PARENT GUARANTY AND PLEDGE AGREEMENT
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This PARENT GUARANTY AND PLEDGE AGREEMENT (this "Agreement"), dated as
of January 29, 1999, is made by NEXTEL PARTNERS, INC., a Delaware corporation
(the "Parent"), in favor of BANK OF MONTREAL, as administrative agent (together
with any successor(s) thereto in such capacity, the "Administrative Agent") for
each of the Secured Parties (as defined below).
W I T N E S S E T H:
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WHEREAS, pursuant to a Credit Agreement, dated as of January 29, 1999
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among Nextel Partners Operating Corp., a
Delaware corporation (the "Borrower"), the various financial institutions as
are or may from time to time become parties thereto (the "Lenders"), DLJ
Capital Funding, Inc., as the syndication agent, The Bank of New York, as the
documentation agent and the Administrative Agent, the Lenders and the Issuer
have extended Commitments to make Credit Extensions to, and for the benefit of,
the Borrower;
WHEREAS, as a condition precedent to the making of each Credit
Extension (including the initial Credit Extension) under the Credit Agreement,
the Parent is required to execute and deliver this Agreement;
WHEREAS, the Parent has duly authorized the execution, delivery and
performance of this Agreement; and
WHEREAS, it is in the best interests of the Parent to execute this
Agreement inasmuch as the Parent will derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the Borrower by
the Lenders and the Issuer pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, and in order to induce the Lenders
and the Issuer to make each Credit Extension (including the initial Credit
Extension) to the Borrower pursuant to the Credit Agreement, the Parent agrees,
for the benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Collateral Account" is defined in Section 5.16.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lenders" is defined in the first recital.
"Parent" is defined in the preamble.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all other instruments which are
now being delivered by the Parent to the Administrative Agent or may from time
to time hereafter be delivered by the Parent to the Administrative Agent for
the purpose of pledge under this Agreement or any other Loan Document, and all
proceeds of any of the foregoing.
"Pledged Share Issuer" means the Borrower.
"Pledged Shares" means all shares of capital stock of the Pledged
Share Issuer which are
delivered by the Parent to the Administrative Agent as Pledged Property
hereunder.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, any Lender, the
Issuer and each Agent and each of their respective successors, transferees and
assigns.
"Securities Act" is defined in Section 7.2.
"U.C.C." means the Uniform Commercial Code as in effect from time to
time in the State of New York or, as the context may require, in any other
jurisdiction the laws of which may apply to all or a portion of the Collateral
in which a security interest is granted hereunder.
SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or in
the Credit Agreement or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Agreement, including its
preamble and recitals, with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1. Grant of Security Interest. The Parent hereby assigns,
pledges, hypothecates, charges, mortgages, delivers, and transfers to the
Administrative Agent, for its benefit and the ratable benefit of each of the
Secured Parties, and hereby grants to the Administrative Agent, for its benefit
and the ratable benefit of the Secured Parties, a continuing security interest
in, all of the following, whether now owned or hereafter existing or acquired
by the Parent (the "Collateral"):
(a) all issued and outstanding shares of Capital Stock of the
Pledged Share Issuer;
(b) all other Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter
delivered to the Administrative Agent in connection with this
Agreement;
(d) all Dividends, Distributions, and other payments and rights
with respect to any Pledged Property;
(e) each agreement described on Schedule I hereto (as amended or
modified, an "
Assigned Agreement"), together with (i) all rights and benefits
(whether monetary or otherwise) of the Parent to receive benefits due
and to become due under or pursuant to each Assigned Agreement, (ii)
all rights of the Parent to receive proceeds of any insurance,
indemnity, warranty, guaranty or collateral security with respect to
any Assigned Agreement, (iii) all claims of the Parent for damages
arising out of or for breach or default under any Assigned Agreement
and (iv) all rights of the Parent to terminate any Assigned Agreement,
to perform thereunder and to compel performance and otherwise exercise
all remedies thereunder; and
(f) to the extent not included in the foregoing, all proceeds of
any and all of the foregoing Collateral.
