing Bank Debt to make loans or advances to the
Borrower shall be terminated on or prior to the Closing Date and (iii) that all
Liens securing obligations of the Borrower under the Existing Bank Debt shall be
released and terminated on or prior to the Closing Date (or shall, effective
immediately upon receipt of the proceeds of the initial Loan in an amount
sufficient to repay all amounts owing in respect of the Existing Bank Debt,
release and terminate all such Liens).
80
Section 8.15 Creation of OHI Subsidiary. The Borrower shall have caused
--------------------------
the establishment of a new Subsidiary of OHI (the "OHI Subsidiary") and shall
have taken all steps necessary to enable OHI to pledge its Capital Stock in the
OHI Subsidiary in favor of the Administrative Agent for the benefit of the
Lenders and the Secured Creditors under the Intercreditor Agreement pursuant to
the OHI Pledge Agreement.
Section 8.16 Title Insurance. The Administrative Agent shall have received
---------------
a paid policy of mortgage title insurance with respect to each parcel of Real
Estate to be subject to a Mortgage, in amount satisfactory to the Administrative
Agent and issued by a title insurance company satisfactory to the Administrative
Agent.
Section 8.17 Financial Statements. The Administrative Agent shall have
--------------------
received the audited financial statements of Grand Parent and its Subsidiaries
and the Borrower and its Subsidiaries for the fiscal year ending December 31,
1996 and the unaudited financial statements of Grand Parent and its Subsidiaries
and the Borrower and its Subsidiaries for the fiscal quarter ending
September 30, 1997.
Section 8.18 Environmental Matters. The Administrative Agent shall (i) be
---------------------
satisfied that no Omnipoint Loan Party is subject to any Environmental Claim
which could have a Material Adverse Effect and (ii) have received an
environmental audit report in form and substance satisfactory to the Agent and
the Lenders prepared by an independent environmental consultant acceptable to
the Administrative Agent and the Lenders with respect to the Real Estate of the
Borrower and its Subsidiaries.
Section 8.19 Access Agreements. The Administrative Agent shall have
-----------------
received executed copies of the Access Agreements, which shall be in full force
and effect and the terms of which shall not have been waived, amended or
otherwise modified without the prior consent of the Administrative Agent.
Section 8.20 Subordination Agreements. The Administrative Agent shall have
------------------------
received executed Subordination Agreements subordinating to all Obligations all
Intercompany Indebtedness owed by the Borrower or any Guarantor, which
documentation shall be consistent with the terms and conditions of this
Agreement. The Administrative Agent shall have received documentation
satisfactory to it and the Required Secured Creditors that the Intercompany
Indebtedness is evidenced by notes and is "back to back" or otherwise documented
to provide the intended benefits to the Lenders of such subordination.
Section 8.21 Consent Agent. The Administrative Agent shall have received a
-------------
consent letter from the C. T. Corporation System, presently located at ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (together with any successor thereto, the
"Consent Agent"), indicating its consent to its appointment as agent to receive
service of process on behalf of each of the Omnipoint Loan Parties.
Section 8.22 Other Documents. The Administrative Agent and each Lender
---------------
shall receive all other documents, instruments and opinions from the Borrower
and Grand Parent
81
(including opinions of counsel for the Borrower and Grand Parent) as the
Administrative Agent and each Lender may reasonably request, in form and
substance satisfactory to the Administrative Agent and each Lender and their
counsel, and which shall be in full force and effect on the Closing Date.
Section 8.23 Note Purchase Agreement. The Holders under the Note Purchase
-----------------------
Agreement shall have purchased, or contemporaneously with the making of the
Initial Loans shall purchase, the Senior Secured Notes.
Section 8.24 Other Conditions. The conditions in Section 9.1 shall have
----------------
been satisfied.
By their execution and delivery of this Agreement, each Lender agrees and
acknowledges that as of the Closing Date it has received an unexecuted form of
each of the Loan Documents required to be delivered pursuant to Section and each
other document and agreement required to be delivered to it pursuant to this
Article VIII, and that the form of each Loan Document and each other such
document and agreement is satisfactory to it.
ARTICLE IX
ADDITIONAL CONDITIONS TO LOANS
------------------------------
Section 9.1 Conditions to All Loans. The obligation of each Lender to
-----------------------
make any Loan, including its initial Loan, shall also be subject to the
satisfaction of the following conditions precedent:
(a) The Administrative Agent shall have received a timely and properly
completed Draw Request.
(b) Each of the representations and warranties of the Borrower and the
other Omnipoint Entities contained in this Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with this Agreement shall be true at and as of the time of the
making of such Loan with the same effect as if made at and as of that time
(except to the extent of changes resulting from transactions contemplated
or permitted by this Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date).
(c) No Default shall have occurred and be continuing.
(d) No Material Adverse Effect shall have occurred (other than
continuing losses of the Borrower materially in compliance with the
projections provided pursuant to the Full-Term Operating Business Plan).
82
(e) No change shall have occurred in any law or regulation or
interpretations thereof that in the reasonable opinion of any Lender would
make it illegal for such Lender to make such Loan and no order of any court
or Governmental Body shall have been entered prohibiting the consummation
of the transactions contem plated by the Loan Documents.
