[EXECUTION COPY]
U.S. $275,000,000
CREDIT AGREEMENT,
dated as of January 29, 1999
among
NEXTEL PARTNERS OPERATING CORP.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
THE BANK OF NEW YORK,
as the Documentation Agent for the Lenders,
and
BANK OF MONTREAL, as the
Administrative Agent for the Lenders.
ARRANGED BY
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms 3
1.2. Use of Defined Terms 35
1.3. Cross-References 35
1.4. Accounting and Financial Determinations 36
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments 36
2.1.1. Term Loan Commitments 36
2.1.2. Revolving Loan Commitment 36
2.1.3. Additional Commitments 37
2.1.4. Letter of Credit Commitment 38
2.1.5. Lenders Not Permitted or Required to Make Loans 38
2.1.6. Issuer Not Required to Issue Letters of Credit 38
2.2. Reduction of Commitment Amounts 38
2.2.1. Optional 38
2.2.2. Mandatory 39
2.3. Borrowing Procedure and Funding Maintenance 39
2.4. Continuation and Conversion Elections 40
2.5. Funding 40
2.6. Issuance Procedures 41
2.6.1. Other Lenders' Participation 41
2.6.2. Disbursements; Conversion to Revolving Loans 42
2.6.3. Reimbursement 42
2.6.4. Deemed Disbursements 43
2.6.5. Nature of Reimbursement Obligations 43
2.7. Register; Notes 44
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TABLE OF CONTENTS
(continued)
SECTION PAGE
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application 45
3.1.1. Repayments and Prepayments 45
3.1.2. Application 49
3.2. Interest Provisions 49
3.2.1. Rates 49
3.2.2. Post-Maturity Rates 50
3.2.3. Payment Dates 50
3.3. Fees 50
3.3.1. Commitment Fee 51
3.3.2. Administrative Agent Fee 51
3.3.3. Letter of Credit Fee 51
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful 51
4.2. Deposits Unavailable 52
4.3. Increased LIBO Rate Loan Costs, etc. 52
4.4. Funding Losses 52
4.5. Increased Capital Costs 53
4.6. Taxes 53
4.7. Payments, Computations, etc. 55
4.8. Sharing of Payments 56
4.9. Setoff 56
4.10. Mitigation 57
4.11. Replacement of Lenders 57
5.1. Initial Credit Extension 58
5.1.1. Resolutions, etc. 58
5.1.2. Delivery of Notes 58
5.1.3. Transaction Documents 58
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TABLE OF CONTENTS
(continued)
SECTION PAGE
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1.4. Closing Date Certificate 58
5.1.5. Subsidiary Guaranty 59
5.1.6. Parent Guaranty and Pledge Agreement 59
5.1.7. Security Agreements 59
5.1.8. Assignment Agreement and Consents to Assignment 60
5.1.9. Licenses 60
5.1.10. Consents 60
5.1.11. Capitalization and Structure 61
5.1.12. Vendor Contracts 61
5.1.13. Financial Information, etc. 61
5.1.14. Business Plan 61
5.1.15. Nextel Contribution, Motorola Contribution, Investors Contribution,
Borrower Equity Contribution and Senior Discount Note Issuance 61
5.1.16. Litigation 61
5.1.17. Material Adverse Change 62
5.1.18. Reliance Letters 62
5.1.19. Opinions of Counsel 62
5.1.20. Insurance 62
5.1.21. NWIP Undertaking 62
5.1.22. Cash Account; Cash Collateral Agreement 62
5.1.23. Realco Agreement; Management Agreement 63
5.1.24. Closing Fees, Expenses, etc. 63
5.1.25. Satisfactory Legal Form 63
5.2. All Credit Extensions 63
5.2.1. Compliance with Warranties, No Default, etc. 63
5.2.2. Credit Extension Request 64
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc. 64
6.2. Due Authorization, Non-Contravention, etc. 64
6.3. Government Approval, Regulation, etc. 65
6.4. Validity, etc. 65
6.5. Financial Information 65
6.6. No Material Adverse Effect 65
6.7. Litigation, Labor Controversies, etc. 66
6.8. Subsidiaries 66
6.9. Ownership of Properties 66
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TABLE OF CONTENTS
(continued)
SECTION PAGE
6.10. Taxes 66
6.11. Pension and Welfare Plans 66
6.12. Environmental Warranties 67
6.13. Regulations U and X 68
6.14. Licenses; License Transfer 68
6.15. FCC Compliance 68
6.16. Accuracy of Information 69
6.17. Solvency 69
6.18. Year 2000 70
6.19. Credit Facility 70
6.20. Interests in Real Property Sufficient for Conduct of Business 70
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants 70
7.1.1. Financial Information, Reports, Notices, etc. 70
7.1.2. Compliance with Laws, etc. 72
7.1.3. Maintenance of Properties 72
7.1.4. Insurance 73
7.1.5. Books and Records 73
7.1.6. Environmental Covenant 73
7.1.7. Future Subsidiaries 74
7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property 75
7.1.9. Use of Proceeds, etc. 76
7.1.10. Hedging Obligations 76
7.1.11. Undertaking 76
7.1.12. Landlord Consents 76
7.1.13. Year 2000 76
7.1.14. Termination Statements 77
7.2. Negative Covenants 77
7.2.1. Business Activities 77
7.2.2. Indebtedness 77
7.2.3. Liens 78
7.2.4. Financial Covenants 80
7.2.5. Investments 85
7.2.6. Restricted Payments, etc. 86
7.2.7. Capital Expenditures, etc. 87
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TABLE OF CONTENTS
(continued)
SECTION PAGE
7.2.8 Consolidation, Merger, etc. 88
7.2.9 Asset Dispositions, etc. 88
7.2.10 Modification of Certain Agreements 89
7.2.11 Transactions with Affiliates 89
7.2.12 Negative Pledges, Restrictive Agreements, etc. 90
7.2.13 Liabilities of License Subsidiary 90
ARTICLE VIII
EVENTS OF DEFAULT
8.1 Listing of Events of Default 90
8.1.1 Non-Payment of Obligations 90
8.1.2 Breach of Warranty 91
8.1.3 Non-Performance of Certain Covenants and Obligations 91
8.1.4 Non-Performance of Other Covenants and Obligations 91
8.1.5 Default on Other Indebtedness 91
8.1.6 Judgments 91
8.1.7 Pension Plans 91
8.1.8 Control of the Borrower 92
8.1.9 Bankruptcy, Insolvency, etc. 92
8.1.10. Impairment of Security, etc. 93
8.1.11. Licenses 93
8.1.12. Rights to Use 93
8.1.13 Subscription and Contribution Agreement 93
8.1.14 License Transfer 93
8.1.15 Nextel Operating Agreements 93
8.2 Action if Bankruptcy 94
8.3 Action if Other Event of Default 94
ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1. Actions 94
9.2. Funding Reliance, etc 95
9.3. Exculpation 95
9.4. Successor 96
9.5. Credit Extensions by Each Agent and Issuer 96
9.6. Credit Decisions 97
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TABLE OF CONTENTS
(continued)
SECTION PAGE
9.7 Copies, etc. 97
9.8 The Syndication Agent, the Documentation Agent and the Administrative
Agent 97
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc 97
10.2. Notices 99
10.3. Payment of Costs and Expenses 99
10.4. Indemnification 99
10.5. Survival 101
10.6. Severability 101
10.7. Headings 101
10.8. Execution in Counterparts, Effectiveness, etc 101
10.9. Governing Law; Entire Agreement 101
10.10. Successors and Assigns 101
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes 102
10.11.1. Assignments 102
10.11.2. Participations 104
10.12. Confidentiality 104
10.13. Other Transactions 105
10.14. Forum Selection and Consent to Jurisdiction 105
10.15. Waiver of Jury Trial 106
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TABLE OF CONTENTS
(continued)
SCHEDULES:
Schedule I - Disclosure Schedule
Schedule II - Percentages and Administrative Information
Schedule III - Licenses/Network Area
Schedule IV - Investors
EXHIBITS:
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Term Note
Exhibit B-1 - Form of Borrowing Request
Exhibit B-2 - Form of Issuance Request
Exhibit C - Form of Continuation/Conversation Notice
Exhibit D - Form of Closing Date Certificate
Exhibit E - Form of Compliance Certificate
Exhibit F-1 - Form of Borrower Security and Pledge Agreement
Exhibit F-2 - Form of Subsidiary Security and Pledge Agreement
Exhibit G - Form of Parent Guaranty and Pledge Agreement
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of NWIP Undertaking
Exhibit J - Form of Lender Assignment Agreement
Exhibit K - Form of Cash Collateral Agreement
Exhibit L - Form of Assignment Agreement
Exhibit M-1 - Form of Realco Agreement
Exhibit M-2 - Form of Management Agreement
Exhibit N-1 - Form of New York Counsel Opinion
Exhibit N-2 - Form of FCC Counsel Opinion
Exhibit N-3 - Form of Local Counsel Opinion
vii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of January 29, 1999, among NEXTEL
PARTNERS OPERATING CORP., a Delaware corporation (the "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as the syndication agent (the
"Syndication Agent") for the Lenders, THE BANK OF NEW YORK, as the documentation
agent (the "Documentation Agent") for the Lenders, BANK OF MONTREAL ("BOM"), as
the administrative agent (the "Administrative Agent") for the Lenders, and
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, as Lead Arranger (the
Syndication Agent and the Administrative Agent are sometimes referred to herein
as the "Agents" and each as an "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower is a wholly-owned Subsidiary of Nextel Partners,
Inc., a Delaware corporation (the "Parent");
WHEREAS, the Borrower intends to construct and operate a digital
wireless communications network (the "Network") utilizing (a) specialized mobile
radio ("SMR") licenses presently owned by an indirect, wholly-owned subsidiary
(the "Nextel License Subsidiary") of Nextel Communications, Inc., a Delaware
corporation ("Nextel"), (b) the Nextel brand name, (c) Nextel's national
switching infrastructure and (d) the "integrated Dispatch Enhanced Network" or
"iDEN" technology developed by Motorola, Inc., a Delaware corporation
("Motorola"), to serve the markets listed on Schedule III;
WHEREAS, subsequent to the Closing Date (such capitalized term, and
other terms used herein, to have the meanings provided in Section 1.1), the
License Transfer shall be consummated;
WHEREAS, in order to accomplish the build-out of the Network (the
"Network Build-out"), the following capital-raising transactions shall occur
prior to or contemporaneously with the making of the Initial Credit Extensions
hereunder:
(a) the Parent shall have received an equity contribution having an
aggregate implied value of approximately $131,000,000 from the issuance
of its Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock to Nextel WIP Corp., a Delaware corporation ("NWIP")
and an indirect, wholly-owned Subsidiary of Nextel, in exchange for (i)
the contribution by NWIP to the Nextel License Subsidiary of the
Licenses listed on Schedule III, (ii) the commitment and obligation of
Nextel and NWIP to effect the License Transfer and (iii) the execution
and delivery by NWIP of certain agreements relating to the operation of
the Network (collectively, the "Nextel Contribution");
(b) the Parent shall have received a credit in the aggregate
amount of $18,400,000 which may be used, dollar-for-dollar, against the
future purchase price of Motorola's infrastructure equipment to be used
in connection with the Network Build-out from the issuance of its
Series A Preferred Stock to Motorola having an implied value of
approximately $18,400,000 (the "Motorola Contribution");
(c) the Parent shall have received an initial cash equity
contribution of approximately $52,133,333 from the issuance of its
Series A Preferred Stock to certain investors listed on Schedule IV
hereto (collectively, the "Investors"), together with irrevocable
binding commitments from the Investors to make subsequent cash equity
contributions to the Parent as set forth in the Subscription and
Contribution Agreement (the "Investors Contribution");
(d) the Parent shall have received gross cash proceeds of
$400,000,000 from the issuance of its 14% senior unsecured discount
notes due 2009 (the "Senior Discount Notes", with the issuance thereof
being herein referred to as the "Senior Discount Notes Issuance"); and
(e) all cash and non-cash proceeds received by the Parent from
the Nextel Contribution, the Motorola Contribution, the Investors
Contribution and the Senior Discount Notes Issuance shall be
contributed by the Parent as an equity contribution to the Borrower
(the "Borrower Equity Contribution"; the Nextel Contribution, the
Motorola Contribution, the Investors Contribution, the Senior Discount
Notes Issuance and the Borrower Equity Contribution and all
transactions related thereto, including those described in the recitals
hereto and the financing described herein, being collectively referred
to as the "Transaction");
WHEREAS, in connection with the Transaction and in order to finance the
capital expenditures related to Network Build-out and the ongoing working
capital and general corporate needs of the Borrower and its Subsidiaries, the
Borrower desires to obtain the following financing facilities from the Lenders:
(a) a Term Loan Commitment pursuant to which Borrowings of
Term Loans will be made to the Borrower in a single Borrowing on the
Closing Date in a maximum, original principal amount of $175,000,000;
(b) a Revolving Loan Commitment (to include availability for
Revolving Loans and Letters of Credit) pursuant to which Borrowings of
Revolving Loans, in a maximum aggregate principal amount (together with
all Letter of Credit Outstandings) not to exceed $100,000,000, will be
made to the Borrower from time to time on and subsequent to the Closing
Date but prior to the Revolving Loan Commitment Termination Date; and
(c) a Letter of Credit Commitment pursuant to which the Issuer
will issue Letters of Credit for the account of the Borrower from time
to time on and subsequent to the
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Closing Date but prior to the Revolving Loan Commitment Termination
Date in a maximum aggregate Stated Amount at any one time outstanding
not to exceed $10,000,000 (provided that the aggregate outstanding
principal amount of Revolving Loans and Letter of Credit Outstandings
at any time shall not exceed the then existing Revolving Loan
Commitment Amount); and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments, make such Loans to the Borrower and issue (or participate in) such
Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE
DEFINITIONS AND ACCOUNTING TERMS
SECTION Defined Terms. The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals, shall, except
where the context otherwise requires, have the following meanings (such meanings
to be equally applicable to the singular and plural forms thereof):
"Adjusted EBITDA" means, for any applicable period, the sum of (i)
Consolidated EBITDA for such period plus (ii) the aggregate amount deducted in
determining Consolidated Net Income for such period in respect of sales,
marketing and advertising expenses.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the Capital Stock (on a fully diluted basis) of such
Person having ordinary voting power for the election of directors or managing
general partners, or (ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent and the
Syndication Agent.