SECTION 2.2. Security for Obligations. This Agreement secures the
payment in full in cash of all monetary Obligations of the Borrower now or
hereafter existing under the Credit Agreement, the Notes and each other Loan
Document to which the Borrower is or may become a party, whether for principal,
interest, costs, fees, expenses, or otherwise, and all obligations of the
Parent and each other Obligor whether now or hereafter existing under this
Agreement and each other Loan Document to which the Parent or such other
Obligor is or may become a party (all such obligations of the Borrower, the
Parent and such other Obligor being the "Secured Obligations").
SECTION 2.3. Delivery of Pledged Property. All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Shares, shall be delivered to and held by or on behalf of the Administrative
Agent pursuant hereto, shall be in suitable form for transfer by delivery, and
shall be accompanied by all necessary instruments of transfer or assignment,
duly executed in blank.
SECTION 2.4. Dividends on Pledged Shares. In the event that any
Dividend is to be paid on any Pledged Share at a time when (x) no Default of
the nature referred to Section 8.1.9 of the Credit Agreement has occurred and
is continuing, and (y) no Event of Default has occurred and is continuing, such
Dividend may be paid directly to and retained by the Parent. If any such
Default or Event of Default has occurred and is continuing, then any such
Dividend shall be paid directly to the Administrative Agent.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This
Agreement shall create a continuing security interest in the Collateral and
shall
(a) remain in full force and effect until payment in full of all
Secured Obligations then due, the termination or expiration of all
Letters of Credit and the termination of all Commitments,
(b) be binding upon the Parent and its successors, transferees
and assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative
Agent and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Commitment, Note, Credit Extension, Hedging
Obligation or other Secured Obligation held by it to any other Person or
entity, and such other Person or entity shall thereupon become vested with all
the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Agreement) or any document relating to such
Hedging Obligation or otherwise, subject, however, to any contrary provisions
in such assignment or transfer, and to the provisions of Section 10.11 and
Article IX of the Credit Agreement. Upon (i) the sale, transfer or other
disposition of Collateral in accordance with the Credit Agreement or (ii) the
payment in full of all Secured Obligations, the termination or expiration of
all Letters of Credit and the termination of all Commitments, the security
interest granted herein shall automatically terminate with respect to (x) such
Collateral (in the case of clause (i)) or (y) all Collateral (in the case of
clause (ii)). Upon any such termination, the Administrative Agent will, at the
Parent's sole expense, deliver to the Parent, without any representations,
warranties or recourse of any kind whatsoever, all certificates and instruments
representing or evidencing all Pledged Shares, together with all other
Collateral held by the Administrative Agent hereunder, and execute and deliver
to the Parent such documents as the Parent shall reasonably request to evidence
such termination.
SECTION 2.6. Postponement of Subrogation. The Parent agrees that it
will not exercise any rights which it may acquire by way of subrogation under
this Agreement, by any payment made hereunder or otherwise, until the prior
payment, in full and in cash, of all Secured Obligations. Any amount paid to
the Parent on account of any such subrogation rights prior to the payment in
full of all Secured Obligations shall be held in trust for the benefit of the
Secured Parties and each holder of a Note and shall immediately be paid to the
Secured Parties and each holder of a Note and credited and applied against the
Secured Obligations, whether matured or unmatured, in accordance with the terms
of the Credit Agreement; provided, however, that if all Secured Obligations
then due have been paid in full and all Commitments have been permanently
terminated, each Secured Party and each holder of a Note agrees that, at the
Parent's request, the Secured Parties and the holders of the Notes, will
execute and deliver to the Parent appropriate documents (without recourse and
without representation or warranty) necessary to evidence the transfer by
subrogation to the Parent of an interest in the Secured Obligations resulting
from such payment by the Parent. In furtherance of the foregoing, for so long
as any Obligations or Commitments remain outstanding, the Parent shall refrain
from taking any action or commencing any proceeding against the Borrower or any
other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the respect of
payments made under this Agreement to any Secured Party or any holder of a
Note.