(f) Each Lender shall have received such statements in substance and
form reasonably satisfactory to such Lender as such Lender shall require
for the purpose of compliance with any applicable regulations of the
Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
(g) The Administrative Agent shall have received such other approvals,
opinions or documents as it or any Lender through the Administrative Agent
may reasonably request.
Each delivery of a Draw Request shall constitute a representation and warranty
by the Borrower as to the matters specified in clause (b) and (c) above.
ARTICLE X
EVENTS OF DEFAULT; ACCELERATION; ETC.
-------------------------------------
Section 10.1 Events of Default and Acceleration. Upon the occurrence and
----------------------------------
during the continuance of any of the following events (each an "Event of
Default"),
(a) the Borrower shall fail to pay (i) any principal of the Loans when
due or (ii) any fee payable pursuant to Section 2.3 or any interest on the
Loans or any other sum hereunder or under any of the other Loan Documents
to which it is a party, in each such case, with respect to this clause
(ii), within three days after the date on which the same shall become due
and payable; or
(b) Grand Parent or the Borrower shall fail to comply with any of the
covenants contained in Section 6.13(h), 6.16 or Article VII; or
(c) Any Omnipoint Loan Party shall fail to perform any term, covenant
or agreement contained herein or in any of the other Loan Documents (other
than those specified elsewhere in this Section 10.1) and such failure shall
continue for a period of 30 consecutive days after the earlier of (i)
written notice thereof from the Administrative Agent or (ii) actual
knowledge thereof by such Omnipoint Loan Party; or
(d) any representation or warranty of any Omnipoint Entity under this
Agreement or any of the other Loan Documents or in any other document or
instrument delivered pursuant to or in connection with this Agreement or
any Loan
83
Document shall not be correct in any material respect upon the
date when made or deemed to have been made or repeated; or
(e) (i) any Significant Entity shall
(A) make an assignment for the benefit of creditors, or
(B) generally not pay its debts as such debts become due or admit
in writing its inability to generally pay or generally fail to pay its
debts as they mature or become due, or
(C) petition or apply for the appointment of a trustee or other
custodian, liquidator or receiver for itself or for any substantial
part of its assets, or
(D) shall commence any case or other proceeding under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution or liquidation or similar law of any jurisdiction
providing for the relief of debtors, now or hereafter in effect
(ii) any petition or application described in (i)(C) or (D) above
shall be filed or any such case or other proceeding shall be commenced
against any Significant Entity and (x) any Significant Entity shall
indicate its approval thereof, consent thereto or acquiescence therein, or
(y) such petition, application or proceeding is not dismissed within 45
days thereof, or (z) any of the actions sought in such petition,
application or proceeding (including the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or any substantial part of its property) shall
occur; or
(iii) any Significant Entity shall take any corporate action to
authorize any of the actions set forth above in this subsection (e); or
(f) any Significant Entity shall fail to pay any principal of, premium
or interest on or any other amount payable in respect of any Indebtedness
that is outstanding in a principal amount of at least $10 million in the
aggregate (but excluding Indebtedness outstanding hereunder and
Indebtedness owed to the FCC), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration, demand
or otherwise), or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Indebtedness of any
Significant Entity, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Indebtedness or otherwise to cause, or to permit the holder thereof to
cause, such Indebtedness to mature; or any such Indebtedness of any
Significant Entity shall be declared to be due and payable or required to
be prepaid or redeemed (other than by a regularly scheduled required
prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Indebtedness shall be required to be
84
made, other than (i) the redemption or repurchase of not more than [*] of
Senior Notes as permitted in the last sentence of the definition of "Change
of Control" in Article I and (ii) from the Net Cash Proceeds of asset sales
(in accordance with Section 3.2), or equity or debt issuances, in each case
prior to the stated maturity thereof; or
(g) any final judgment or order for the payment of money in an amount
of $10,000,000 or more (excluding any portion thereof that an insurance
company of recognized standing and creditworthiness reasonably satisfactory
to the Administrative Agent has agreed to pay) shall be rendered against
one or more Significant Entities and shall not be paid, discharged or
bonded and either
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or
(ii) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(h) any of the Loan Documents shall be cancelled, terminated, revoked
or rescinded otherwise than in accordance with the terms thereof or with
the express prior written agreement, consent or approval of the Lenders, or
any action at law, suit or in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of any Omnipoint Entity, or any Guarantor shall assert that its
respective guaranty of the Obligations of the Borrower is invalid, or any
court or any other governmental or regulatory authority or agency of
competent jurisdiction shall make a determination that, or issue a
judgment, order, decree or ruling to the effect that, any one or more of
the Loan Documents is illegal, invalid or unenforceable in any material
respect in accordance with the terms thereof; or