"Aggregate Service Revenue" means, for any period, all service
revenues, including subscriber revenues, toll revenues, roaming revenues,
wholesale service revenues and long-distance revenues, of the Borrower and its
Subsidiaries for such period.
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"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Agreement in Support of Charter Obligations" means the Agreement in
Support of Charter Obligations, dated as of January 29, 1999, between NWIP and
the Parent, as amended, supplemented, amended and restated or otherwise modified
from time to time in accordance with Section 7.2.10.
"Agreement Specifying Obligations of, and Limiting Liability and
Recourse to, Nextel" means the Agreement Specifying Obligations of, and Limiting
Liability and Recourse to, Nextel, dated as of January 29, 1999, among Nextel,
the Parent and the Borrower, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with Section 7.2.10
"Alternate Base Rate" means, for any day and with respect to all Base
Rate Loans, the higher of: (a) 0.50% per annum above the latest Federal Funds
Rate and (b) the rate of interest in effect for such day as most recently
publicly announced or established by the Administrative Agent in Chicago,
Illinois as its "prime rate". (The "prime 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 prime rate established or
announced by the Administrative Agent shall take effect at the opening of
business on the day of such establishment or announcement.
"Analog Management Agreement" means the Analog Management Agreement,
dated as of January 29, 1999, by and between the Borrower and NWIP, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Annualized Adjusted EBITDA" means, for the period ending on the last
day of any Fiscal Quarter, the product of (a) Adjusted EBITDA for the two
consecutive Fiscal Quarters ending on such last day, multiplied by (b) two.
"Annualized EBITDA" means, for the period ending on the last day of any
Fiscal Quarter, the product of Consolidated EBITDA for the two consecutive
Fiscal Quarters ending on such last day, multiplied by (b) two.
"Applicable Commitment Fee" means a fee which shall accrue at the
applicable rate per annum set forth below based upon the percentage of the
Revolving Loan Commitments which are unused as of the time of determination:
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Undrawn Commitments
as a Percentage of the
Revolving Loan Commitment Commitment Fee
------------------------- --------------
greater than or equal to 67% 2.00%
greater than or equal to 33%
and less than 67% 1.25%
less than 33% 0.75%
"Applicable Margin" means at all times during the applicable periods
set forth below:
(a) with respect to the unpaid principal amount of each Term
Loan maintained as a (i) Base Rate Loan, 3.75% per annum and (ii) LIBO
Rate Loan, 4.75% per annum;
(b) from the Closing Date through (but excluding) the date
upon which the first Compliance Certificate demonstrating that
Consolidated EBITDA for the most recent Fiscal Quarter for which a
Compliance Certificate has been delivered by the Borrower to the
Administrative Agent pursuant to clause (c) of Section 7.1.1 is
positive, with respect to the unpaid principal amount of each Revolving
Loan maintained as a (i) Base Rate Loan, 3.25% per annum and (ii) LIBO
Rate Loan, 4.25% per annum; and
(c) at all times from and after the date of such delivery of
the Compliance Certificate described in clause (b) above, with respect
to the unpaid principal amount of each Revolving Loan, by reference to
the applicable Leverage Ratio and at the applicable percentage per
annum set forth below under the caption "Applicable Margin for Base
Rate Loans" or "Applicable Margin for LIBO Rate Loans", as the case may
be:
Applicable Margin For Revolving Loans
Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
greater than 10.0:1 3.00% 4.00%
greater than 8.0:1 and less
than or equal to 10.0:1 2.75% 3.75%
greater than 7.0:1 and less
than or equal to 8.0:1 2.50% 3.50%
greater than 6.0:1 and less
than or equal to 7.0:1 2.25% 3.25%
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greater than 5.0:1 and less
than or equal to 6.0:1 1.75% 2.75%
less than or equal to 5.0:1 1.25% 2.25%
The Leverage Ratio used to compute the Applicable Margin for Revolving Loans for
any day shall be the Leverage Ratio set forth in the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent pursuant to
clause (c) of Section 7.1.1. Changes in the Applicable Margin for Revolving
Loans resulting from a change in the Leverage Ratio shall become effective upon
delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to clause (c) of Section 7.1.1. If the Borrower shall fail
to deliver a Compliance Certificate within the number of days after the end of
any Fiscal Quarter as required pursuant to clause (c) of Section 7.1.1 (without
giving effect to any grace period), the Applicable Margin for Revolving Loans
from and including the first day after the date on which such Compliance
Certificate was required to be delivered to, but not including the date the
Borrower delivers to the Administrative Agent an appropriately completed
Compliance Certificate shall conclusively equal the highest Applicable Margin
for Revolving Loans set forth above.
"Approved Affiliate Agreements" means, collectively, the Transaction
Documents and agreements in respect of transactions with Affiliates which have
been approved by a majority of disinterested directors of the board of directors
of the Borrower pursuant to clause (c) of the proviso to Section 7.2.11.
"Asset Transfer and Reimbursement Agreement" means the Asset Transfer
and Reimbursement Agreement, dated as of January 29, 1999, by and between the
Borrower and NWIP, as amended, supplemented, amended and restated and otherwise
modified from time to time in accordance with Section 7.2.10.
"Assignee Lender" is defined in Section 10.11.1.
"Assignment Agreement" means the Assignment Agreement made by the
Borrower, the Parent and Realco in favor of the Administrative Agent pursuant to
Section 5.1.8, including the consents to assignment executed and delivered by
the parties to the Nextel Operating Agreements, substantially in the form of
Exhibit L hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Assignor Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the Agents
and the Lenders pursuant to Section 5.1.1.
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"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BOM" is defined in the preamble.
"Borrower" is defined in the preamble.
"Borrower Equity Contribution" is defined in clause (e) of the fourth
recital.
"Borrower Security and Pledge Agreement" means the Security and Pledge
Agreement executed and delivered by an Authorized Officer of the Borrower
pursuant to Section 5.1.7, substantially in the form of Exhibit F-1 hereto, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York City or Chicago, Illinois, and, with respect to Borrowings of, Interest
Periods with respect to, payments of principal and interest in respect of, and
conversions of Base Rate Loans into, LIBO Rate Loans, any day on which dealings
in Dollars are carried on in the London interbank market.
"Capital Expenditures" means for any period, the sum, without
duplication, of (i) the aggregate amount of all expenditures of the Borrower and
its Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures (excluding
expenditures made in connection with the replacement or restoration of assets to
the extent such replacement or restoration is financed with insurance proceeds
paid on account of the loss of or damage to the assets so replaced or restored
or awards of compensation arising from the taking by condemnation or eminent
domain of the assets so replaced), and (ii) the aggregate amount of the
principal component of all Capitalized Lease Liabilities for any capitalized
leases entered into during such period by the Borrower and its Subsidiaries.
"Capitalized Lease Liabilities" means, without duplication, all
monetary obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease
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prior to the first date upon which such lease may be terminated by the lessee
without payment of a penalty.
"Capital Stock" means, with respect to any Person, (i) any and all
shares, interests, participations, rights or other equivalents of or interests
in (however designated) corporate or capital stock, including, without
limitation, shares of preferred or preference stock of such Person, (ii) all
partnership interests (whether general or limited) in such Person, (iii) all
membership interests or limited liability company interests in such Person, and
(iv) all other equity or ownership interests in such Person of any other type.
"Cash Account" means an account of the Borrower established and
maintained pursuant to the Borrower Security and Pledge Agreement into which the
Required Balance shall be deposited in cash or Cash Equivalent Investments.
"Cash Collateral Agreement" means the Cash Collateral Agreement
executed and delivered by the Borrower pursuant to Section 5.1.22, substantially
in the form of Exhibit K hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued directly by the United States of America
or any agency thereof or guaranteed by the United States of America or
any agency thereof;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by (i) a corporation (other than an
Affiliate of any Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated at least A-l by
S&P or P-l by Xxxxx'x, or (ii) any Lender (or its holding company);
(c) any time deposit, certificate of deposit or bankers
acceptance, maturing not more than one year after such time, maintained
with or issued by either (i) a commercial banking institution
(including U.S. branches of foreign banking institutions) that is a
member of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000, or (ii)
any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either Xxxxx'x or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) repurchase agreements (i) which, are entered into with any
entity referred to in clause (b) or (c) above or any other financial
institution whose unsecured long-term debt (or the unsecured long-term
debt of whose holding company) is rated at least A- or
-8-
better by S&P or Baa1 or better by Xxxxx'x and maturing not more than
one year after such time, (ii) which, in the event treated as a secured
loan, would be secured by a fully perfected security interest in
securities of the type referred to in clause (a) above and (iii)
involving securities which have a market value at the time of such
repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such counterparty entity with whom such
repurchase agreement has been entered into; or
(f) any money market or similar fund the assets of which are
comprised at least 90% of any of the items specified in clauses (a)
through (d) above and as to which withdrawals are permitted at least
every 90 days.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Borrower or any of its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means (i) the failure of the Parent at any time to
own, free and clear of all Liens and encumbrances (other than Liens permitted to
exist under clauses (a), (e) and (h) of Section 7.2.3), all right, title and
interest in 100% of the Capital Stock of the Borrower; (ii) the failure of
Nextel at any time to own, free and clear of all Liens and encumbrances (other
than Liens arising under the Shareholders' Agreement) all right, title and
interest in at least 90% (on a fully diluted basis) of the Capital Stock of the
Parent (other than the Series B Preferred Stock of the Parent) owned by Nextel
on the Closing Date; or (iii) the acquisition of ownership, directly or
indirectly, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof), other than the DLJMB Entities,
Nextel and Madison Dearborn, of a number of shares of Capital Stock of the
Parent sufficient to have and exercise voting power for the election of a
majority of the board of directors of the Parent.
"Closing Date" means the Business Day on which the initial Credit
Extension is made, not to be later than January 29, 1999.
"Closing Date Certificate" means a certificate of an Authorized Officer
of the Borrower substantially in the form of Exhibit D hereto, delivered
pursuant to Section 5.1.4.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, a Lender's Term Loan
Commitment, Revolving Loan Commitment or Letter of Credit Commitment.
-9-
"Commitment Amount" means, as the context may require, the Term Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount.
"Commitment Letter" means the commitment letter, dated December 30,
1998, among the Parent, the Lead Arranger and the Syndication Agent including
all annexes and exhibits thereto.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date or the Term Loan Commitment
Termination Date.
"Commitment Termination Event" means (i) the occurrence of any Event of
Default described in clauses (a) through (d) of Section 8.1.9 with respect to
any Obligor (excluding Subsidiaries that are not Material Subsidiaries), or (ii)
the occurrence and continuance of any other Event of Default and either (x) the
declaration of the Loans to be due and payable pursuant to Section 8.3, or (y)
in the absence of such declaration, the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the Borrower that the
Commitments have been terminated.
"Committed Equity" means irrevocable binding commitments to purchase
Preferred Stock of the Parent pursuant to the Subscription and Contribution
Agreement.
"Communications Act" means the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same may be
in effect from time to time.
"Compliance Certificate" means a certificate duly completed and
executed by the president, chief executive officer, treasurer, assistant
treasurer, assistant secretary, controller or chief financial Authorized Officer
of the Borrower, substantially in the form of Exhibit E hereto.
"Consolidated Cash Interest Expense" means, for any period on a
consolidated basis for the Parent and its Subsidiaries, (a) Consolidated
Interest Expense for such period minus (b) the aggregate amount of pay-in-kind
or accreted Consolidated Interest Expense for such period not involving any
payment in cash.
"Consolidated EBITDA" means, for any applicable period, the sum
(without duplication) for the Parent and its Subsidiaries on a consolidated
basis of
(a) Consolidated Net Income,
plus
(b) the amount deducted in determining Consolidated Net Income
representing non-cash charges, including depreciation and amortization
and any non-cash expenses
-10-
incurred by the Parent representing a valuation charge for annual
awards of management stock options or as a result of the vesting of
restricted stock,
plus
(c) the amount deducted in determining Consolidated Net Income
representing income or franchise taxes (whether paid or deferred),
plus
(d) the amount deducted in determining Consolidated Net Income
representing Consolidated Interest Expense,
plus
(e) to the extent received by the Parent or any of its
Subsidiaries, cash dividends from Investments in Permitted Joint
Ventures,
minus
(f) Restricted Payments of the type referred to in clause (b)
of Section 7.2.6 made during such period.
"Consolidated Interest Expense" means, for any applicable period, the
aggregate consolidated interest expense (whether cash or non-cash) of the Parent
and its Subsidiaries for such applicable period, as determined in accordance
with GAAP, including the portion of any payments made in respect of Capitalized
Lease Liabilities allocable to interest expense and the aggregate amount of
pay-in-kind or accreted Consolidated Interest Expense for such period not
involving a payment in cash.
"Consolidated Net Income" means, for any period, the net income of the
Parent and its Subsidiaries for such period on a consolidated basis (including
cash income received by the Parent and its Subsidiaries from Investments in
Permitted Joint Ventures), excluding extraordinary or non-recurring gains,
credits, losses and expenses.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of Capital Stock of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.