ARTICLE III
GUARANTY PROVISIONS
SECTION 3.1. Guaranty. The Parent hereby absolutely, unconditionally
and irrevocably
(a) guarantees the full and punctual payment when due, whether
at stated maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all Obligations of the Borrower and each other
Obligor now or hereafter existing under the Credit Agreement, the
Notes, any Letter of Credit and each other Loan Document to which the
Borrower or such other Obligor is or may become a party, whether for
principal, interest, Reimbursement Obligations, fees, expenses or
otherwise (including all such amounts which would become due but for
the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C.ss.362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11
U.S.C.ss.502(b) andss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and each
holder of a Note for any and all costs and expenses (including
reasonable attorney's fees and expenses) incurred by such Secured Party
or such holder, as the case may be, in enforcing any rights under this
Agreement;
provided, however, that the Parent shall be liable under this Agreement
only for the maximum amount of such liability that can be hereby incurred
without rendering this Agreement, as it relates to the Parent, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Agreement constitutes a guaranty of payment when
due and not of collection, and the Parent specifically agrees that it shall not
be necessary or required that any Secured Party or any holder of any Note
exercise any right, assert any claim or demand or enforce any remedy whatsoever
against the Borrower or any other Obligor (or any other Person) before or as a
condition to the obligations of the Parent hereunder.
SECTION 3.2. Acceleration of Guaranty. The Parent agrees that, in the
event of any Default described in clauses (a) through (d) of Section 8.1.9 of
the Credit Agreement, and if such event shall occur at a time when any of the
Obligations of the Borrower and each other Obligor may not then be due and
payable, the Parent agrees that it will pay to the Lenders forthwith the full
amount which would be payable hereunder by the Parent if all such Obligations
were then due and payable.
SECTION 3.3. Guaranty and Security Interest Absolute, etc. The
provisions of this Article III shall in all respects be a continuing, absolute,
unconditional and irrevocable guaranty of payment and shall remain in full
force and effect until all Obligations of the Borrower and each other Obligor
have been paid in full in cash, all Letters of Credit have been terminated or
expired, all Rate Protection Agreements have been terminated, all obligations
of the Parent hereunder shall have been paid in full in cash and all
Commitments shall have terminated. The Parent guarantees that the Obligations
of the Borrower and each other Obligor will be paid strictly in accordance
with the terms of the Credit Agreement, the Notes and each other Loan Document
under which they arise, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party or any holder of any Note with respect thereto. The
liability of the Parent under this Agreement shall be absolute, unconditional
and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any Note or any other Loan Document;
(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right
or remedy against the Borrower, any other Obligor or any other
Person (including any other guarantor) under the provisions of
the Credit Agreement, any Note, any other Loan Document or
otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Secured Obligations;
(c) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Secured Obligations or any other
extension, compromise or renewal of any Secured Obligation;
(d) any reduction, limitation, impairment or termination of any
Secured Obligations for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject
to (and the Parent hereby waives any right to or claim of) any defense
or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Secured Obligations or otherwise;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of the Credit
Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection
of any collateral, or any amendment to or waiver or release or
addition of, or consent to departure from, any other guaranty, held by
any Secured Party or any holder of any Note securing any of the
Secured Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any other Obligor, any surety or any guarantor.
SECTION 3.4. Reinstatement, etc. The Parent agrees that this Agreement
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded
or must otherwise be restored by any Secured Party or any holder of any Note,
upon the insolvency, bankruptcy or reorganization of the Borrower, any other
Obligor or otherwise, all as though such payment had not been made.
SECTION 3.5. Waiver, etc. The Parent hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other Obligor and this Agreement and any
requirement that the Administrative Agent, any other Secured Party or any
holder of any Note protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against the Borrower, any other Obligor or any other Person (including any
other guarantor) or entity or any collateral securing the Obligations of the
Borrower or any other Obligor, as the case may be.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations and Warranties, etc. The Parent
represents and warrants unto each Secured Party, as at the date of each pledge
and delivery hereunder (including each pledge and delivery of Pledged Shares)
by the Parent to the Administrative Agent of any Collateral, as set forth in
this Article.