(i) with respect to any Guaranteed Pension Plan: an ERISA Event shall
have occurred and the Required Secured Creditors shall have determined in
their reasonable discretion that such event reasonably could be expected to
result in liability of Grand Parent or any of its Subsidiaries to the PBGC
or such Guaranteed Pension Plan in an aggregate amount of $10,000,000 or
more; or a trustee shall have been appointed by the United States District
Court to administer such Guaranteed Pension Plan; or the PBGC shall have
instituted proceedings to terminate such Guaranteed Pension Plan or
appointed a trustee to administer or liquidate any plan; or
(j) (i) any Environmental Claim shall have been asserted against any
Omnipoint Entity or any Environmental Affiliate thereof which, if
determined adversely, could reasonably be expected to have a Material
Adverse Effect, (ii) any release, emission, discharge or disposal of any
Material of Environmental Concern shall have occurred, and such event could
form the basis of an Environmental Claim
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
85
against any Omnipoint Entity or any Environmental Affiliate thereof which,
if determined adversely, could have a Material Adverse Effect, or (iii) any
Omnipoint Entity or its Environmental Affiliate shall have failed to obtain
any Environmental Permit necessary for the management, use, control,
ownership, or operation of its business, property or assets or any such
Environmental Permit shall be revoked, terminated, or otherwise cease to be
in full force and effect, in each case, if the existence of such condition
could have a Material Adverse Effect;
(k) the FCC or any other Governmental Body shall cancel, revoke or
suspend (i) any of the Borrower's Licenses for the New York PCS Network, or
any License held by the License Subsidiary, or fail to renew any such
License or (ii) any other License or group of Licenses held by Grand Parent
or any of its Significant Subsidiaries (other than "C" Block Licenses) the
loss of which could reasonably be expected to have a Material Adverse
Effect on Grand Parent and its Significant Subsidiaries, taken as a whole;
or
(l) the FCC or any other Governmental Body shall commence any
proceeding to cancel, revoke or suspend any of the Borrower's or the
License Subsidiary's Licenses for the New York PCS Network which proceeding
for the cancellation, revocation or suspension (i) could reasonably be
expected to have a Material Adverse Effect and (ii) has not been stayed or
enjoined by the Borrower or the License Subsidiary within five business
days after the commencement of any such proceeding; or
(m) the Borrower or the License Subsidiary shall fail to pay when due
amounts owing the FCC unless (i) such failure to pay can reasonably be
expected, in the sole reasonable judgment of the Required Secured
Creditors, not to result in any cancellation, revocation or suspension of
any of the Borrower's or the License Subsidiary's Licenses for the New York
PCS Network or (ii) the Borrower or the License Subsidiary has obtained a
stay or injunction against any action by the FCC to cancel, revoke or
suspend such License notwithstanding such failure to pay; or
(n) the Administrative Agent shall cease to have a valid and perfected
first-priority Lien on any Collateral (subject only to Permitted Liens)
securing the Obligations of the Borrower (or in the case of Collateral
pledged by Parent, License Subsidiary, OHI or OIT, each such Person's
respective guaranty of the Obligations of the Borrower) or the Borrower,
Parent, License Subsidiary, OHI or OIT shall so assert; or
(o) a Change of Control shall occur.
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the request of the Required Secured Creditors
shall, by notice to the Borrower, (i) declare the Commitments of each Lender to
make Loans to be terminated, whereupon the same shall forthwith terminate,
and/or (ii) declare the amount of all outstanding principal of the Loans, the
Notes, all interest thereon and all other amounts
86
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the outstanding principal amount of the Loans, the Notes,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower; provided that upon the
--------
occurrence of an Event of Default under subsection (e) above, (A) the
Commitments of each Lender to make Loans shall automatically be terminated and
(B) the amount of all outstanding principal of the Loans, the Notes, all such
interest and all such amounts shall automatically become and be immediately due
and payable, without presentment, demand, protest or any notice of any kind, all
of which are hereby expressly waived by the Borrower; and provided further that
----------------
any action taken pursuant to this paragraph shall be subject to the terms of the
Intercreditor Agreement.
ARTICLE XI
THE ADMINISTRATIVE AGENT
------------------------
Section 11.1 Authorization and Action. Each Lender appoints and authorizes
------------------------
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including enforcement or collection of the Notes), the Administrative Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected and
indemnified in so acting or refraining from acting) upon the instructions of
the Required Lenders or, if applicable, the Required Secured Creditors (unless
otherwise provided herein), and such instructions shall be binding upon all
Lenders; provided that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent will
give to each Lender prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have
any duties or responsibilities to any Lender, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities to any Lender
shall be read into this Agreement or otherwise exist against the Administrative
Agent. The Borrower agrees to pay the Administrative Agent such compensation
for services rendered hereunder as may be separately agreed between the Borrower
and the Administrative Agent in the Agent's Fee Letter.