-11-
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Contributed Equity" means at any time or for any period, the sum of
(a) the aggregate amount of cash which shall have been received by the Parent
and contributed to the Borrower prior to such time or during such period as
consideration for the issuance of Preferred Stock of the Parent pursuant to the
Subscription and Contribution Agreements, (b) cash proceeds from the sale by the
Parent of the Senior Notes, (c) $131,000,000, the agreed value of the Nextel
Contribution, (d) $18,400,000, the agreed value of the Motorola Contribution and
(e) the fair market value as reasonably determined by the board of directors of
the Borrower in good faith of any non-cash assets or items contributed to the
Borrower as a capital contribution or in exchange for Capital Stock of the
Borrower.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA, or for purposes of Section 412, Section 414(m) or
Section 414(o) of the Code.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit C to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Covered POPs" means the aggregate number of POPs within each market or
geographical area specified on Schedule III for which facilities in commercial
operation owned by the Borrower or its Subsidiaries have achieved substantial
completion.
"Credit Extension" means, as the context may require, (i) the making of
a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued Letter of Credit,
by the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means, on any date, without duplication, all assets
which, in accordance with GAAP, would be included as current assets on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date as
current assets (excluding, however, amounts due and to become due from
Affiliates of the Borrower which have arisen from transactions which are neither
arm's-length and in the ordinary course of its business nor pursuant to an
Approved Affiliate Agreement).
-12-
"Current Liabilities" means, on any date, without duplication, all
amounts which, in accordance with GAAP, would be included as current liabilities
on a consolidated balance sheet of the Borrower and its Subsidiaries at such
date, excluding current maturities of Indebtedness.
"Debt" means, without duplication, the outstanding principal amount of
all Indebtedness of the Parent and its Subsidiaries that is of the type referred
to in clause (a), (b), (c) or (e) of the definition of "Indebtedness" and any
Contingent Liability in respect of any of the foregoing.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would, unless cured or
waived, constitute an Event of Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"DLJ" is defined in the preamble.
"DLJMB Entities" means DLJ Merchant Banking Partners II, L.P., DLJ
Merchant Banking II, Inc., DLJ Capital Corp., Sprout Capital VIII, L.P. and any
other Affiliates of DLJ.
"Documentation Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Documentation Agent by the predecessor Documentation Agent.
"Dollar" and the sign "$" mean lawful money of the United States.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the excess (if
any), of
(a) Consolidated EBITDA for such applicable period;
-13-
over
(b) the sum, without duplication (for such applicable period)
of
(i) Consolidated Cash Interest Expense (net of
interest income) for such applicable period;
plus
(ii) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal
amount of the Term Loans or any other funded Debt (including
the principal component of any Capitalized Lease Liabilities)
and mandatory prepayments of the principal amount of the
Revolving Loans pursuant to clause (g) of Section 3.1.1 in
connection with a reduction of the Revolving Loan Commitment
Amount, in each case for such applicable period;
plus
(iii) all federal, state, local and foreign income
and franchise taxes actually paid in cash by the Parent and
its Subsidiaries and Restricted Payments made by the Borrower
pursuant to clause (b) of Section 7.2.6 for such applicable
period;
plus
(iv) Capital Expenditures actually made or committed
to be made during such applicable period pursuant to clause
(a) of Section 7.2.7 (excluding Capital Expenditures
constituting Capitalized Lease Liabilities and by way of the
incurrence of Indebtedness permitted pursuant to clause (b) of
Section 7.2.2 to a vendor of any assets permitted to be
acquired pursuant to Section 7.2.7 to finance the acquisition
of such assets);
plus
(v) the amount of the net increase (or minus, in the
case of a net decrease) of Current Assets, other than cash and
Cash Equivalent Investments, over Current Liabilities of the
Parent and its Subsidiaries for such applicable period;
plus
(vi) Investments permitted and actually made pursuant
to clauses (d), (f), and (h) of Section 7.2.5 during such
applicable period.
"Excluded Equity Proceeds" means any proceeds received by the Parent or
the Borrower from the sale or issuance by such Person of its Capital Stock or
any warrants or options in
-14-
respect of any such Capital Stock or the exercise of any such warrants or
options, which proceeds are received pursuant to any such sale, issuance or
exercise constituting or resulting from (i) capital contributions to, or Capital
Stock issuances by, the Parent or the Borrower (exclusive of any such
contribution or issuance resulting from a Public Offering or a widely
distributed private offering exempted from the registration requirements of
Section 5 of the Securities Act of 1933, as amended), (ii) the sale of any
Capital Stock of the Parent or the Borrower to any officer, director or employee
of such Person or any of its Subsidiaries pursuant to any subscription
agreement, incentive plan or similar arrangement with any officer, employee or
director of such Person or any of its Subsidiaries, provided such proceeds do
not exceed $5,000,000 in the aggregate, (iii) any loan made by the Parent, the
Borrower or any of their respective Subsidiaries pursuant to clause (f) of
Section 7.2.5, (iv) any Preferred Stock Issuance or (v) the Investors
Contribution.
"FCC" means the Federal Communication Commission, or any other similar
or successor agency of the federal government administering the Communications
Act.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) 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
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated December 30,
1998, among the Lead Arranger and the Syndication Agent.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31 of any calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately prior Fiscal Quarters of
(a) Annualized EBITDA as of such Fiscal Quarter
-15-
to
(b) the sum (without duplication) of
(i) Consolidated Cash Interest Expenses (net of
interest income) for all such Fiscal Quarters;
plus
(ii) all scheduled payments of principal of the Term
Loans and other funded Debt during all such Fiscal Quarters,
exclusive, however, of any payment in respect of principal of
the Revolving Loans, other than any such payment to the extent
resulting from a permanent decrease of the Revolving Loan
Commitment Amount;
plus
(iii) all federal, state, local and foreign income
and franchise taxes actually paid in cash by the Parent and
its Subsidiaries during such period, net (without duplication)
of all cash tax refunds received during such period; provided,
that, after giving effect to any such deductions for tax
refunds, the amount calculated pursuant to this clause (iii)
for any applicable period shall not be less than zero.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
-16-
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(i) which is of a "going concern" or similar nature, (ii) which relates to the
limited scope of examination of matters relevant to such financial statement, or
(iii) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would require an
adjustment to such item the effect of which would be to cause such Obligor to be
in default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or for
the deferred purchase price of property or services (exclusive of
deferred purchase price arrangements in the nature of open or other
accounts payable owed to suppliers on normal terms in connection with
the purchase of goods and services in the ordinary course of business)
and all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, all Indebtedness of the types referred to in clauses (a)
through (d) above (excluding prepaid
-17-
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including Indebtedness arising under
conditional sales or other title retention agreements), whether or not
such Indebtedness shall have been assumed by such Person or is limited
in recourse; provided, however, that, to the extent such Indebtedness
is limited in recourse to the assets securing such Indebtedness, the
amount of such Indebtedness shall be limited to the fair market value
of such assets; and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Infrastructure Equipment Purchase Agreement" means the Infrastructure
Equipment Purchase Agreement, dated as of January 29, 1999, between Motorola and
the Borrower, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with Section 7.2.10.
"Initial POPs" means, as of the Closing Date, 4,500,000 POPs.
"Interest Period" means, as to any LIBO Rate Loan, the period
commencing on the Borrowing date of such Loan or on the date on which the Loan
is converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three, six or, if available to all Lenders, in the Administrative Agent's
reasonable determination, nine or twelve months thereafter as selected by the
Borrower in its Borrowing Request or its Conversion/Continuation Notice;
provided, however, that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(iii) no Interest Period for any Loan shall extend beyond the
Stated Maturity Date for such Loan;
-18-
(iv) no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of such Term Loans unless the aggregate
principal amount of such Term Loans represented by Base Rate Loans, or
by LIBO Rate Loans having Interest Periods that will expire on or
before such date, equals or exceeds the amount of such principal
payment; and
(v) there shall be no more than ten Interest Periods in effect
at any one time.
"Interim Management Agreement" means the Interim Management Agreement,
dated as of January 29, 1999, by and between the Parent and NWIP, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Investment" means, relative to any Person, (i) any loan or advance
made by such Person to any other Person (excluding commission, travel,
relocation and similar advances to officers, directors and employees made in the
ordinary course of business), or (ii) any investment, contribution or similar
transfer made by such Person for purposes of acquiring or maintaining any
ownership or similar interest in another Person or a business of another Person
(whether through the ownership or acquisition of Capital Stock, revenues or
profits or otherwise, including by way of merger, consolidation or otherwise).
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
"Investors" is defined in clause (c) of the fourth recital.
"Investors Contribution" is defined in clause (c) of the fourth
recital.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, in substantially the
form of Exhibit B-2 attached hereto.
"Issuer" means the Administrative Agent, in its capacity as Issuer of
Letters of Credit and any other Lender as may be designated by the Borrower (and
consented to by the Administrative Agent and such Lender, such consent by the
Administrative Agent not to be unreasonably withheld) in its capacity as Issuer
of Letters of Credit.
"Itemized Executive" means any of the following individuals: (i) Xxxx
Xxxxxxx, (ii) Xxxx Xxxxxxxx, (iii) Xxxxx Xxxxxx, (iv) Xxxxx Aas, (v) Xxxxx
Xxxxxxxxx, and (vi) Xxxx Xxxxxxx.
"Joint Venture Agreement" means the Joint Venture Agreement, dated as
of January 29, 1999, by and among the Parent, the Borrower and NWIP, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
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"Lead Arranger" means Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, a Delaware corporation.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.4.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.4 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligation of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $10,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit (whether or not the
conditions to drawing thereunder could be satisfied on such date),
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"Leverage Ratio" means, at the end of any Fiscal Quarter, the ratio of
(a) Total Debt outstanding at such time;
to
(b) Annualized EBITDA for the period ending on the last day of
such Fiscal Quarter.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest per annum (rounded upwards, if necessary, to the nearest
1/100th of 1%) for deposits in Dollars, if any, for a period equal to the
relevant Interest Period which appears on Telerate page 3750 (or any successor
page thereto) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period. If such a rate does not appear on
Telerate Page 3750 (or any successor page), the LIBO Rate shall be the rate of
interest per
-20-
annum determined by the Administrative Agent to be the arithmetic mean (rounded
upwards, if necessary, to the nearest 1/100th of 1%) of the rates of interest
per annum at which Dollar deposits in the approximate amount of the Loan to be
made or continued as, or converted into, a LIBO Rate Loan by the Administrative
Agent and having a maturity comparable to such Interest Period would be offered
to the Administrative Agent in the London interbank market at its request at
approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, the rate of interest per annum (rounded upwards to the next 1/100th of
1%) determined by the Administrative Agent as follows:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule II hereto or designated in the Lender Assignment
Agreement pursuant to which such Lender became a Lender hereunder or such other
office of a Lender as shall be so designated from time to time by notice from
such Lender to the Borrower and the Administrative Agent, which shall be making
or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the F.R.S.
Board).
"License" means any mobile telephone, cellular telephone, two-way
dispatch, paging and alphanumeric short-messaging license, authorization,
certificate of compliance, franchise, approval or permit issued by the FCC in
connection with the construction or operation of the Network in the markets
listed on Schedule III.
-21-
"License Exchange" means (a) any exchange of Licenses between the
Borrower and Nextel or any Affiliate of Nextel made in accordance with Article 4
of the Joint Venture Agreement, (b) any exchange of Licenses between the Parent
or any of its Subsidiaries and Nextel or any Affiliate of Nextel which the Board
of Directors of the Parent or such Subsidiary determines in good faith, on the
date of such exchange, are, in the aggregate, of at least equivalent value, or
(c) any transaction pursuant to which the Parent or any of its Subsidiaries
transfers certain of its Licenses to Nextel or any Affiliate of Nextel in
exchange for Licenses from a third party, the purchase price for which was
funded by Nextel or any Affiliate of Nextel.
"License Subsidiary" means Nextel WIP License Corp., a Delaware
corporation, and/or any other wholly-owned Subsidiary of the Borrower designated
as a License Subsidiary by notice to the Agents; provided, however, that (i)
such Subsidiary has no obligations or liabilities other than under the
Communications Act and taxes incurred in the ordinary course in order for it to
continue to maintain its existence and (ii) all the outstanding Capital Stock of
such Subsidiary is pledged to the Administrative Agent for the benefit of the
Lenders in accordance with the terms of the Borrower Security and Pledge
Agreement.
"License Transfer" means each of the following events or conditions
shall have been certified in writing by the Borrower to the Agents to have
occurred or been satisfied, in each case pursuant to documentation reasonably
satisfactory to the Agents, and the Borrower shall have certified such
occurrence or satisfaction in writing to the Agents and the Lenders:
(a) all of the issued and outstanding shares of Capital Stock
of the Nextel License Subsidiary shall have been unconditionally
transferred and assigned, free and clear of all Liens, to the Borrower
or a License Subsidiary, and the Administrative Agent shall have
received certificates evidencing all of the issued and outstanding
shares of Capital Stock of the Nextel License Subsidiary which shall be
pledged pursuant to the Borrower Security and Pledge Agreement,
together with undated stock powers duly executed in blank;
(b) all consents and approvals necessary or required to be
obtained from the FCC or any other governmental authority or Person in
connection with such transfer and assignment of the Capital Stock of
the Nextel License Subsidiary shall have been received and are in full
force and effect;
(c) the Borrower shall represent and warrant to the Agents and
each Lender that as of the time of such transfer and assignment,
subject to Item 6.15 ("Schedule of Exceptions") to the Disclosure
Schedule, the Nextel License Subsidiary shall hold, free and clear of
all Liens and encumbrances, all of the Licenses necessary for the
Borrower to construct, install and develop the Network, and to operate
those portions of the Network for which development has been completed,
in the markets listed on Schedule III;
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(d) the Nextel License Subsidiary shall not be or have become
liable or otherwise obligated in respect of any Indebtedness (including
any Capitalized Lease Liability) other than Indebtedness which shall
have been approved in writing by the Required Lenders;
(e) the Nextel License Subsidiary shall not have created,
incurred, assumed, or entered into any agreement which by its terms
creates, incurs or assumes any Lien upon any of its assets;
(f) no Event of Default shall have then occurred and be
continuing; or if an Event of Default shall have occurred and be
continuing, the Administrative Agent, on behalf of the Lenders, shall
not have commenced to exercise the rights and remedies provided in the
Borrower Security and Pledge Agreement in respect thereof; and
(g) all consents and approvals necessary or, in the opinion of
the Administrative Agent, desirable to be obtained from any
governmental authority or regulatory body of the State of Hawaii in
order to perfect the security interest of the Administrative Agent in
Collateral owned by NPCR, Inc. shall have been received and shall be in
full force and effect.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
"Loan" means, as the context may require, a Revolving Loan or a Term
Loan, of any type.