SECTION 4.1.1. Organization, etc. The Parent (a) is a corporation
validly organized and existing and in good standing under the laws of the State
of its incorporation, is duly qualified to do business and is in good standing
as a foreign corporation under the laws of each jurisdiction where the nature
of its business requires such qualification and (b) has full power and
authority and holds all requisite governmental licenses, permits and other
approvals to (i) enter into and perform its obligations in connection with the
Transaction and under this Agreement and each other Loan Document to which it
is a party and (ii) own and hold under lease its property and to conduct its
business substantially as currently conducted by it.
SECTION 4.1.2. Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by the Parent of this Agreement and the
Parent's participation in the consummation of the Transaction are within the
Parent's corporate powers, have been duly authorized by all necessary corporate
action, and do not contravene the Parent's Organic Documents, contravene any
contractual restriction, law or governmental regulation or court decree or
order binding on or affecting the Parent, or result in, or require the creation
or imposition of, any Lien on any of the Parent's properties, except pursuant
to the terms of a Loan.
SECTION 4.1.3. Validity, etc. This Agreement constitutes the legal,
valid and binding
obligations of the Parent enforceable in accordance with its terms subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
SECTION 4.1.4. Ownership, No Liens, etc. The Parent is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
Liens except any Lien granted pursuant hereto in favor of the Administrative
Agent or Liens permitted pursuant to Section 7.2.3 of the Credit Agreement.
SECTION 4.1.5. Valid Security Interest. The execution and delivery of
this Agreement, together with the delivery of such Collateral to the
Administrative Agent, creates a valid, perfected, first priority security
interest in such Collateral and all proceeds thereof (subject to Section 9-306
of the U.C.C. and Liens permitted pursuant to Section 7.2.3 of the Credit
Agreement), securing the Secured Obligations. Possession by the Administrative
Agent of the Collateral is the only action necessary to perfect or protect such
security interest in the Collateral, subject to Section 9-306 of the U.C.C.
SECTION 4.1.6. As to Pledged Shares. In the case of any Pledged Shares
constituting Collateral, all of such Pledged Shares are duly authorized and
validly issued, fully paid, and non-assessable, and constitute all of the
issued and outstanding shares of capital stock of the Pledged Share Issuer,
except as otherwise permitted by the Credit Agreement. On the Closing Date, the
Parent has no direct Subsidiary other than the Pledged Share Issuer.
SECTION 4.1.7. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any governmental
authority, regulatory body or any other Person is required either
(a) for the pledge by the Parent of any Collateral pursuant to
this Agreement or for the execution, delivery, and performance of this
Agreement by the Parent, or
(b) for the exercise by the Administrative Agent of the voting
or other rights provided for in this Agreement, or, except, with
respect to any Pledged Shares, as may be required in connection with a
disposition of such Pledged Shares by laws affecting the offering and
sale of securities generally or the rules and regulations of the FCC,
the remedies in respect of the Collateral pursuant to this Agreement.
SECTION 4.1.8. Credit Agreement Representations and Warranties. The
representations and warranties contained in Article VI of the Credit Agreement,
insofar as the representations and warranties contained therein are applicable
to the Parent and its properties, are true and correct in all material
respects, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit
Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated
into this Agreement by reference as though specifically set forth in this
Article.
ARTICLE V
COVENANTS
SECTION 5.1. Protect Collateral; Further Assurances, etc. The Parent
will not sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of the Administrative Agent hereunder or as
permitted under the Credit Agreement). The Parent will warrant and defend the
right and title herein granted unto the Administrative Agent in and to the
Collateral (and all right, title, and interest represented by the Collateral)
against the claims and demands of all Persons whomsoever. The Parent agrees
that at any time, and from time to time, at the expense of the Parent, the
Parent will promptly execute and deliver all further instruments, and take all
further action, that may be necessary or desirable, or that the Administrative
Agent may reasonably request, in order to perfect and protect any security
interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral.