Section 11.2 Administrative Agent's Reliance, Etc. Neither the Administrative
------------------------------------
Agent nor any of its respective directors, officers, agents or employees shall
be (a) liable for any action taken or omitted to be taken by it or them under or
in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct or (b) responsible in any manner to any of the
Lenders for any recitals, statements, representations
87
or warranties made by the Borrower or any officer thereof contained in this
Agreement, any other Loan Document or any certificate, report, statement or
other document referred to or provided for in, or received by the Administrative
Agent under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document for any failure of the Borrower to perform its
obligations or satisfy any condition hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of the Borrower. Without limitation of the
generality of the foregoing, the Administrative Agent:
(a) may treat the Lender that made any Loan as the holder of the
Indebtedness resulting therefrom until the Administrative Agent receives
and accepts an Assignment and Acceptance entered into by such Lender, as
assignor, and an assignee, as provided in (S) 12.7;
(b) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
made in or in connection with the Loan Documents;
(c) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of
any Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party;
(d) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of
any Loan Document or any other instrument or document furnished pursuant
hereto;
(e) shall be fully justified in failing or refusing to take action
under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or Required
Secured Creditors, as applicable, as it deems appropriate or it shall first
be indemnified to its satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action;
(f) shall incur no liability as a result of any determination whether
the transactions contemplated by the Loan Documents constitute a "highly
leveraged transaction" within the meaning of the interpretations issued by
the Comptroller of the Currency, the Federal Deposit Insurance Corporation
and the Board of Governors of the Federal Reserve System;
(g) may act by or through its agents or attorneys-in-fact;
88
Section 11.3 Administrative Agent's Rights as Lender. With respect to its
---------------------------------------
Commitments, any Loans made by it and any Note issued to it, the Administrative
Agent in its individual capacity shall have the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as though it were
not the Administrative Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include any Administrative Agent in its
individual capacity. Any Administrative Agent in its individual capacity and
its affiliates may generally engage in any kind of business with, the Borrower
and any of its Affiliates and any Person who may do business with or own
securities of the Borrower or any of its Affiliates, all as if any
Administrative Agent in its individual capacity were not the Administrative
Agent and without any duty to account therefor to the Lenders.
Section 11.4 Lender Credit Decision. Each Lender acknowledges that it has,
----------------------
independently and without reliance upon any Agent or any other Lender and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower which
may come into the possession of the Administrative Agent or any of its
officers, directors, employees, Administrative Agents, attorneys-in-fact or
Affiliates.
Section 11.5 Indemnification. Each Lender severally will indemnify the
---------------
Administrative Agent (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so) from and against such
Lender's ratable share of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent in any way relating to or arising out of the
Loan Documents or any action taken or omitted by the Administrative Agent under
the Loan Documents or any documents contemplated hereby or thereby; provided
that no Lender shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender will
reimburse the Administrative Agent promptly upon demand for its ratable share of
any costs and expenses payable by the Borrower under Section 12.4, to the extent
that the Administrative Agent is not promptly reimbursed for such costs and
expenses by the Borrower. For purposes of this Section 11.5, the Lenders'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Loans
outstanding at such time and owing to the respective Lenders and (b) the
aggregate unused portions of their respective Commit ments. The failure of any
Lender to reimburse the Administrative Agent promptly upon demand for
89
its ratable share of any amount required to be paid by the Lenders to the
Administrative Agent as provided herein shall not relieve any other Lender of
its obligation hereunder to reimburse the Administrative Agent for its ratable
share of such amount, but no Lender shall be responsible for the failure of any
other Lender to reimburse the Administrative Agent for such other Lender's
ratable share of such amount.
Section 11.6 Successor Administrative Agents. The Administrative Agent may
-------------------------------
resign upon 30 days' written notice to the Lenders and the Borrower and may be
removed at any time by the Required Secured Creditors or the Borrower with or
without cause upon 30 days' notice from the Required Secured Creditors or the
Borrower, as the case may be. If the Administrative Agent shall be so removed or
resign, the Required Secured Creditors during such 30 day period shall appoint
from among the Lenders a successor agent, whereupon such successor agent shall
succeed to the rights, powers and duties of the Administrative Agent and the
term "Administrative Agent" as used herein and in all other Loan Documents shall
mean such successor agent, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of
this Article XI shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Administrative Agent under this Agreement. A
successor Administrative Agent will notify the Borrower of its appointment
promptly after its appointment.
Section 11.7 Other Agents. Without limiting any provision contained in
------------
this Section 11 neither the Syndication Agent, the Documentation Agent nor the
Co-Agent shall have, except if any such Persons shall also be Lenders, as to and
to the limited extent expressly provided herein, any obligation, responsibility
or duty under this Agreement other than those applicable to all Lenders as such.
Each Lender acknowledges that it has not relied, and will not rely, on the
Syndication Agent, the Documentation Agent or the Co-Agent, in deciding to enter
into this Agreement or in taking or not taking action hereunder.
Section 11.8 Notice of Default and Other Notices. The Administrative Agent
-----------------------------------
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default hereunder unless the Administrative Agent has received prior
written notice from a Lender or the Borrower referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default." In the event that the Administrative Agent receives such a
notice, the Administrative Agent shall give notice thereof to the Lenders.
Without limiting the generality of the foregoing or subsection 10.1, the
Administrative Agent shall not be required to take any action with respect to
any Default or Event of Default except as directed by the Required Secured
Creditors, provided that unless and until the Administrative Agent shall have
--------
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deemed advisable in the best
interests of the Lenders.