"Loan Document" means this Agreement, the Notes, the Letters of Credit,
each Rate Protection Agreement under which the counterparty to such agreement is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate of a Lender relating to Hedging Obligations of the Borrower or
any of its Subsidiaries, each Borrowing Request, each Issuance Request, the Fee
Letter, the Subsidiary Guaranty, each Mortgage (upon execution and delivery
thereof), each Security Document, the Realco Agreement, the Management Agreement
and each other agreement, document or instrument delivered in connection with
this Agreement or any other Loan Document, whether or not specifically mentioned
herein or therein.
"Madison Dearborn" means Madison Dearborn Capital Partners II L.P. and
any of its Affiliates.
"Management Agreement" means the agreement executed and delivered by
Authorized Officers of each of the Borrower and Realco pursuant to Section
5.1.23, substantially in the form
-23-
of Exhibit M-2 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Master Site Lease Agreement" means the Master Site Lease Agreement,
dated as of January 29, 1999, between NWIP and the Parent, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business, properties or prospects of
the Borrower and its Subsidiaries, taken as a whole, (b) a material impairment
of the legal ability or the legal right or power of the Borrower or any other
Obligor to perform its respective material obligations under the Loan Documents
to which it is or will be a party, or (c) an impairment of the validity or
enforceability of, or a material impairment of the rights, remedies or benefits
available to the Issuer, the Agents, the Lead Arranger or the Lenders under,
this Agreement or any other Loan Document.
"Material Obligor" means an Obligor that is either the Borrower, the
Parent or a Material Subsidiary.
"Material Subsidiary" means any direct or indirect Subsidiary of the
Parent which, at the date of determination, together with its Subsidiaries, (i)
contributed more than 5% of the consolidated revenues of the Parent and its
Subsidiaries for the most recent Fiscal Year of the Parent or (ii) owned more
than 5% of the consolidated assets of the Parent and its Subsidiaries as of the
end of such Fiscal Year, all as set forth on the most recently available
consolidated financial statements of the Parent for such Fiscal Year; provided,
that any Subsidiary of the Parent which holds a License, including the License
Subsidiary, shall at all times constitute a Material Subsidiary.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust executed
and delivered pursuant to the terms of this Agreement, including pursuant to
clause (b) of Section 7.1.8, in form and substance reasonably satisfactory to
the Agents.
"Motorola" is defined in the second recital.
"Motorola Contribution" is defined in clause (b) of the fourth recital.
"Net Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the Borrower
or any of its Subsidiaries in connection therewith, but excluding any proceeds
or awards required to be paid to a creditor (other than the Lenders) which holds
a first-priority Lien permitted by Section 7.2.3 on the property which is the
subject of such Casualty Event and net of reasonable and customary fees and
expenses (including reasonable attorneys fees and expenses) actually incurred in
connection
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therewith and net of taxes and other governmental costs and expenses actually
paid or estimated by the Borrower (in good faith) to be payable in cash in
connection therewith.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Borrower or any of its Subsidiaries of any Debt (other than Debt
incurred as part of the Transaction and other Debt permitted by Section 7.2.2),
the excess of:
(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from such incurrence, sale or issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such incurrence, sale or issuance.
"Net Disposition Proceeds" means, with respect to any sale, transfer or
other disposition of any assets of the Borrower or any of its Subsidiaries
(other than transfers made as part of the Transaction and other sales permitted
pursuant to clause (a) of Section 7.2.9), including any sale, transfer or other
disposition of any Capital Stock of any such Subsidiary, the excess of
(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from any such sale, transfer or other disposition and
any cash payments received in respect of promissory notes or other
non-cash consideration delivered to the Borrower or such Subsidiary in
respect thereof,
less
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and charges,
in each case actually incurred in connection with such sale, transfer
or other disposition, (ii) all taxes and other governmental costs and
expenses actually paid or estimated by the Borrower (in good faith) to
be payable in cash in connection with such sale, transfer or other
disposition, (iii) payments made by the Borrower or any of its
Subsidiaries to retire Indebtedness (other than the Loans) of the
Borrower or any of its Subsidiaries that is secured by a first-priority
Lien permitted by Section 7.2.3 on the property which is the subject of
such sale, transfer or other disposition, (iv) in the case of any sale,
transfer or other disposition of any Capital Stock of any Subsidiary of
the Borrower, amounts payable to minority equity holders of such
Subsidiary, if any, and (v) appropriate amounts provided or to be
provided by the Borrower or any of its Subsidiaries as a reserve, in
accordance with GAAP, with respect to any liabilities associated with
such sale, transfer or other disposition;
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provided, however, that if, (i) after the payment of all taxes with respect to
such sale, transfer or other disposition, the amount of estimated taxes, if any,
pursuant to clause (b)(ii) above exceeded the tax amount actually paid in cash
in respect of such sale, transfer or other disposition or (ii) after providing
reserves against liabilities associated with such sale, transfer or other
disposition, the amount of estimated reserves, if any, provided pursuant to
clause (b)(v) above exceeded the amount of reserves actually drawn in cash in
respect of such sale, transfer or other disposition, the aggregate amount of all
such excess shall be immediately payable, pursuant to clause (d) of Section
3.1.1, as Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by the
Borrower or Parent to any Person of any of its Capital Stock or any warrants or
options with respect to its Capital Stock or the exercise of any such warrants
or options after the Closing Date (exclusive of any proceeds constituting
Excluded Equity Proceeds), the excess of:
(a) the gross cash proceeds received by Parent, the Borrower
and the Borrower's Subsidiaries from such sale, exercise or issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage, accounting and other professional
fees, sales commissions and disbursements and all other reasonable
fees, expenses and charges, in each case actually incurred in
connection with such sale or issuance.
"Network" is defined in the second recital.
"Network Build-out" is defined in the fourth recital.
"Net Worth" means the consolidated net worth of the Borrower and its
Subsidiaries.
"Nextel" is defined in the second recital.
"Nextel Contribution" is defined in clause (a) of the fourth recital.
"Nextel License Subsidiary" is defined in the second recital.
"Nextel Operating Agreements" means, collectively, the Joint Venture
Agreement, the Interim Management Agreement, the Analog Management Agreement,
the Trademark License Agreement, the Asset Transfer and Reimbursement Agreement,
the Transition Services Agreement, the Switch Sharing Agreement, the Roaming
Agreement, the Master Site Lease Agreement, the Infrastructure Equipment
Purchase Agreement, the Agreement in Support of Charter Obligations, the
Subscriber Purchase and Distribution Agreement, the Agreement Specifying
Obligations of, and Limiting Liability and Recourse to, Nextel and all other
contracts, documents and agreements contemplated thereunder.
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"Non-U.S. Lender" means any Lender (including each Assignee Lender)
that is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) an estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"Non-U.S. Subsidiary" means a Subsidiary of the Borrower that is not a
U.S. Subsidiary.
"Note" means, as the context may require, a Revolving Note or a Term
Note.
"NWIP" is defined in clause (a) of the fourth recital.
"NWIP Undertaking" means the undertaking agreement executed and
delivered by an Authorized Officer of NWIP pursuant to Section 5.1.21,
substantially in the form of Exhibit I hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, any Rate Protection Agreement (but only if designated as an
Obligation by the Borrower), the Notes, each Letter of Credit and each other
Loan Document.
"Obligor" means the Parent, the Borrower, the Nextel License
Subsidiary, any License Subsidiary, Realco or any other Person (other than any
Agent, the Lead Arranger, or any Lender) obligated under any Loan Document.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements to which such Obligor is a party applicable to any of its
authorized shares of Capital Stock.
"Parent" is defined in the first recital.
"Parent Guaranty and Pledge Agreement" means the Guaranty and Pledge
Agreement executed and delivered by an Authorized Officer of the Parent pursuant
to Section 5.1.6, substantially in the form of Exhibit G hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit A to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
-27-
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, has or within the prior six years has had any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term Loans or Revolving Loans, as the case may be, as set forth
opposite its name on Schedule II hereto under the applicable column heading or
set forth in Lender Assignment Agreement(s) under the applicable column heading,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 10.11. A Lender shall not have any Commitment to
make Revolving Loans or Term Loans (as the case may be) if its percentage under
the respective column heading is zero.
"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of the Borrower or a Subsidiary of the
Borrower pursuant to the relevant Security Agreement, substantially in the form
of Exhibit E to the relevant Security Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Permitted Joint Venture" means any joint venture entered into by the
Parent or any of its Subsidiaries with a third party (a) for the purpose of
financing the acquisition or lease of telecommunications towers for use in the
markets listed on Schedule III or the other markets that the Borrower has the
option to include in the "Territory" (pursuant to and as defined in the Joint
Venture Agreement); provided, that the aggregate fair market value of all assets
contributed by the Parent or any of its Subsidiaries to any joint venture
pursuant to this clause (a) shall not exceed $15,000,000 (as determined in good
faith by the board of directors of the Parent) or (b) in which that the Parent
or any of its Subsidiaries (i) is responsible for the managerial control of such
joint venture, (ii) owns at least 40% of the outstanding Capital Stock of such
joint venture and (iii) such joint venture, together with all other Permitted
Joint Ventures described in this clause (b), does not cover or service more than
10% of the POPs (computed by including only a percentage of the total POPs equal
to the Parent's percentage ownership in that joint venture) covered by the
Parent at the date of determination (as determined in good faith by the board of
directors of the Parent).
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
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"POPs" means population equivalents as estimated by the Parent as of
1997 by extrapolation from the 1990 U.S. Census and other publicly available
information.
"Preferred Stock" means, collectively, the Series A Preferred Stock,
the Series B Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock.
"Preferred Stock Issuance" means any issuance of Preferred Stock of the
Parent in connection with the Nextel Contribution, the Motorola Contribution or
the Investors Contribution.
"Pro Forma Balance Sheet" is defined in Section 5.1.13.
"Purchasers" is defined in the first recital.
"Quarterly Payment Date" means the last day of each of January, April,
July and October, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing with April 30, 1999.
"Rate Protection Agreement" means, collectively, any interest rate
swap, cap, collar or similar agreement entered into by the Borrower pursuant to
the terms of this Agreement under which the counterparty to such agreement is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate of a Lender.
"Realco" means Nextel WIP Lease Corp., a Delaware corporation and a
wholly-owned Subsidiary of the Borrower, that (i) has no obligations or
liabilities other than as permitted by the Realco Agreement and (ii) has pledged
all of its outstanding Capital Stock to the Administrative Agent for the benefit
of the Lenders in accordance with the terms of the Borrower Security and Pledge
Agreement.
"Realco Agreement" means the agreement executed and delivered by
Authorized Officers of each of the Borrower and Realco pursuant to Section
5.1.23, substantially in the form of Exhibit M-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Register" is defined in clause (b) of Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Fund" means, with respect to any Lender which is a fund that
invests in loans, any other fund that invests in loans and is controlled by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Release" means a "release", as such term is defined in CERCLA.
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"Replacement Lender" is defined in Section 4.11.
"Replacement Notice" is defined in Section 4.11.
"Required Balance" means an amount equal to the lesser of (a)
$275,000,000 (as such amount may be increased through additional Term Loan
Commitments and/or Revolving Loan Commitments pursuant to Section 2.1.3) and (b)
the aggregate outstanding principal amount of all Loans and Letter of Credit
Outstandings.
"Required Lenders" means, at any time, (i) prior to the date of the
making of the initial Credit Extension hereunder, Lenders having at least 51% of
the sum of the Revolving Loan Commitments and the Term Loan Commitments; and
(ii) on and after the date of the initial Credit Extension, Lenders holding at
least 51% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Restated Certification of Incorporation" means the restated
Certificate of Incorporation of the Parent, as filed with the Secretary of State
of Delaware on January 28, 1999.
"Restricted Payments" is defined in Section 7.2.6.
"Restricted Stock Purchase Agreement" means the Restricted Stock
Purchase Agreement, dated as of November 20, 1998, as amended by Amendment No. 1
thereto, dated January 29, 1999, between the Parent and the purchasers named
therein, as amended, supplemented, amended and restated and otherwise modified
from time to time in accordance with Section 7.2.10.
"Revolving Loan" is defined in Section 2.1.2.
"Revolving Loan Commitment" is defined in Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $100,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of (i)
January 29, 1999 if the Term Loans have not been made on or prior to such date,
(ii) the eighth anniversary of the Closing Date, (iii) the date on which the
Revolving Loan Commitment Amount is terminated in full or reduced to zero
pursuant to Section 2.2, and (iv) the date on which any Commitment Termination
Event occurs.
"Revolving Note" means a promissory note of the Borrower payable to any
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the
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Borrower to such Lender resulting from outstanding Revolving Loans, and also
means all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Roaming Agreement" means the Roaming Agreement, dated as of January
29, 1999, by and between the Borrower and NWIP, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
Section 7.2.10.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
"Security Agreement" means, as the context may require, the Borrower
Security and Pledge Agreement or the Subsidiary Security and Pledge Agreement.