SECTION 5.2. Stock Powers, etc. The Parent agrees that all Pledged
Shares (and all other shares of Capital Stock constituting Collateral)
delivered by the Parent pursuant to this Agreement will be accompanied by duly
executed undated blank stock powers, or other equivalent instruments of
transfer acceptable to the Administrative Agent. The Parent will, from time to
time upon the request of the Administrative Agent, promptly deliver to the
Administrative Agent such stock powers, instruments, and similar documents,
satisfactory in form and substance to the Administrative Agent, with respect to
the Collateral as the Administrative Agent may reasonably request and will,
from time to time upon the request of the Administrative Agent after the
occurrence of any Event of Default, promptly transfer any Pledged Shares or
other shares of common stock constituting Collateral into the name of any
nominee designated by the Administrative Agent.
SECTION 5.3. Continuous Pledge. Subject to Section 2.4 and except as
otherwise permitted under the Credit Agreement, the Parent will, at all times,
keep pledged to the Administrative Agent pursuant hereto all Pledged Shares and
all other shares of Capital Stock constituting Collateral, all Dividends and
Distributions with respect thereto, and all other Collateral and other
securities, instruments, proceeds, and rights from time to time received by or
distributable to the Parent in respect of any Collateral and will not permit
the Pledged Share Issuer to issue any Capital Stock which shall not have been
immediately duly pledged hereunder on a first priority perfected basis.
SECTION 5.4. Voting Rights; Dividends, etc. The Parent agrees:
(a) after any (i) Default of the nature referred to in Section
8.1.9 of the Credit Agreement or (ii) an Event of Default shall have
occurred and be continuing, promptly upon receipt thereof by the
Parent and without any request therefor by the Administrative Agent,
to deliver (properly endorsed where required hereby or requested by
the Administrative Agent) to the Administrative Agent all Dividends,
Distributions, all interest, all principal, all other cash payments,
and all proceeds of the Collateral, all of which shall be held by the
Administrative Agent as additional Collateral for use in accordance
with Section 7.4; and
(b) after any Event of Default shall have occurred and be
continuing and the Administrative Agent has notified the Parent of the
Administrative Agent's intention to exercise its voting power under
this clause
(i) the Administrative Agent may exercise (to the exclusion
of the Parent) the voting power and all other incidental rights
of ownership with respect to any Pledged Shares or other shares
of Capital Stock constituting Collateral and the Parent hereby
grants the Administrative Agent an irrevocable proxy,
exercisable under such circumstances, to vote the Pledged Shares
and such other Collateral; and
(ii) promptly to deliver to the Administrative Agent such
additional proxies and other documents as may be necessary to
allow the Administrative Agent to exercise such voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Parent but which the
Parent is then obligated to deliver to the Administrative Agent, shall, until
delivery to the Administrative Agent, be held by the Parent separate and apart
from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 5.4(b), the Parent shall have the exclusive voting power
with respect to any shares of Capital Stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent shall, upon the
written request of the Parent, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by the Parent which are
necessary to allow the Parent to exercise voting power with respect to any such
share of Capital Stock (including any of the Pledged Shares) constituting
Collateral; provided, however, that no vote shall be cast, or consent, waiver,
or ratification given, or action taken by the Parent that would reasonably be
expected to impair any Collateral in any material respect or be inconsistent
with or violate any provision of the Credit Agreement or any other Loan
Document (including this Agreement).
SECTION 5.5. Maintenance of Corporate Existence; Payment of Net Equity
Proceeds. The Parent will cause to be taken all actions necessary to maintain
and preserve at all times its corporate existence. Upon receipt of any Net
Equity Proceeds, the Parent will repay, or cause the
Borrower to repay, the Loans in the amounts, if any, and on the dates required
pursuant to clause (e) of Section 3.1.1 of the Credit Agreement.
SECTION 5.6. Financial Information, Reports, Notices, etc. The Parent
will furnish, or will cause to be furnished, to each Lender and each Agent
promptly after the sending or filing thereof, copies of all reports and
registration statements, if any, which the Parent or any of its Subsidiaries
files with the Securities and Exchange Commission or any national securities
exchange.