90
ARTICLE XII
MISCELLANEOUS
-------------
Section 12.1 Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement or the Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Secured Creditors (and the terms of effectiveness set
forth in such amendment, waiver or consent shall be satisfied), and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided that
--------
(a) no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following at any time:
(i) waive any of the conditions specified in Article IX or, in
the case of the initial Borrowing, Article VIII;
(ii) change the definition of Required Secured Creditors (or,
without the vote of the Required Lenders only, change the definition
of Required Lenders);
(iii) release any Collateral, other than as contemplated by the
Loan Documents or release the Parent Guaranty, the Subsidiary
Guaranty, the OHI Guaranty or the OIT Guaranty;
(iv) amend this Section 12.1;
(v) amend or waive any mandatory prepayment provisions;
(vi) increase the Commitments of the Lenders or subject the
Lenders to any additional obligations;
(vii) reduce the principal of, or interest on, the Loans or the
Notes or any fees or other amounts payable hereunder; or
(viii) postpone any date fixed for any payment of principal of,
or interest on, the Notes or any fees or other amounts payable
hereunder; and
(b) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement or any other Loan Document.
Section 12.2 Notices, Etc. All notices and other communications provided
------------
for hereunder shall be in writing (including telegraphic, telecopy or cable
communication) and mailed, telegraphed, telecopied, cabled or delivered,
91
(a) if to the Borrower, at:
Omnipoint Communications Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
[*]
with a copy to:
Piper & Marbury, L.L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
[*]
(b) if to Grand Parent, at:
Omnipoint Corporation
Three Bethesda ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[*]
with a copy to Piper & Marbury, L.L.P. as set forth under clause
(a) above;
(c) if to OHI, OIT or the License Subsidiary, in care of
Omnipoint Corporation
Three Bethesda ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
[*]
(d) if to any Lender, at its domestic lending office or other address
provided by the Lender; and
(e) if to the Administrative Agent,
(i) for notices with respect to Draw Requests and Requests for
Conversations/Continuation:
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
92
Bank of America National Trust & Savings Association
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[*]
(ii) for all other notices:
Bank of America National Trust & Savings Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[*]
or, as to each party, at such other address as shall be designated by such party
in a written notice to the other parties. All such notices and communications
shall, when mailed, telegraphed, telecopied or cabled, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or delivered to the cable company, respectively, except that notices
and communications to the Administrative Agent pursuant to Article II, III or XI
shall not be effective until received by the Administrative Agent.
Section 12.3 No Waiver; Remedies. No failure on the part of any Lender or
-------------------
the Administrative Agent to exercise, and no delay in exercising, any right
hereunder or under any Note or any other Loan Document shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
Section 12.4 Costs, Expenses.
---------------
(a) The Borrower will pay on demand
(i) all costs and expenses of the Agents incurred in connection
with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents and any consents or
waivers in connection therewith (including (A) all search, filing and
recording fees and expenses and (B) the reasonable fees and expenses
of counsel for the Agents with respect to the Loan Documents, with
respect to advising the Agents as to their rights and
responsibilities, or the perfection, protection or preservation of
rights or interests, under the Loan Documents and with respect to
negotiations with the Omnipoint Loan Parties or with other creditors
of the Omnipoint Loan Parties in connection with the Loan Documents,
or arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or
otherwise participating in
---------------------------------------------------------------------------
* CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SEC
93
or monitoring any bankruptcy, insolvency or other similar proceeding
or negotiation involving creditors' rights generally and any
proceeding ancillary thereto), and
(ii) all costs and expenses of the Agents and the other Lenders
in connection with the enforcement of the Loan Documents, including in
any action, suit or litigation, any bankruptcy, insolvency or other
similar proceeding affecting creditors' rights generally or otherwise
(including the reasonable fees and expenses of counsel for the Agents
and each other Lender with respect thereto).
(b) If, at any time any payment of principal of, or Conversion of, any
LIBO Rate Loan is made by the Borrower to or for the account of a Lender
other than on the last day of the Interest Period for such Loan, as a
result of any repayment, prepayment or Conversion thereof, acceleration
of the maturity of the Notes or Loans pursuant to (S) 10.1 or for any other
reason, or any payment of principal of or Conversion of any LIBO Rate Loan
is not made on any date specified in any notice of prepayment or Notice of
Conversion or Continuation, the Borrower shall, upon demand by such Lender
(with a copy of such demand to the Administrative Agent), pay to such
Lender any loss, cost or expense (including loss of anticipated profit)
that any Lender may sustain or incur as a consequence of the making of any
payment of a LIBO Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto or as a consequence of not
making any such payment or Conversion on such specified date. In the case
of any Loan that the related Draw Request specifies is to be comprised of
LIBO Rate Loans, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Draw Request for such Loan
the applicable conditions set forth in Article VIII and IX, including any
loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds
acquired by such Lender to fund the Loan to be made by such Lender when
such Loan, as a result of such failure, is not made on such date.
(c) If the Borrower fails to pay when due any costs, expenses or other
amounts payable by it under any Loan Document, including fees and expenses
of counsel and indemnities, such amount may be paid on behalf of the
Borrower by the Administrative Agent or any Lender, in its sole discretion.