"Security Documents" means, collectively, the Parent Guaranty and
Pledge Agreement, each Security Agreement, each Copyright Security Agreement,
each Patent Security Agreement, each Trademark Security Agreement, each
Mortgage, the Cash Collateral Agreement, the Assignment Agreement (including
each Consent to Assignment executed and delivered by the parties to the Nextel
Operating Agreements) and each other security agreement or other instrument or
document executed and delivered pursuant to Sections 7.1.7 and 7.1.8 to secure
the Obligations, or any portion thereof, of any Obligor.
"Senior Debt" means all Indebtedness of the Parent and its Subsidiaries
on a consolidated basis, other than any Indebtedness in respect of the Senior
Notes.
"Senior Discount Notes" is defined in clause (d) of the fourth recital.
"Senior Discount Notes Issuance" is defined in clause (d) of the fourth
recital.
"Senior Notes" means the Senior Discount Notes and any additional
pay-in-kind notes subsequently issued from time to time under the Senior Notes
Indenture.
"Senior Notes Documents" means the Senior Notes Indenture and each of
the other documents and agreements relating to the issuance by the Parent of the
Senior Notes, in each case as in effect on the date hereof and as the same may
be amended, supplemented, amended and restated or otherwise modified from time
to time in accordance with Section 7.2.10.
"Senior Notes Indenture" means the Indenture entered into by and
between the Parent and The Bank of New York, as trustee thereunder, as in effect
on the date hereof and as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with Section
7.2.10.
"Series A Preferred Stock" means the shares of Series A Convertible
Preferred Stock, par value $0.001 per share, of the Parent having those rights
and preferences set forth in the Restated Certificate of Incorporation for
Series A Preferred Stock issued to the investors identified in Schedule A to the
Subscription and Contribution Agreement on the Closing Date.
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"Series B Preferred Stock" means the shares of Series B Preferred
Stock, par value $0.001 per share, of the Parent having those rights and
preferences set forth in the Restated Certificate of Incorporation for Series B
Preferred Stock issued to NWIP on the Closing Date.
"Series C Preferred Stock" means the shares of Series C Convertible
Preferred Stock, par value $0.001 per share, of the Parent having those rights
and preferences set forth in the Restated Certificate of Incorporation for
Series C Preferred Stock issued to NWIP on the Closing Date.
"Series D Preferred Stock" means the shares of Series D Convertible
Preferred Stock, par value $0.001 per share, of the Parent having those rights
and preferences set forth in the Restated Certificate of Incorporation for
Series D Preferred Stock issued to NWIP on the Closing Date.
"Shareholders' Agreement" means the Shareholders' Agreement, dated as
of January 29, 1999, among the Parent, NWIP, DLJ Merchant Banking Partners II,
L.P., Eagle River Investments, LLC, Motorola, and certain other investors listed
on the signature pages thereof, as amended, supplemented, amended and restated
and otherwise modified from time to time in accordance with Section 7.2.10.
"SMR" is defined in the second recital.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means (i) in the case of any Revolving Loan, the
eighth anniversary of the Closing Date, and (ii) in the case of any Term Loan,
the ninth anniversary of the Closing Date or, in the case of any such day that
is not a Business Day, the first Business Day following such day.
"Subscriber Purchase and Distribution Agreement" means the Subscriber
Purchase and Distribution Agreement, dated as of January 29, 1999, between
Motorola and the Borrower, as
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amended, supplemented, amended and restated or otherwise modified from time to
time in accordance with Section 7.2.10.
"Subscriber Units" means, as at any date, the aggregate number of
digital subscriber units of the Borrower and its Subsidiaries in service to
paying customers, determined as at such date in a manner consistent with the
methodology used in reporting the number of such units on the reports filed by
the Borrower with the Securities and Exchange Commission (or, prior to the time
that the Borrower files such reports, the methodology used by Nextel in such
reports), multiplied by a fraction, the numerator of which is the aggregate
amount of accounts receivable of the Borrower and its Subsidiaries arising from
such subscribers net of the aggregate amount of such accounts receivable that
are more than 90 days past due, and the denominator of which is such aggregate
amount of accounts receivable.
"Subscription and Contribution Agreement" means the Subscription and
Contribution Agreement, dated as of January 29, 1999, among the Parent and the
other investors parties thereto, as amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with Section 7.2.10.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Subsidiary Guarantor" means, on the Closing Date, each U.S. Subsidiary
of the Borrower, and thereafter, each U.S. Subsidiary of the Borrower that is
required, pursuant to clause (a) of Section 7.1.7, to execute and deliver a
supplement to the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty executed and delivered by an
Authorized Officer of each Subsidiary Guarantor pursuant to Section 5.1.5,
substantially in the form of Exhibit H hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Subsidiary Security and Pledge Agreement" means the Security and
Pledge Agreement executed and delivered by an Authorized Officer of certain U.S.
Subsidiaries of the Borrower pursuant to Section 5.1.7, substantially in the
form of Exhibit F-2 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Switch Sharing Agreement" means the Switch Sharing Agreement, dated as
of January 29, 1999, by and between the Borrower and NWIP, as amended,
supplemented,
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amended and restated and otherwise modified from time to time in accordance with
Section 7.2.10.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent by the predecessor Syndication Agent and the Borrower.
"Taxes" is defined in Section 4.6.
"Term Loan" is defined in Section 2.1.1.
"Term Loan Commitment" is defined in Section 2.1.1.
"Term Loan Commitment Amount" means $175,000,000.
"Term Loan Commitment Termination Date" means the earliest of (i)
January 29, 1999, if the Term Loans have not been made on or prior to such date;
(ii) the Closing Date (immediately after the making of the Term Loans on such
date); and (iii) the date on which any Commitment Termination Event occurs.
"Term Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term Loans, and also means all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Total Capital" means, with respect to the Parent and its Subsidiaries,
at any date, (a) the sum, without duplication, of (i) Debt outstanding on such
date plus (ii) Contributed Equity (less the portion of Contributed Equity
resulting from the proceeds of the Senior Discount Notes Issuance contributed to
the Borrower in connection with the Borrower Equity Contribution) on such date
plus (iii) Committed Equity of each Person having an irrevocable binding
commitment to purchase Preferred Stock of the Parent (but only to the extent
there is no default in respect of such Person's commitment, which default has
occurred and is continuing for a period of more than 30 days) on such date less
(b) the difference, which shall not be less than zero, of (x) the agreed value
of all Licenses contributed by the Parent or any of its Subsidiaries in
connection with Investments in Permitted Joint Ventures and (y) any return of
capital in cash or any Licenses (at a value reasonably determined by the Agents)
from such Permitted Joint Venture.
"Total Debt" means, at any time, all Debt of the Parent and its
Subsidiaries as determined on a consolidated basis.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the then effective Revolving
Loan Commitment Amount
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or, in the event that the Revolving Loan Commitment is terminated, the
outstanding principal amount of all Revolving Loans and Letter of Credit
Outstandings.
"Trademark License Agreement" means the Trademark License Agreement,
dated as of January 29, 1999, between the Borrower and NWIP, as amended,
supplemented, amended and restated and otherwise modified from time to time in
accordance with Section 7.2.10.
"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit B to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Transaction" is defined in clause (e) of the fourth recital.
"Transaction Documents" means each of Nextel Operating Agreements, the
Subscription and Contribution Agreement, the Restricted Stock Purchase
Agreement, the Shareholders' Agreement, the Restated Certificate of
Incorporation and all other material agreements, documents, instruments,
certificates, filings, consents, approvals, board of directors resolutions and
opinions furnished to or in connection with the Nextel Contribution, the
Motorola Contribution, the Investors Contribution, the Senior Discount Note
Issuance and the Borrower Equity Contribution and the transactions contemplated
thereby and hereby, each as amended, supplemented, amended and restated or
otherwise modified from time to time as permitted in accordance with the terms
hereof or any other Loan Document.
"Transition Services Agreement" means the Transition Services
Agreement, dated as of January 29, 1999, between the Parent, the Borrower and
NWIP, as amended, supplemented amended and restated and otherwise modified from
time to time in accordance with Section 7.2.10.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary of the Borrower that is
incorporated or organized in or under the laws of the United States or any state
thereof.
"Waiver" means any agreement in favor of the Administrative Agent for
the benefit of the Lenders and each Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
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"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA and to which the Borrower has any liability.
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (including all rights and
options to purchase such Capital Stock) of which, other than directors'
qualifying shares, are owned, beneficially and of record, by such Person and/or
one or more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Issuance Request, Continuation/Conversion Notice,
Loan Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made in accordance with
generally accepted accounting principles ("GAAP") as in effect as of December
31, 1997, but all financial statements required to be delivered hereunder or
thereunder shall be prepared in accordance with GAAP as in effect from time to
time.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Sections 2.1.5, 2.1.6 and Article V),
(a) each Lender severally agrees to make Loans pursuant to the
Commitments as described in this Section 2.1; and
(b) the Issuer agrees that it will issue Letters of Credit
pursuant to Section 2.1.4, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to Section 2.6.1.
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SECTION 2.1.1. Term Loan Commitments. Subject to compliance by the
Borrower with the terms of Sections 2.1.5, 5.1 and 5.2, on (but solely on) the
Closing Date (which shall be a Business Day), each Lender that has a Percentage
in excess of zero of the Term Loan Commitment will make loans (relative to such
Lender, its "Term Loans") to the Borrower equal to such Lender's Percentage of
the aggregate amount of the Borrowing or Borrowings of Term Loans requested by
the Borrower to be made on the Closing Date (with the commitment of each such
Lender described in this Section 2.1.1 is herein referred to as its "Term Loan
Commitment". No amounts repaid or prepaid with respect to Term Loans may be
reborrowed.
SECTION 2.1.2. Revolving Loan Commitment. Subject to compliance by the
Borrower with the terms of Sections 2.1.5, 5.1 and 5.2, from time to time on any
Business Day occurring concurrently with (or after) the making of the Term Loans
but prior to the Revolving Loan Commitment Termination Date, each Lender that
has a Percentage of the Revolving Loan Commitment in excess of zero will make
loans (relative to such Lender, its "Revolving Loans") to the Borrower equal to
such Lender's Percentage of the aggregate amount of the Borrowing or Borrowings
of Revolving Loans requested by the Borrower to be made on such day. The
Borrower may from time to time borrow, prepay and reborrow Revolving Loans. The
Commitment of each Lender described in this Section 2.1.2 is herein referred to
as its "Revolving Loan Commitment".
SECTION 2.1.3. Additional Commitments. At any time that no Default has
occurred and is continuing, the Borrower may notify the Agents that the Borrower
is requesting that, on the terms and subject to the conditions contained in this
Agreement, the Lenders and/or other financial institutions not then a party to
this Agreement that are satisfactory to the Agents and the Issuer provide up to
an aggregate amount of $50,000,000 in additional Term Loan Commitments and/or
Revolving Loan Commitments. Upon receipt of such notice, and with the consent of
the Required Lenders, the Syndication Agent shall use its best commercially
reasonable efforts to arrange for the Lenders or other financial institutions to
provide such additional Term Loan Commitments and/or Revolving Loan Commitments;
provided that the Syndication Agent will first offer (a) each of the Lenders
that then has a Percentage of the Term Loan Commitment a pro rata portion of any
such additional Term Loan Commitment and (b) each of the Lenders that then has a
Percentage of the Revolving Loan Commitment a pro rata portion of any such
additional Revolving Loan Commitment. Alternatively, any Lender may commit to
provide the full amount of the requested additional Term Loan Commitment and/or
Revolving Loan Commitment and then offer portions of such additional Term Loan
Commitment and/or Revolving Loan Commitment to the other Lenders or other
financial institutions, subject to the proviso to the immediately preceding
sentence. Nothing contained in this Section 2.1.3 or otherwise in this Agreement
is intended to commit any Lender or any Agent to provide any portion of any such
additional Term Loan Commitments and/or Revolving Loan Commitments. If and to
the extent that any Lenders and/or other financial institutions agree, in their
sole discretion, to provide any such additional Term Loan Commitments and/or
Revolving Loan Commitments, (i) the Term Loan Commitment Amount shall be
increased by the amount of the additional Term Loan Commitment agreed to be so
provided, (ii) the Revolving Loan Commitment Amount shall be increased by the
amount of the additional Revolving Loan
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Commitments agreed to be so provided, (iii) the Percentages of the respective
Lenders in respect of the Term Loan Commitment and/or the Revolving Loan
Commitment shall be proportionally adjusted, (iv) at such time and in such
manner as the Borrower and the Syndication Agent shall agree (it being
understood that the Borrower and the Agents will use their best commercially
reasonable efforts to avoid the prepayment or assignment of any LIBO Rate Loan
on a day other than the last day of the Interest Period applicable thereto), the
Lenders shall assign and assume outstanding Term Loans and/or Revolving Loans
and participations in outstanding Letters of Credit, as the case may be, so as
to cause the amounts of such Term Loans, Revolving Loans and participations in
Letters of Credit held by each Lender to conform to the respective Percentages
of the Term Loan Commitment and/or the Revolving Loan Commitment of the Lenders
and (v) the Borrower shall execute and deliver any additional Notes or other
amendments or modifications to this Agreement or any other Loan Document as the
Agents may reasonably request. In no event shall any Commitment Amount or the
Percentage of any Lender be increased without the written consent of such
Lender, and no term or condition (including as to pricing, covenants and events
of default) applicable to such additional Indebtedness shall be more favorable
in any material respect to the Lenders providing such additional Indebtedness
than the terms and conditions hereunder. The Syndication Agent agrees to
negotiate with the Borrower commercially reasonable fees and expenses for the
syndication of any such additional Indebtedness, and in the event the
Syndication Agent fails to do so, the Syndication Agent may be replaced, solely
in respect of such additional Indebtedness, by an instrument in writing
delivered to the Syndication Agent and signed by the Borrower.