SECTION 5.7. Compliance with Laws, etc. The Parent will, and will
cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation):
(a) the maintenance and preservation of its corporate existence
and qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of all
material taxes, assessments and governmental charges imposed upon it
or upon its property except to the extent being contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION 5.8. Business Activities. The Parent will not engage in any
business activity other than in connection with the Parent's continuing
ownership of the issued and outstanding shares of capital stock of the Borrower
and the holding of Investments permitted under Section 5.11.
SECTION 5.9. Indebtedness. The Parent will not create, incur, assume
or suffer to exist or otherwise become or be liable in respect of any
Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Senior Notes; and
(b) Unsecured indebtedness incurred by the Parent in the
ordinary course of business as permitted by Section 5.8.
SECTION 5.10. Liens, etc. The Parent will not create, incur, assume,
or enter into any agreement which by its terms creates, incurs or assumes any
Lien upon any of its assets (including any shares of Capital Stock of the
Borrower), whether now owned or hereafter acquired by the Parent, except any
Lien created by this Agreement; nor will the Parent sell, transfer, contribute
or otherwise dispose of or convey (or grant any options, warrants or other
rights with respect thereto) any shares of Capital Stock of the Borrower
(except pursuant to a transaction in which all Obligations will be
simultaneously discharged in full and all Commitments will be simultaneously
terminated in full).
SECTION 5.11. Investments. The Parent will not make, incur, assume or
suffer to exist any Investment of the Parent in any other Person, except
Investments in the Borrower.
SECTION 5.12. Fixed Assets. The Parent will not make or commit to make
any Capital Expenditure or enter into any arrangement which would give rise to
any Capitalized Lease Liability.
SECTION 5.13. Rental Obligations. The Parent will not enter into any
arrangement which involves the leasing by the Parent from any lessor of any
real or personal property (or any interest therein) other than the lease of
office space.
SECTION 5.14. Consolidation, Merger. The Parent will not wind-up,
liquidate or dissolve, consolidate or amalgamate with, or merge into or with
any other corporation or purchase or otherwise acquire all or any part of the
assets of any Person (or division thereof).
SECTION 5.15. Asset Dispositions, etc. The Parent will not sell,
transfer, lease or otherwise dispose of, or grant to any Person options,
warrants or other rights with respect to any of the Collateral.
SECTION 5.16. No Defaults. The Parent will not, and will not permit
the Borrower or any of its Subsidiaries to, take any action or fail to take any
action if such action or failure to act would result in a Default under the
Credit Agreement.
SECTION 5.17. Undertaking. Immediately upon receipt thereof, the
Parent will transfer to the Borrower all shares of Capital Stock of the Nextel
License Subsidiary contributed by NWIP to the Parent pursuant to the
[Contribution Agreement]. The Parent will cause all such shares of Capital
Stock to be re-issued in the name of the Borrower and delivered to the
Administrative Agent for the purpose of pledge under the Borrower Security and
Pledge Agreement.
SECTION 5.18. Proceeds of Collateral.
(a) After the occurrence and during the continuance of a Default
of the nature set forth in Section 8.1.9 of the Credit Agreement or an
Event of Default, upon written notice by the Administrative Agent to
the Parent pursuant to this Section 5.18, all proceeds of Collateral
received by the Parent shall be delivered in kind for deposit to an
account maintained with the Administrative Agent (the "Collateral
Account"). Proceeds of Collateral received by the Parent shall, prior
to deposit in the Collateral Account, be held separate and apart from,
and not commingled with, any other property and in express trust for
the benefit of the Administrative Agent until delivery thereof is made
to the Collateral Account. Subject to this Section 5.18, the Parent
shall have the right to receive and retain all cash and cash
equivalent proceeds of Collateral (other than Cash Collateral) to be
applied as permitted by the Loan Documents.
(b) The Administrative Agent shall have the right to apply
any amount in the Collateral Account to the payment of any Secured
Obligations which are due and payable or payable upon demand or to the
payment of any Secured Obligations at any time that an Event of
Default shall have occurred and be continuing.