(d) The Borrower will indemnify each Lender, each Agent and their
respective Affiliates and their officers, directors, partners, employees,
agents and advisors (each an "Indemnified Party") and hold each Indemnified
-----------------
Party harmless from and against any and all claims, damages, losses,
liabilities and expenses (including reasonable fees and expenses of counsel
including, with respect to the Agents and each other Lender, reasonable
allocated costs and expenses of in-house counsel and legal staff) that may
be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with
94
(i) the Notes, this Agreement and other Loan Documents and the
enforcement thereof, any of the transactions contemplated herein or
therein or the actual or proposed use of the proceeds of the Loans, or
(ii) the actual or alleged presence of Materials of Environmental
Concern on any property of the Borrower or any environmental
proceeding relating in any way to the Borrower,
except to the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of any investigation,
litigation or other proceeding to which the indemnity in this (S) 12.4(d)
applies, the indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Borrower, its
directors, shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. The Borrower
also agrees not to assert any claim against the Agents, any other Lender,
any of their Affiliates, or any of their respective directors, officers,
employees, attorneys and agents, on any theory of liability, for special,
indirect, consequential or punitive damages arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower
contained in this (S) 12.4 shall survive the payment in full of principal
and interest hereunder and under the Notes and the termination of this
Agreement and the Commitments hereunder.
Section 12.5 Right of Set-off. Upon (a) the occurrence and during the
----------------
continuance of any Event of Default and (b) the making of the request specified
by (S) 10.1 to authorize the Administrative Agent to declare, or the
Administrative Agent's declaration of, the Loans to be due and payable pursuant
to the provisions of (S) 10.1, each Lender and each of its Affiliates is
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and otherwise apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such Lender or such Affiliate to or for the credit or the
account of the Borrower against any and all of the Obligations of the Borrower
now or hereafter existing under this Agreement, any Note or Notes held by such
Lender and the other Loan Documents, irrespective of whether such Lender shall
have made any demand under this Agreement or such Note or the other Loan
Documents and although such obligations may be unmatured. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such set-
off and application; provided that the failure to give such notice shall not
--------
affect the validity of such set-off and application. The rights of each Lender
and its Affiliates under this (S) 12.5 are in addition to other rights and
remedies (including other rights of set-off) that such Lender and its Affiliates
may have.
95
Section 12.6 Binding Effect. This Agreement shall become effective when it
--------------
shall have been executed by the Borrower and the Administrative Agent and when
each Lender shall have executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent, each Lender and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of all of the Lenders.
Section 12.7 Assignments and Participations.
------------------------------
(a) Each Lender may assign to one or more banks or other entities
(including any fund, trust or other Person in connection with a
securitization or monetization of the Loans or other indirect raising of
capital) all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment, the Loans owing to
it and/or the Note or Notes held by it); provided that
--------
(i) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender or an Approved Fund
or an assignment of all of a Lender's rights and obligations under
this Agreement, the amount of the Commitment and Loans of the
assigning Lender being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000
and shall be an integral multiple of $500,000. Notwithstanding the
foregoing, within three days of the Closing Date assignments may be
made in an amount not less than $100,000, and such assigned amounts
may be further assigned (in whole but not in part) in the future in
amounts equal to the amount originally assigned;
(ii) the parties to each such assignment shall
(A) execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and
Acceptance, and except for assignments to an Affiliate of the
Lender or an Approved Fund and except for assignments on the
Closing Date or in connection with the initial syndication, a
processing and recordation fee of $500 for each such assignment,
(B) deliver a copy of such Assignment and Acceptance to the
Borrower at the time it delivers a copy to the Administrative
Agent; and
(iii) unless the Borrower and the Administrative Agent shall have
consented thereto, no such assignment shall be made
(A) while any undrawn Commitment is outstanding, except to a
Person that shall have represented that it has a combined capital
and surplus or assets of at least $50,000,000, and
96
(B) except to a Person, other than a commercial bank or
other financial institution or fund, that shall have represented
that such Person is not engaged in, and does not have an
Affiliate that is engaged in, the business of providing PCS
telecommunications services to the public; and
(iv) the parties to such assignment shall, to the extent
applicable, arrange with the Borrower for the execution and delivery
of a substitute Note or Notes replacing any Note or Notes subject to
such assignment.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and thereunder and
(y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case
of an Assignment and Accep tance covering all or the remaining
portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto;
(ii) other than as provided in such Assignment and Acceptance,
such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of
its obligations under this Agreement or any other instrument or
document furnished pursuant hereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred
97
to in (S) 5.4 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance;
(iv) such assignee will, independently and without reliance upon
the Administrative Agent, such assigning Lender or any other Lender
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement and the other Loan
Documents;
(v) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such
powers and discretion under this Agreement and the other Loan
Documents, and to take such action as Collateral Agent under the
Intercreditor Agreement and the Collateral Documents, as are delegated
to the Administrative Agent and the Collateral Agent by the terms
hereof and thereof, together with such powers and discretion as are
reasonably incidental thereto;
(vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement
and the Loan Documents are required to be performed by it as a Lender;
(vii) such assignee makes the representations set forth in
subsection (b)(iv) above; and
(viii) such assignee confirms that it is bound by the
confidentiality provisions set forth in (S) 12.10.