SECTION 2.1.4. Letter of Credit Commitment. Subject to compliance by
the Borrower with the terms of Sections 2.1.6, 5.1 and 5.2, from time to time on
any Business Day occurring concurrently with (or after) the Closing Date but
prior to the Revolving Loan Commitment Termination Date, the Issuer will (i)
issue one or more standby or commercial letters of credit (each referred to as a
"Letter of Credit") for the account of the Borrower in the Stated Amount
requested by the Borrower on such day, or (ii) extend the Stated Expiry Date of
an existing standby or commercial Letter of Credit previously issued hereunder
to a date not later than the earlier of (x) one Business Day prior to the eighth
anniversary of the Closing Date and (y) one year from the date of such
extension, subject to the proviso in the penultimate sentence of Section 2.6.
SECTION 2.1.5. Lenders Not Permitted or Required to Make Loans. No
Lender shall be permitted or required to, and the Borrower shall not request any
Lender to, make
(a) any Term Loan if, after giving effect thereto, the
aggregate original principal amount of all Term Loans of such Lender
would exceed such Lender's Percentage of the Term Loan Commitment
Amount; or
(b) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Revolving Loans of such
Lender, together with such Lender's Percentage of the aggregate amount
of all Letter of Credit Outstandings, would exceed such Lender's
Percentage of the Revolving Loan Commitment Amount.
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SECTION 2.1.6. Issuer Not Required to Issue Letters of Credit. No
Issuer shall be required to issue any Letter of Credit if, after giving effect
thereto, (a) the aggregate amount of all Letter of Credit Outstandings would
exceed the Letter of Credit Commitment Amount or (b) the sum of the aggregate
amount of all Letter of Credit Outstandings plus the aggregate principal amount
of all Revolving Loans then outstanding would exceed the Revolving Loan
Commitment Amount.
SECTION 2.2. Reduction of Commitment Amounts. The Commitment Amounts
are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1 Optional. The Borrower may, from time to time on any
Business Day occurring after the date of the initial Credit Extension hereunder,
voluntarily reduce the Revolving Loan Commitment Amount; provided, however, that
all such reductions shall require at least one Business Day's prior notice to
the Administrative Agent and be permanent, and any partial reduction of the
Revolving Loan Commitment Amount shall be in a minimum amount of $5,000,000 and
in an integral multiple of $500,000. Any such reduction of the Revolving Loan
Commitment Amount which reduces the Revolving Loan Commitment Amount below the
Letter of Credit Commitment Amount shall result in an automatic and
corresponding reduction of the Letter of Credit Commitment Amount, to an
aggregate amount not in excess of the Revolving Loan Commitment Amount, as so
reduced, without any further action on the part of the Issuer.
SECTION 2.2.2. Mandatory.
(a) Commencing on the fifth anniversary of the Closing Date
and on each successive Quarterly Payment Date thereafter, the Revolving
Loan Commitment Amount shall, without any further action, automatically
and permanently reduce in the amounts set forth below opposite each
such date:
Scheduled Reduction of
Date Revolving Loan Commitment
1/31/04 $ 5,000,000
4/30/04 $ 5,000,000
7/31/04 $ 5,000,000
1/31/05 $ 5,000,000
4/30/05 $ 5,000,000
7/31/05 $ 5,000,000
10/31/05 $10,000,000
1/31/06 $10,000,000
4/30/06 $15,000,000
7/31/06 $15,000,000
10/31/06 $10,000,000
1/31/07 $10,000,000
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(b) Following the prepayment in full of the Term Loans, the
Revolving Loan Commitment Amount shall, without any further action,
automatically and permanently be reduced on the date the Term Loans
would otherwise have been required to be prepaid on account of any Net
Disposition Proceeds, Excess Cash Flow, Net Equity Proceeds or Net
Casualty Proceeds, in an amount equal to the amount by which the Term
Loans would otherwise have been required to be prepaid if Term Loans
had been outstanding; provided, that, at no time shall the Revolving
Loan Commitment Amount be reduced to less than $25,000,000.
SECTION 2.3. Borrowing Procedure and Funding Maintenance. By delivering
a Borrowing Request to the Administrative Agent on or before 11:00 a.m.,
Chicago, Illinois time, on a Business Day, the Borrower may from time to time
irrevocably request, on not less than one Business Day's notice (in the case of
Base Rate Loans) or three Business Days' notice (in the case of LIBO Rate Loans)
nor more than five Business Days' notice (in the case of any Loans), that a
Borrowing be made in an aggregate amount of $5,000,000 or any larger integral
multiple of $500,000 or in the unused amount of the applicable Commitment. No
Borrowing Request shall be required, and the minimum aggregate amounts specified
under this Section 2.3 shall not apply, in the case of Revolving Loans deemed
made under Section 2.6.2 in respect of unreimbursed Disbursements. On the terms
and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 12:00 noon, Chicago, Illinois time, on
such Business Day each Lender shall deposit with the Administrative Agent same
day funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders. To the extent
funds are received from the Lenders, the Administrative Agent shall promptly and
in any event prior to 2:00 p.m., Chicago, Illinois time, make such funds
available to the Borrower by wire transfer to the accounts the Borrower shall
have specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before 11:00
a.m., Chicago, Illinois time, on a Business Day, the Borrower may from time to
time irrevocably elect, on not less than one Business Day's notice (in the case
of a conversion of LIBO Rate Loans to Base Rate Loans) or three Business Days'
notice (in the case of a continuation of LIBO Rate Loans or a conversion of Base
Rate Loans into LIBO Rate Loans) nor more than five Business Days' notice (in
the case of any Loans) that all, or any portion in a minimum amount of
$5,000,000 and an integral multiple of $500,000 of any Loans be, in the case of
Base Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate
Loans, be converted into Base Rate Loans or continued as LIBO Rate Loans (in the
absence of delivery of a Continuation/ Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall, on such
last day, automatically convert to a Base Rate Loan); provided, however, that
(x) each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders, and (y) notwithstanding any
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contrary provision hereof, if an Event of Default has occurred and is continuing
and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Loans may be converted to or continued as a LIBO Rate Loan and (ii)
unless repaid, each LIBO Rate Loan shall be converted to a Base Rate Loan at the
end of the Interest Period applicable thereto.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Rate Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 11:00 a.m., Chicago, Illinois time, on a
Business Day, the Borrower may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice (or such shorter or
longer notice as may be acceptable to the Issuer), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice (unless a shorter or longer notice period is acceptable to
the Issuer) prior to the then existing Stated Expiry Date of a Letter of Credit,
in the case of a request for the extension of the Stated Expiry Date of a Letter
of Credit, that the Issuer issue, or extend the Stated Expiry Date of, as the
case may be, an irrevocable Letter of Credit on behalf of the Borrower (whether
issued for the account of or on behalf of the Borrower or any of its
Subsidiaries) in such form as may be requested by the Borrower and approved by
the Issuer, for the purposes described in clause (b) of Section 7.1.9.
Notwithstanding anything to the contrary contained herein or in any separate
application for any Letter of Credit, the Borrower hereby acknowledges and
agrees that it shall be obligated to reimburse the Issuer upon each Disbursement
paid under a Letter of Credit, and it shall be deemed to be the obligor for
purposes of each such Letter of Credit issued hereunder (whether the account
party on such Letter of Credit is the Borrower or a Subsidiary of the Borrower).
Upon receipt of an Issuance Request, the Administrative Agent shall promptly
notify the Issuer and each Lender thereof. Each Letter of Credit shall by its
terms be stated to expire on a date (its "Stated Expiry Date") no later than the
earlier to occur of (i) the Revolving Loan Commitment Termination Date or (ii)
one year from the date of its issuance; provided, that notwithstanding the terms
of clause (ii) above, a Letter of Credit may, if required by the beneficiary
thereof, contain "evergreen" provisions pursuant to which the Stated Expiry Date
shall be automatically extended (in each case, to the date no later than the
earlier to occur of (x) the Revolving Loan Commitment Termination Date or (y)
one year from the date of such automatic extension), unless notice to the
contrary shall have been given to the beneficiary by the Issuer or the account
party more than a specified
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period prior to the then existing Stated Expiry Date. The Issuer will make
available to the beneficiary thereof the original of each Letter of Credit which
it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage in respect of Revolving Loans, and the Issuer shall be deemed to
have irrevocably granted and sold to such Lender a participation interest in
such Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its Percentage in respect of Revolving Loans, be responsible for
reimbursing promptly (and in any event within one Business Day) the Issuer for
Reimbursement Obligations which have not been reimbursed by the Borrower in
accordance with Section 2.6.3. In addition, such Lender shall, to the extent of
its Percentage in respect of Revolving Loans, be entitled to promptly receive a
ratable portion of the Letter of Credit fees payable pursuant to Section 3.3.3
with respect to each Letter of Credit and of interest payable pursuant to
Section 2.6.2 with respect to any Reimbursement Obligation. To the extent that
any Lender has reimbursed the Issuer for a Disbursement as required by this
Section, such Lender shall be entitled to receive its ratable portion of any
amounts subsequently received (from the Borrower or otherwise) in respect of
such Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The Issuer
will notify the Borrower and the Administrative Agent promptly (but in any event
on the same Business Day) of the presentment for payment of any drawing under
any Letter of Credit issued by the Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Prior to 11:00 a.m., Chicago, Illinois
time, on the Business Day following the Disbursement Date (the "Disbursement Due
Date"), the Borrower will reimburse the Administrative Agent, for the account of
the Issuer, for all amounts which the Issuer has disbursed under such Letter of
Credit, together with interest thereon at the rate per annum otherwise
applicable to Revolving Loans (made as Base Rate Loans) from and including the
Disbursement Date to but excluding the Disbursement Due Date and, thereafter
(unless such Disbursement is converted into a Base Rate Loan on the Disbursement
Due Date), at a rate per annum equal to the rate per annum then in effect with
respect to overdue Revolving Loans (made as Base Rate Loans) pursuant to Section
3.2.2 for the period from the Disbursement Due Date through but excluding the
date of such reimbursement; provided, however, that unless the Borrower has
notified the Administrative Agent no later than one Business Day prior to the
Disbursement Due Date that it will reimburse the Issuer for the applicable
Disbursement, then the amount of the Disbursement shall be deemed to be a
Borrowing of Revolving Loans constituting Base Rate Loans and following the
giving of notice thereof by the Administrative Agent to the Lenders, each Lender
with a Revolving Loan Commitment (other than the Issuer) will deliver to the
Issuer on the Disbursement Due Date immediately available funds in an amount
equal to such Lender's Percentage of such Borrowing. Each conversion of
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Disbursement amounts into Revolving Loans shall constitute a representation and
warranty by the Borrower that on the date of the making of such Revolving Loans
all of the statements set forth in Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Base Rate Loan pursuant to Section 2.6.2, and, upon the Borrower failing or
electing not to reimburse the Issuer and the giving of notice thereof by the
Administrative Agent to the Lenders, each Lender's (to the extent it has a
Revolving Loan Commitment) obligation under Section 2.6.1 to reimburse the
Issuer or fund its Percentage of any Disbursement converted into a Base Rate
Loan, shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower or such Lender, as the case may be, may have or have had against the
Issuer or any such Lender, including any defense based upon the failure of any
Disbursement to conform to the terms of the applicable Letter of Credit (unless
the Issuer has committed gross negligence or willful misconduct in determining
whether or not such Disbursement was in substantial compliance with the terms of
the Letter of Credit) (if, in the Issuer's good faith opinion, such Disbursement
is determined to be appropriate) or any non-application or misapplication by the
beneficiary of the proceeds of such Letter of Credit; provided, however, that
after paying in full its Reimbursement Obligation hereunder, nothing herein
shall adversely affect the right of the Borrower or such Lender, as the case may
be, to commence any proceeding against the Issuer for any wrongful Disbursement
made by the Issuer under a Letter of Credit as a result of acts or omissions
constituting gross negligence or willful misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in clauses (a)
through (d) of Section 8.1.9 with respect to any Obligor (other than any
Subsidiary that is not a Material Subsidiary) or, with notice from the
Administrative Agent acting at the direction of the Required Lenders, upon the
occurrence and during the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuer under such Letters
of Credit (notwithstanding that such amount may not in fact have been
so paid or disbursed); and
(b) the Borrower shall be immediately obligated to reimburse
the Issuer for the amount deemed to have been so paid or disbursed by
the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time as the Events of Default giving rise to the
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deemed disbursements hereunder shall have been cured or waived, the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section, together with accrued
interest at the Federal Funds Rate, which have not been applied to the
satisfaction of such Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and,
to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be responsible for (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged, (ii) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid or ineffective for
any reason, (iii) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit, (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, or (v) any loss or delay in the
transmission or otherwise of any document or draft required in order to make a
Disbursement under a Letter of Credit. None of the foregoing shall affect,
impair or prevent the vesting of any of the rights or powers granted to the
Issuer or any Lender with a Revolving Loan Commitment hereunder. In furtherance
and extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon the
Borrower, each Obligor and each such Lender, and shall not put the Issuer under
any resulting liability to the Borrower, any Obligor or any such Lender, as the
case may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder. In the case of a Lender that
does not request, pursuant to clause (b)(ii) below, execution and
delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not
inconsistent with the notations made by the Administrative Agent in the
Register, be prima facie evidence of the matters noted; provided,
however, that the failure of any Lender to maintain such account or
accounts shall not limit or otherwise affect any Obligations of the
Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent
to serve as the Borrower's agent, solely for the purpose of this clause
(b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment,
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the Loans made by each Lender and each repayment in respect of the
principal amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment
Agreement delivered to the Administrative Agent pursuant to Section
10.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of
such Loans. The entries in the Register shall be prima facie evidence
of the matters noted, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person in whose name a Loan (and as
provided in clause (ii) the Note evidencing such Loan, if any) is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A
Lender's Commitment and the Loans made pursuant thereto may be assigned
or otherwise transferred in whole or in part only by registration of
such assignment or transfer in the Register. Any assignment or transfer
of a Lender's Commitment or the Loans made pursuant thereto shall be
registered in the Register only upon delivery to the Administrative
Agent of a Lender Assignment Agreement duly executed by the Assignor
thereof. No assignment or transfer of a Lender's Commitment or the
Loans made pursuant thereto shall be effective unless such assignment
or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section 2.7.