(c) With respect to the Collateral Account, it is hereby
confirmed and agreed that (i) deposits in each Collateral Account are
subject to a security interest as contemplated hereby, (ii) the
Collateral Account shall be under the sole dominion and control of the
Administrative Agent and (iii) the Administrative Agent shall have the
sole right of withdrawal over the Collateral Account.
ARTICLE VI
THE ADMINISTRATIVE AGENT
SECTION 6.1. Administrative Agent Appointed Attorney-in-Fact. The
Parent hereby irrevocably appoints the Administrative Agent the Parent's
attorney-in-fact, with full authority in the place and stead of the Parent and
in the name of the Parent or otherwise, from time to time in the Administrative
Agent's discretion following the occurrence and during the continuance of an
Event of Default, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Agreement, including without limitation:
(a) to ask, demand, collect, xxx for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(a) above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent with respect to any of
the Collateral.
The Parent hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 6.2. Administrative Agent May Perform. If the Parent fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection
therewith shall be payable by the Parent pursuant to Section 7.4.
SECTION 6.3. Administrative Agent Has No Duty. The powers conferred on
the Administrative Agent hereunder are solely to protect its interest (on
behalf of the Secured Parties) in the Collateral and shall not impose any duty
on it to exercise any such powers. Except for reasonable care of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Administrative Agent shall have no duty as to any Collateral or
responsibility for (a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Property, whether or not the Administrative Agent has or is deemed to
have knowledge of such matters, or (b) taking any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Collateral.
SECTION 6.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral if it takes such action for that purpose as the Parent
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VII
REMEDIES
SECTION 7.1. Certain Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Collateral) and also may, without notice
except as specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as the Administrative
Agent may deem commercially reasonable. The Parent agrees that, to the
extent notice of sale shall be required by law, at least ten days'
prior notice to the Parent of the time and place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. The Administrative Agent may adjourn any public or
private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so
adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into the
name of the Administrative Agent or its nominee, with or without
disclosing that such Collateral is subject to the lien and
security interest hereunder,
(ii) notify the parties obligated on any of the Collateral
to make payment to the Administrative Agent of any amount due or
to become due thereunder,
(iii) enforce collection of any of the Collateral by suit
or otherwise, and surrender, release or exchange all or any part
thereof, or compromise or extend or renew for any period
(whether or not longer than the original period) any obligations
of any nature of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings in the
Parent's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the Parent)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the
Collateral.
SECTION 7.2. Securities Laws. If the Administrative Agent shall
determine to exercise its right to sell all or any of the Collateral pursuant
to Section 7.1, the Parent agrees that, upon request of the Administrative
Agent, the Parent will, at its own expense:
(a) execute and deliver, and cause each issuer of the Collateral
contemplated to be sold and the directors and officers thereof to
execute and deliver, all such instruments and documents, and do or
cause to be done all such other acts and things, as may be necessary
or, in the opinion of the Administrative Agent, advisable to register
such Collateral under the provisions of the Securities Act of 1933, as
from time to time amended (the "Securities Act"), and to use its best
efforts to cause the registration statement relating thereto to become
effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and
supplements thereto and to the related prospectus which, in the
opinion of the Administrative Agent, are necessary or advisable, all
in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission
applicable thereto;
(b) use its best efforts to qualify the Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the
Collateral, as requested by the Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as may
be necessary to make such sale of the Collateral or any part thereof
valid and binding and in compliance with applicable law.
The Parent further acknowledges the impossibility of ascertaining the amount of
damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Parent to perform any of the covenants
contained in this Section and, consequently, to the extent permitted under
applicable law, agrees that, if the Parent shall fail to perform any of such
covenants, such covenants shall be specifically enforceable against the Parent.