(c) The Administrative Agent shall maintain at its address referred to
in (S) 12.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amount of
the Loans owing to, each Lender from time to time (the "Register"). The
--------
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been timely completed and is substantially in the form of
Exhibit C, together with the processing and recordation fee referred to in
Section 12.7(a)(ii),
(i) accept such Assignment and Acceptance,
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(ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall, to the extent applicable, execute and deliver to the
Assignee in exchange for the surrendered Note or Notes a new Note to the order
of such assignee in an amount equal to the Loans and/or Commitments assumed by
it pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained Loans or Commitments hereunder, a new Note to the order of the
assigning Lender in an amount equal to the Loans and/or Commitments retained by
it hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be substantially in the form of Exhibit C.
(e) Upon the Administrative Agent's acceptance of an Assignment and
Acceptance and recording of the information contained therein in the
Register pursuant to (S) 12.7(d), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent shall
make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between
themselves.
(f) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (other than other entities that are engaged in, or have Affiliates
that are engaged in, the business of providing PCS telecommunications
services to the public) (a "Participant") in all or a portion of such
Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided that (i)
--------
such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the
Administrative Agent and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. No Lender shall transfer or grant any
participation under which the Participants shall have rights to approve any
amendment to or waiver of this Agreement except to the extent that such
amendment or waiver would (i) extend the Maturity Date in which the
Participant is participating, or reduce the rate or extend the time of
payment of interest or fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the Participant's
participation over the amount thereof then in effect (it being understood
that a waiver of any Default or Event of Default shall not constitute a
change in the terms of such participation and that an increase in any
Commitment or Loan shall be permitted without the consent of any
Participant if such Participant's participation is not increased as a
result thereof), or (ii) consent to the
99
assignment by the Borrower of any of its rights and obligations under this
Agreement. A Participant shall not be entitled to receive any greater
payment under (S) 4.2, 4.3 or 12.4(b) than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent.
(g) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 12.7,
disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such
Lender by or on behalf of the Borrower; provided that, prior to any such
--------
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Informa
tion received by it from such Lender, and any Lender that is an investment
fund that invests in bank loans may, without the consent of the
Administrative Agent or the Borrower, pledge all or any portion of its
interest, rights and obligations to any trustee or any other representative
of holders of obligations owed or securities issued by such investment fund
as security for such obligations or securities.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion
of its rights under this Agreement (including the Loans owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
(i) Notwithstanding the foregoing, in the event that any Holder
exercises its option pursuant to the Intercreditor Agreement to exchange
its Senior Secured Note or Senior Secured Notes for Loans hereunder, upon
satisfaction of the requirements of the Note Purchase Agreement and
execution and delivery to the Administrative Agent by such Holder of a
Joinder Agreement, such Holder shall become a party hereto and shall have
the rights and obligations of a Lender hereunder. The amount of such new
Lender's Tranche A Amount (as defined in the Note Purchase Agreement) so
exchanged shall be converted into a Tranche A Loan, and the amount of such
new Lender's Tranche B Amount (as defined in the Note Purchase Agreement)
so exchanged shall be converted into a Tranche B Loan, and such Loans shall
be entered into the Register by the Administrative Agent (and, at the
request of such new Lender, Notes shall be issued in accordance with
Section 2.10). Once a Holder becomes a Lender pursuant to this Section
12.7(i), such new Lender shall not be entitled to exchange its Loans for
Senior Secured Notes.
Section 12.8 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
-------------
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF).
Section 12.9 Execution in Counterparts. This Agreement may be executed in
-------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of
100
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Agreement.
Section 12.10 Confidentiality. So long as this Agreement shall be in
---------------
effect and any Loans or Commitments remain outstanding, neither the
Administrative Agent nor any Lender shall disclose any Confidential Information
to any Person without the consent of the Borrower, other than
(a) to the Administrative Agent's or such Lender's Affiliates and
their officers, directors, employees, agents and advisors and to actual or
prospective assignees and participants, and then only on a confidential
basis,
(b) as required by any law, rule or regulation or judicial process,
(c) as requested or required by any state, Federal or foreign
authority or examiner (or the national association of insurance
commissioners) regulating banks or banking or such Lender or such Lender's
Affiliates, and
(d) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long
as such counterparty or advisor agrees to be bound by the provisions of
this Section 12.10).
The Administrative Agent and the Lenders shall not, and the Borrower shall
not and shall cause its Affiliates not to, disclose the terms of this Agreement,
the other Loan Documents or the transactions contemplated hereby to any Person
without the consent of the other party hereto, except
(i) to the extent that such terms or transactions become
generally available to the public,
(ii) to their respective Affiliates and their officers,
directors, employees, agents, advisors and (in the case of the
Lenders) to actual or prospective assignees and participants, in each
case to the extent that the Administrative Agent, any Lender or the
Borrower deems necessary or appropriate,
(iii) as required by any law, rule or regulation or judicial
process and
(iv) as requested by any state, Federal or foreign regulatory
authority (or the national association of insurance commissioners).