(ii) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender, as applicable, a Note evidencing the Loans made
by such Lender. The Borrower hereby irrevocably authorizes each Lender
to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall,
to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be prima facie evidence of the
matters noted; provided, however, that the failure of any Lender to
make any such notations, or any error in any such notation, shall not
limit or otherwise affect any Obligations of the Borrower or any other
Obligor. The Loans evidenced by any such Note and interest thereon
shall at all times (including after assignment pursuant to Section
10.11.1) be represented by one or more Notes payable to the order of
the payee named therein and its registered assigns. Subject to the
provisions of Section 10.11.1, a Note and the obligation evidenced
thereby may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer of such Note and
the obligation evidenced thereby in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of an
obligation evidenced by a Note shall be registered in the Register only
upon surrender for registration of assignment or transfer of the Note
evidencing such obligation,
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Loan; provided, however, that
(i) any such prepayment of the Term Loans shall be
made pro rata among Term Loans of the same type and, if
applicable, having the same Interest Period of all Lenders
that have made such Term Loans, and any such prepayment of
Revolving Loans shall be made pro rata among the Revolving
Loans of the same type and, if applicable, having the same
Interest Period of all Lenders that have made such Revolving
Loans;
(ii) the Borrower shall comply with Section 4.4 in
the event that any LIBO Rate Loan is prepaid on any day other
than the last day of the Interest Period for such Loan;
(iii) all such voluntary prepayments shall require at
least one Business Day's notice in the case of Base Rate
Loans, three Business Days' notice in the case of LIBO Rate
Loans, but no more than five Business Days' notice in the case
of any Loans, in each case in writing to the Administrative
Agent;
(iv) all such voluntary partial prepayments shall be
in an aggregate amount of $5,000,000 or any larger integral
multiple of $500,000 or in the aggregate principal amount of
all Loans of the type then outstanding; and
(v) any voluntary prepayment of Term Loans, or
mandatory prepayment of Term Loans on account of Net Debt
Proceeds pursuant to clause (c) of this Section 3.1.1, made on
or prior to the third anniversary of the Closing Date shall be
subject to the payment of a premium, as set forth below:
(A) 3.0% of the principal amount of Term Loans
prepaid pursuant to clause (a) or (c) of this Section
3.1.1 on or prior to the first anniversary of the
Closing Date;
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(B) 2.0% of the principal amount of Term Loans
prepaid pursuant to clause (a) or (c) of this Section
3.1.1 subsequent to the first anniversary and prior
to or on the second anniversary of the Closing Date;
and
(C) 1.0% of the principal amount of Term Loans
prepaid pursuant to clause (a) or (c) of this Section
3.1.1 subsequent to the second anniversary and prior
or on the third anniversary of the Closing Date;
(b) shall, no later than five Business Days following the
delivery by the Borrower of its annual audited financial reports
required pursuant to clause (b) of Section 7.1.1 (commencing with the
financial reports delivered in respect of the 2002 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess Cash
Flow for the Fiscal Year last ended and, no later than five Business
Days following the delivery of such calculation, make a mandatory
prepayment of the Term Loans in an amount equal to 50% of the Excess
Cash Flow (if any) for such Fiscal Year, to be applied as set forth in
Section 3.1.2;
(c) shall, not later than five Business Days following the
receipt of any Net Debt Proceeds by the Borrower or any of its
Subsidiaries, deliver to the Administrative Agent a calculation of the
amount of such Net Debt Proceeds and make a mandatory prepayment of the
Term Loans in an amount equal to 100% of such Net Debt Proceeds, to be
applied as set forth in Section 3.1.2; provided that any mandatory
prepayment on account of Net Debt Proceeds made on or prior to the
third anniversary of the Closing Date shall be subject to the payment
of a premium as set forth in clause (a)(v) of this Section 3.1.1;
(d) shall, not later than 30 days following the receipt of any
Net Disposition Proceeds by the Borrower or any of its Subsidiaries,
deliver to the Administrative Agent a calculation of the amount of such
Net Disposition Proceeds, and, to the extent the amount of such Net
Disposition Proceeds with respect to any single transaction or series
of related transactions exceeds $1,000,000, make a mandatory prepayment
of the Term Loans in an amount equal to 100% of such Net Disposition
Proceeds, to be applied as set forth in Section 3.1.2; provided that no
mandatory prepayment on account of such Net Disposition Proceeds shall
be required under this clause if the Borrower informs the Agents no
later than 30 days following the receipt of any such Net Disposition
Proceeds of its or its Subsidiary's good faith intention to apply such
Net Disposition Proceeds to make Capital Expenditures or to acquire
Capital Stock of an entity that is or becomes a Subsidiary Guarantor or
other long term assets that are used or useful in the same or similar
lines of business or businesses reasonably related thereto of the
Borrower on the Closing Date within 360 days following the receipt of
such Net Disposition Proceeds, with the amount of such Net Disposition
Proceeds unused after such 360 day period being applied to the Loans as
set forth in Section 3.1.2;
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(e) shall, concurrently with the receipt of any Net Equity
Proceeds by the Borrower or any of its Subsidiaries at any time after
the fifth anniversary of the Closing Date, deliver to the
Administrative Agent a calculation of the amount of such Net Equity
Proceeds, and no later than five Business Days following the delivery
of such calculation, and, to the extent that the amount of such Net
Equity Proceeds exceeds $5,000,000, make a mandatory prepayment of the
Term Loans in an amount equal to 50% of such Net Equity Proceeds to be
applied as set forth in Section 3.1.2;
(f) shall, within 60 days following the receipt by the
Borrower or any of its Subsidiaries of any Net Casualty Proceeds in
excess of $1,000,000 (individually or in the aggregate over the course
of a Fiscal Year), make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Net Casualty Proceeds, to be applied as
set forth in Section 3.1.2; provided that no mandatory prepayment on
account of Net Casualty Proceeds shall be required under this clause if
the Borrower informs the Agents no later than 60 days following the
occurrence of the Casualty Event resulting in such Net Casualty
Proceeds of its or its Subsidiary's good faith intention to apply such
Net Casualty Proceeds to the rebuilding or replacement of the damaged,
destroyed or condemned assets or property or to make Capital
Expenditures or to acquire Capital Stock of an entity that is or
becomes a Subsidiary Guarantor or other long term assets that are used
or useful in the same or similar lines of business or businesses
reasonably related thereto of the Borrower on the Closing Date and in
fact uses such Net Casualty Proceeds to rebuild or replace the damaged,
destroyed or condemned assets or property within 360 days following the
receipt of such Net Casualty Proceeds, with the amount of such Net
Casualty Proceeds unused after such 360 day period being applied to the
Loans pursuant to Section 3.1.2;
(g) shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, including pursuant to
Section 3.1.2, make a mandatory prepayment of Revolving Loans and (if
necessary) deposit with the Administrative Agent cash collateral for
Letter of Credit Outstandings in an aggregate amount equal to the
excess, if any, of the sum of (i) the aggregate outstanding principal
amount of all Revolving Loans and (ii) the aggregate amount of all
Letter of Credit Outstandings over the Revolving Loan Commitment Amount
as so reduced;
(h) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the outstanding principal amount, if any, of
Term Loans in an aggregate amount equal to the amount set forth
opposite such Stated Maturity Date or period, as applicable (as such
amounts may have otherwise been increased or reduced pursuant to this
Agreement):
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Scheduled
Principal
Period Repayment
2/1/03 - 1/31/07 $ 437,500
2/1/07 - 7/31/07 $17,500,000
8/1/07 to the Ninth
Anniversary of the
Closing Date $66,500,000
(i) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans or Obligations pursuant to Section 8.2 or
Section 8.3, repay all outstanding Loans and other Obligations, unless,
pursuant to Section 8.3, only a portion of all Loans and other
Obligations are so accelerated (in which case the portion so
accelerated shall be so prepaid).
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by clause (a)(v) of this
Section 3.1.1 and/or Section 4.4. No prepayment of principal of any Revolving
Loans pursuant to clause (a) or (g) of this Section 3.1.1 shall cause a
reduction in the Revolving Loan Commitment Amount.
SECTION 3.1.2. Application.
(a) Subject to clause (b) below, each prepayment or repayment
of principal of the Loans shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, to the principal amount
thereof being maintained as LIBO Rate Loans; provided that prepayments
or repayments of LIBO Rate Loans not made on the last day of the
Interest Period with respect thereto, shall be prepaid or repaid
subject to the provisions of Section 4.4 (together with a payment of
all accrued interest).
(b) Each voluntary prepayment of Term Loans and each mandatory
prepayment of Term Loans made pursuant to clauses (b), (c), (d), (e)
and (f) of Section 3.1.1 shall be applied, to the extent of such
prepayment, on a pro rata basis, to a prepayment of the outstanding
principal amount of all remaining Term Loans and the remaining
scheduled quarterly amortization payments in respect thereof, until all
such Term Loans have been paid in full, and thereafter, to a prepayment
of the outstanding principal amount of all Revolving Loans and a
reduction of the Revolving Loan Commitment Amount to not less than
$25,000,000; provided, however, that if the Borrower at any time elects
in writing, in its sole discretion, to permit any Lender that has Term
Loans to decline to have such
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Loans prepaid, then any Lender having Term Loans outstanding may, by
delivering a notice to the Agents at least one Business Day prior to
the date that such prepayment is to be made, decline to have such Loans
prepaid with the amounts set forth above, in which case 50% of the
amounts that would have been applied to a prepayment of such Lender's
Term Loans shall instead be applied to a prepayment of the Revolving
Loans and a reduction of the Revolving Loan Commitment Amount to not
less than $25,000,000, with the balance being retained by the Borrower.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of the Loans shall accrue and be payable in accordance with this Section
3.2.
SECTION 3.2.1. Rates.
(a) Each Base Rate Loan shall accrue interest on the unpaid
principal amount thereof for each day from and including the day upon
which such Loan was made or converted to a Base Rate Loan to but
excluding the date such Loan is repaid or converted to a LIBO Rate Loan
at a rate per annum equal to the sum of the Alternate Base Rate for
such day plus the Applicable Margin for such Loan on such day.
(b) Each LIBO Rate Loan shall accrue interest on the unpaid
principal amount thereof for each day during each Interest Period
applicable thereto at a rate per annum equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin for such Loan on such day.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan shall have become due and payable (whether on the applicable Stated
Maturity Date, upon acceleration or otherwise), or any other monetary Obligation
(other than overdue Reimbursement Obligations which shall bear interest as
provided in Section 2.6.2) of the Borrower shall have become due and payable,
the Borrower shall pay, but only to the extent permitted by law, interest (after
as well as before judgment) on such amounts at a rate per annum equal to (a) in
the case of any overdue principal of Loans, overdue interest thereon, overdue
commitment fees or other overdue amounts in respect of Loans or other
obligations (or the related Commitments), the rate that would otherwise be
applicable to Base Rate Loans pursuant to Section 3.2.1 plus 2% and (b) in the
case of other overdue monetary Obligations, the rate that would otherwise be
applicable to Revolving Loans that were Base Rate Loans plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
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(b) in the case of a LIBO Rate Loan, on the date of any
payment or prepayment, in whole or in part, of principal outstanding on
such Loan, to the extent of the unpaid interest accrued through such
date on the principal so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for each day during the period (including any portion thereof when
any of the Lenders' Revolving Loan Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Closing Date and continuing to but excluding the Revolving Loan Commitment
Termination Date, a commitment fee on such Lender's Percentage of the unused
portion, whether or not then available, of the Revolving Loan Commitment Amount
(net of Letter of Credit Outstandings) for such day at a rate per annum equal to
the Applicable Commitment Fee for such day. Such commitment fees shall be
payable by the Borrower in arrears on each Quarterly Payment Date, commencing
with the first such day following the Closing Date, and on the Revolving Loan
Commitment Termination Date.