SECTION 7.3. Compliance with Restrictions. The Parent agrees that in
any sale of any of the Collateral whenever an Event of Default shall have
occurred and be continuing, the Administrative Agent is hereby authorized to
comply with any limitation or restriction in connection with such sale as it
may be advised by counsel is necessary in order to avoid any violation of
applicable law (including compliance with such procedures as may restrict the
number of prospective bidders and purchasers, require that such prospective
bidders and purchasers have certain qualifications, and restrict such
prospective bidders and purchasers to persons who will represent and agree that
they are purchasing for their own account for investment and not with a view to
the distribution or resale of such Collateral), or in order to obtain any
required approval of the sale or of the purchaser by any governmental
regulatory authority or official, and the Parent further agrees that such
compliance shall not result in such sale being considered or deemed not to have
been made in a commercially reasonable manner, nor shall the Administrative
Agent be liable nor accountable to the Parent for any discount allowed by the
reason of the fact that such Collateral is sold in compliance with any such
limitation or restriction.
SECTION 7.4. Application of Proceeds. All cash proceeds received by
the Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Administrative Agent, be held by the Administrative Agent as additional
collateral security for, or then or at any time thereafter be applied (after
payment of any amounts payable to the Administrative Agent pursuant to Section
10.3 of the Credit Agreement and Section 7.5) in whole or in part by the
Administrative Agent against, all or any part of the Secured Obligations in
such order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Secured Obligations, and
the termination of all Commitments, shall be paid over to the Parent or to
whomsoever may be lawfully entitled to
receive such surplus.
SECTION 7.5. Indemnity and Expenses. The Parent hereby indemnifies and
holds harmless the Administrative Agent from and against any and all claims,
losses and liabilities arising out of or resulting from this Agreement
(including enforcement of this Agreement), except claims, losses, or
liabilities resulting from the Administrative Agent's gross negligence or
wilful misconduct. Upon demand, the Parent will pay to the Administrative Agent
the amount of any and all reasonable expenses, including the reasonable fees
and disbursements of its counsel and of any experts and agents, which the
Administrative Agent may incur in connection with:
(a) the administration of this Agreement, the Credit Agreement
and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the sale
of, collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
(d) the failure by the Parent to perform or observe any of the
provisions hereof.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1. Loan Document. This Agreement is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 8.2. Amendments, etc. No amendment to or waiver of any
provision of this Agreement nor consent to any departure by the Parent herefrom
shall in any event be effective unless the same shall be in writing and signed
by the Administrative Agent (on behalf of the Lenders or the Required Lenders,
as the case may be), and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it is given.
SECTION 8.3. Protection of Collateral. The Administrative Agent may
from time to time, at its option, perform any act which the Parent agrees
hereunder to perform and which the Parent shall fail to perform after being
requested in writing so to perform (it being understood that no such request
had been given after the occurrence and during the continuance of an Event of
Default).
SECTION 8.4. Addresses for Notices. All notices and other
communications provided to
any party under this Agreement shall be in writing (including telecopier
communication) and (i) if to the Parent, mailed, telecopied or delivered to it,
at the address of the Borrower specified in the Credit Agreement, and (ii) if
to the Administrative Agent, mailed, telecopied or delivered to it at the
address of the Administrative Agent specified in the Credit Agreement. All such
notices and other communications, when mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any such notice or communication, if
transmitted by telecopier, shall be deemed given when transmitted and
electronically confirmed.
SECTION 8.5. Section Captions. Section captions used in this Agreement
are for convenience of reference only, and shall not affect the construction of
this Agreement.
SECTION 8.6. Severability. Wherever possible each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
SECTION 8.7.Counterparts. This Agreement may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 8.8. Governing Law, Entire Agreement, etc. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
SECTION 8.9. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE PARENT SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY (TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW) IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE PARENT HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE PARENT FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. THE PARENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY
SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE PARENT HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE PARENT HEREBY IRREVOCABLY (TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW) WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT.
SECTION 8.10. Waiver of Jury Trial. THE SECURED PARTIES AND THE PARENT
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
SECURED PARTIES OR THE PARENT. THE PARENT ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE
CREDIT AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
NEXTEL PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President -
General Counsel
BANK OF MONTREAL,
as Administrative Agent
By: /s/ Xxxxx Xxxxxxx
---------------------------
Name: Xxxxx Xxxxxxx
Title: Director