Within a reasonable period of time prior to making any disclosure with respect
to such terms and transactions that is permitted under clause (iii) or (iv) of
the preceding sentence,
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the party proposing, or whose Affiliate is proposing, to make such disclosure
will consult with the other party concerning the need for and scope of any such
disclosure.
Section 12.11 Consent to Jurisdiction. Each of Grand Parent and the
-----------------------
Borrower irrevocably
(a) submits to the jurisdiction of any New York State or Federal court
sitting in New York City and any appellate court from any thereof in any
action or proceeding arising out of or relating to any Loan Document;
(b) agrees that all claims in respect of such action or proceeding may
be heard and determined in such New York State or in such Federal court;
(c) waives, to the fullest extent that it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding;
(d) consents to the service of any and all process in any such action
or proceeding by the mailing of copies of such process to Grand Parent or
the Borrower at its address specified in (S) 12.2; and
(e) irrevocably designates, appoints and empowers, and shall cause
each other Omnipoint Loan Party to designate, appoint and empower, the
Consent Agent, as its designee, appointee and agent to receive, accept and
acknowledge for and on its behalf, and in respect of its properties,
service of any and all legal process, summons, notices and documents which
may be served in any such action or proceeding. If for any reason the
Consent Agent shall cease to be available to act as such, each of Grand
Parent and the Borrower agrees to, and shall cause each other Omnipoint
Loan Party to, designate a new Consent Agent in New York City on the terms
and for the purposes of this provision satisfactory to the Administrative
Agent.
(f) agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by law.
Nothing in this (S) 12.11 shall affect the right of the Administrative Agent or
any Lender to serve legal process in any other manner permitted by law or affect
the right of the Administrative Agent or any Lender to bring any action or
proceeding against the Borrower or its property in the courts of other
jurisdictions.
Section 12.12 Matters Relating to the Administrative Agent. (a) The
--------------------------------------------
Borrower will pay the Administrative Agent a fee in an amount, computed as
provided and payable at the times separately agreed to by the Administrative
Agent and the Borrower. In addition, the Borrower will pay on demand all costs
and expenses of the Administrative Agent (including allocated costs and
reasonable expenses of in-house counsel and legal staff) in connection with the
preparation, execution, delivery, performance, administration, enforcement,
modification and amendment of the Collateral Documents and/or any other Loan
Document
102
at any time, including without limitation the reasonable fees and expenses of
counsel (including reasonable allocated costs and expenses of outside counsel,
in-house counsel and legal staff) and the costs and expenses incurred by the
Administrative Agent in the course of performing its duties and obligations as
Administrative Agent.
Section 12.13 WAIVER OF JURY TRIAL. EACH OF GRAND PARENT, THE BORROWER,
--------------------
THE ADMINISTRATIVE AGENT AND THE LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS, THE
LOANS OR THE ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY LENDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 12.14 Grand Parent Not a Guarantor. The parties hereto acknowledge
----------------------------
and agree that Grand Parent shall be a party hereto solely for the purposes of
providing the covenants and representations expressly specified herein, and
shall not be a guarantor of the Obligations of any Loan Party under the Loan
Documents.
Section 12.15 Loans Not Securities. It is the intent of the parties
--------------------
hereto, and their expectation, that the Loans hereunder (and Notes evidencing
the same, if any) and the lenders' interests therein, are commercial loans and
not securities subject to the Securities Act of 1933, as amended, or any related
federal or state securities laws, statutes or regulations.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as a sealed instrument as of the date first set forth above.
OMNIPOINT COMMUNICATIONS INC., as
Borrower
By
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President Finance
S-1
OMNIPOINT CORPORATION, as a party for
----------------------
the purposes set forth in Section
12.14 of this Agreement
By
------------------------------
Title:
▇-▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇., as Lender
and Syndication Agent
By
------------------------------
Title:
S-3
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P., as
a Lender and Documentation Agent
By
------------------------------
Title:
S-4
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION, as
Lender
By
------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST
& SAVINGS ASSOCIATION, as
Administrative Agent
By
------------------------------
Title:
S-5
NATIONSBANK, N.A., as Lender and
Co-Agent
By
------------------------------
Title:
S-6
CIBC INC., as Lender
By
------------------------------
Title:
▇-▇
▇▇▇▇▇▇▇▇ N.A., as Lender
By
------------------------------
Title:
S-8
BANKBOSTON N.A., as Lender
By
------------------------------
Title:
S-9
CREDIT LYONNAIS NEW YORK
BRANCH, as Lender
By
------------------------------
Title:
S-10
CAPITAL RESEARCH AND MANAGEMENT
COMPANY on behalf of THE BOND
FUND OF AMERICA, INC.
By
------------------------------
Title:
S-11
CAPITAL RESEARCH AND MANAGEMENT
COMPANY on behalf of AMERICAN
VARIABLE INSURANCE SERIES - HIGH-
YIELD BOND FUND
By
------------------------------
Title:
S-12