SECTION 3.3.2. Administrative Agent Fee. The Borrower agrees to pay an
annual administration fee to the Administrative Agent, for its own account, in
the amount set forth in a letter dated January 29, 1999, between the Borrower
and the Administrative Agent, payable in advance on the Closing Date and
annually thereafter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment Amount, a Letter of Credit fee for
each day on which there shall be any Letters of Credit outstanding on the
aggregate undrawn amount of all Letters of Credit outstanding on such day, at a
rate per annum equal to the Applicable Margin for such day for Revolving Loans
that
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are maintained as LIBO Rate Loans. The Borrower further agrees to pay to the
Issuer for its own account, for each day on which there shall be any Letters of
Credit outstanding, an issuance fee on the aggregate undrawn amount of all
Letters of Credit outstanding on such day at the rate per annum agreed by the
Borrower and such Issuer. All such fees shall be payable quarterly in arrears on
each Quarterly Payment Date and on the Revolving Loan Commitment Termination
Date.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law, in each case after the date upon
which such Lender shall have become a Lender hereunder, makes it unlawful, or
any central bank or other governmental authority asserts, after such date, that
it is unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make,
continue, maintain or convert any Loans as or to LIBO Rate Loans shall, upon
such determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist (with the date of such notice being the "Reinstatement Date"), and (i) all
LIBO Rate Loans previously made by such Lender shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law or assertion and (ii) all Loans
thereafter made by such Lender and outstanding prior to the Reinstatement Date
shall be made as Base Rate Loans, with interest thereon being payable on the
same date that interest is payable with respect to the corresponding Borrowing
of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
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SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
Taxes, referred to in Section 4.6) arising as a result of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority that occurs after the date upon which such
Lender became a Lender hereunder. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan, but excluding any loss of margin after the date of any such
conversion, repayment, prepayment or failure to borrow, continue or convert) as
a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being borrowed as LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/ Conversion Notice
therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority, in each case occurring after the applicable
Lender
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becomes a Lender hereunder, affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, participation in Letters of Credit or the Loans
made by such Lender is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. All payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations), fees and expenses) shall be made free and clear of
and without deduction for any present or future income, profits, gross receipts,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) any income, profits, gross receipts, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholding or other charges
imposed on either of the Agents as a result of a present or former connection
between the applicable lending office (or office through which it performs any
of its actions as Agent) of such Agent, and any income, profits, gross receipts,
excise, stamp or franchise taxes and other similar taxes, fees, duties,
withholding or other charges imposed on any Lender as a result of a present or
former connection between the applicable lending office of a Lender, in each
case and the jurisdiction of the governmental authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or taken any
action to enforce, this Agreement and any Note) and (ii) any income, profits,
gross receipts, excise, stamp or franchise taxes and other similar taxes, fees,
duties, withholding or other charges to the extent that they are in effect and
would apply as of the date that any Person becomes a Lender or Assignee Lender,
or as of the date that any Lender changes its applicable lending office, if such
taxes become applicable as a result of such change (other than a change in an
applicable lending office made pursuant to Section 4.10 below) (such
non-excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will pay directly to the relevant taxing authority the full amount
required to be so withheld or deducted, promptly forward to the Administrative
Agent an official receipt or other documentation reasonably satisfactory to the
Administrative Agent evidencing such payment to such authority, and pay to the
Administrative Agent for the account of the Lenders such additional amount or
amounts as is necessary to ensure that the net amount actually received by each
Lender will equal the full amount such Lender would have received had no such
withholding or deduction been required; provided, however, that the Borrower
shall not be
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required to increase any such amounts payable to any Lender that is not
organized under the laws of the United States or a state thereof if such Lender
fails to comply with the requirements of clause (b) of Section 4.6.
Moreover, if any Taxes are directly asserted against either of the
Agents or any Lender with respect to any payment received by such Agents or such
Lender hereunder, such Agents or such Lender may pay such Taxes and the Borrower
will promptly pay to such Person such additional amount (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person (including any Taxes on such additional amount) shall
equal the amount of such Taxes paid by such Person; provided, however, that the
Borrower shall not be obligated to make payment to the Lenders or the Agents (as
the case may be) pursuant to this sentence in respect of interest attributable
to any Taxes, if written demand therefor has not been made by such Lenders or
the Agents within 60 days from the date on which such Lenders or the Agents knew
of the imposition of Taxes by the relevant taxing authority or for any
additional imposition which may arise from the failure of the Lenders or the
Agents to apply payments in accordance with the tax law after the Borrower has
made the payments required hereunder. After the Lenders or the Agents (as the
case may be) learn of the imposition of Taxes, such Lenders and the Agents will
act in good faith to notify the Borrower of its obligations hereunder as soon as
reasonably possible.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) (A) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, (B) in the case of an Assignee Lender, on or
prior to the date it becomes a Lender, execute and deliver to the Borrower and
the Administrative Agent, two or more (as the Borrower or the Agents may
reasonably request) United States Internal Revenue Service Forms 4224 or Forms
1001 or, solely if such Lender is claiming complete exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", United States Internal Revenue Service Forms
W-8 and a certificate signed by a duly authorized officer of such Lender
representing that such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, and such other forms, documents and/or certification
(or successor forms, documents and/or certification), appropriately completed,
as may be reasonably requested by the Borrower establishing that payments to
such Lender are exempt in their entirety from withholding or deduction of Taxes;
and (ii) deliver to the Borrower and the Administrative Agent two further copies
of any such form or documents on or before the date that any such form or
document expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent such form or document previously delivered
by it to the Borrower.
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(c) If the Borrower determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender or either
of the Agents, the relevant Lender or Agent, as the case may be, shall fully
cooperate with the Borrower in challenging such Tax at the Borrower's expense if
requested by the Borrower.
(d) If a Lender or an Agent shall receive a refund (including any
offset or credits from a taxing authority (as a result of any error in the
imposition of Taxes by such taxing authority) of any Taxes paid by the Borrower
pursuant to subsection 4.6(a) above), such Lender or the Agent (as the case may
be) shall promptly pay the Borrower the amount so received, with interest from
the taxing authority with respect to such refund.
(e) Each Lender and each Agent agrees, to the extent reasonable and
without material cost to it, to cooperate with the Borrower to minimize any
amounts payable by the Borrower under this Section 4.6.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes or any other Loan Document shall be made by the Borrower to
the Administrative Agent for the pro rata account of the Lenders, Agents or Lead
Arranger, as applicable, entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 11:00 a.m., Chicago, Illinois time, on
the date due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrower.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender, Agent or Lead
Arranger, as the case may be, its share, if any, of such payments received by
the Administrative Agent for the account of such Lender, Agent or Lead Arranger,
as the case may be. All interest and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate Loan, 365
days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (i) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligations (other
than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro
rata share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participation in
the Credit Extensions made by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of them; provided, however, that if all or any portion of the excess
payment or other recovery is thereafter recovered from such purchasing
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Lender, the purchase shall be rescinded and each Lender which has sold a
participation to the purchasing Lender shall repay to the purchasing Lender the
purchase price to the ratable extent of such recovery together with an amount
equal to such selling Lender's ratable share (according to the proportion of (i)
the amount of such selling Lender's required repayment to the purchasing Lender
in respect of such recovery, to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment (including pursuant to Section 4.9) with respect to
such participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Event of Default described in clauses (a) through (d) of Section 8.1.9 with
respect to any Obligor (other than Subsidiaries that are not Material
Subsidiaries) or, with the consent of the Required Lenders, upon the occurrence
of any other Event of Default, to the fullest extent permitted by law, have the
right to appropriate and apply to the payment of the Obligations then due to it,
and (as security for such Obligations) the Borrower hereby grants to each Lender
a continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. Mitigation. Each Lender agrees that if it makes any
demand for payment under Section 4.3, 4.4, 4.5, or 4.6, or if any adoption or
change of the type described in Section 4.1 shall occur with respect to it, it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for
the Borrower to make payments under Section 4.3, 4.4, 4.5, or 4.6, or would
eliminate or reduce the effect of any adoption or change described in Section
4.1. Any demand for payment by a Lender pursuant to Sections 4.3, 4.5 or 4.6
shall be effective only if notice thereof shall have been given within 90 days
after delivery of the annual audit report for such Lender for the Fiscal Year in
which the event giving rise to such demand shall have occurred.
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SECTION 4.11. Replacement of Lenders. Each Lender hereby severally
agrees as set forth in this Section. If any Lender (a "Subject Lender") makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to Section 4.3, 4.5 or 4.6, or gives notice pursuant to Section
4.1 requiring a conversion of such Subject Lender's LIBO Rate Loans to Base Rate
Loans or suspending such Lender's obligation to make Loans as, or to convert
Loans into, LIBO Rate Loans, the Borrower may, within 90 days of receipt by the
Borrower of such demand or notice (or the occurrence of such other event causing
the Borrower to be required to pay such compensation), as the case may be, give
notice (a "Replacement Notice") in writing to the Agents and such Subject Lender
of its intention to replace such Subject Lender with a financial institution (a
"Replacement Lender") designated in such Replacement Notice. If the Agents
shall, in the exercise of their reasonable discretion and within 30 days of
their receipt of such Replacement Notice, notify the Borrower and such Subject
Lender in writing that the designated financial institution is satisfactory to
the Agents (such consent not being required where the Replacement Lender is
already a Lender), then such Subject Lender shall, subject to the payment of any
amounts that would be due pursuant to Section 4.4 if the Borrower were then
making a prepayment in an equal amount, assign, in accordance with Section
10.11.1, all of its Commitments, Loans, Notes and other rights and obligations
under this Agreement and all other Loan Documents (including, without
limitation, Reimbursement Obligations) to such designated financial institution;
provided, however, that (i) such assignment shall be without recourse,
representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Subject Lender and such designated financial institution
and (ii) the purchase price paid by such designated financial institution shall
be in the amount of such Subject Lender's Loans and its Percentage of
outstanding Reimbursement Obligations, together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts (including the
amounts demanded and unreimbursed under Sections 4.3, 4.5 and 4.6), owing to
such Subject Lender hereunder. Upon the effective date of an assignment
described above, the Borrower shall issue a replacement Note or Notes, as the
case may be, to such designated financial institution or Replacement Lender, as
applicable, and such institution shall become a "Lender" for all purposes under
this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
and, if applicable, the Issuer to fund the initial Credit Extension shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Agents shall have received from
each Obligor (a) a copy of a good standing certificate, dated a date reasonably
close to the Closing Date, for each such Person and (b) a certificate, dated the
date of the initial Credit Extension, of its Secretary or Assistant Secretary as
to (i) resolutions of such Person's Board of Directors then in full force and
effect authorizing the execution, delivery and performance of each Loan
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Document to be executed by such Person and the transactions contemplated thereby
(ii) the incumbency and signatures of those of such Person's officers authorized
to act with respect to each Loan Document executed by such Person, and (iii) the
full force and validity of each Organic Document of such Person and copies
thereof, upon which certificates each Agent and each Lender may conclusively
rely until it shall have received a further certificate of the Secretary or
Assistant Secretary of such Obligor canceling or amending such prior
certificate.
SECTION 5.1.2. Delivery of Notes. The Agents shall have received, for
the account of each Lender so requesting Notes, such Lender's Notes duly
executed and delivered by an Authorized Officer of the Borrower.
SECTION 5.1.3. Transaction Documents. The Agents shall have received
(with copies for each Lender that shall have expressly requested copies thereof)
fully executed copies of the Transaction Documents and all certificates,
opinions and other documents delivered thereunder, certified to be true and
complete copies thereof by an Authorized Officer of the Borrower.
SECTION 5.1.4. Closing Date Certificate. Each of the Agents shall have
received, with counterparts for each Lender, the Closing Date Certificate,
substantially in the form of Exhibit D hereto, dated the date of the initial
Credit Extension and duly executed and delivered by the chief executive,
financial or accounting (or equivalent) Authorized Officer of the Borrower, in
which certificate the Borrower shall agree and acknowledge that the statements
made therein shall be deemed to be true and correct representations and
warranties of the Borrower made as of such date under this Agreement, and, at
the time such certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.5. Subsidiary Guaranty. The Agents shall have received the
Subsidiary Guaranty, dated the date hereof, duly executed and delivered by an
Authorized Officer of each U.S. Subsidiary of the Borrower in existence on the
date of the initial Credit Extension.
SECTION 5.1.6. Parent Guaranty and Pledge Agreement. The Agents shall
have received executed counterparts of the Parent Guaranty and Pledge Agreement,
dated as of the date hereof, duly executed and delivered by an Authorized
Officer of the Parent, together with (i) the certificates evidencing all of the
issued and outstanding shares of Capital Stock of the Borrower which shall be
pledged pursuant to the Parent Guaranty and Pledge Agreement, which certificates
shall in each case be accompanied by undated stock powers duly executed in blank
and (ii) all promissory notes, if any, evidencing intercompany Indebtedness
payable to the Parent duly endorsed to the order of the Administrative Agent,
together with Uniform Commercial Code Financing Statements (or similar
instruments) in respect of such promissory notes executed by the Parent to be
filed in such jurisdictions as the Administrative Agent may reasonably request.
SECTION 5.1.7. Security Agreements. The Agents shall have received
executed counterparts of the Borrower Security and Pledge Agreement, dated as of
the date hereof, duly executed and delivered by an Authorized Officer of the
Borrower and, in the event the Borrower
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has any U.S. Subsidiaries, executed counterparts of a Subsidiary Security and
Pledge Agreement dated as of the date hereof, duly executed and delivered by an
Authorized Officer of each such U.S. Subsidiary, together with
(a) executed copies of Uniform Commercial Code financing
statements (Form UCC-1), naming the Borrower and each such U.S.
Subsidiary (if any) as a debtor and the Administrative Agent as the
secured party, or other similar instruments or documents, to be filed
under the Uniform Commercial Code of all jurisdictions as may be
necessary or, in the opinion of the Administrative Agent, desirable to
perfect the security interests of the Administrative Agent pursuant to
such Security Agreement;
(b) the applicable Perfection Certificate;
(c) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report
certified by a party acceptable to the Agents, dated a date reasonably
near to the date of the initial Credit Extension, listing all effective
financing statements which name the Borrower and each U.S. Subsidiary
(under its present name and any previous names) as the debtor and which
are filed in the jurisdictions in which filings were made pursuant to
clause (a) above, together with copies of such financing statements
(none of which shall cover any collateral described in any Security
Agreement);
(d) in the event the Borrower has any Subsidiaries,
certificates evidencing all of the issued and outstanding shares of
Capital Stock owned by the Borrower in each such Subsidiary or owned by
any other Subsidiary, which certificates shall be accompanied by
undated stock powers duly executed in blank; and
(e) all Intercompany Notes (as defined in the relevant
Security Agreement), if any, evidencing Indebtedness payable to the
Borrower or to any Subsidiary duly endorsed to the order of the
Administrative Agent, together with Uniform Commercial Code Financing
Statements (or similar instruments) in respect of such Intercompany
Notes executed by the Borrower or a Subsidiary Guarantor to be filed in
such jurisdictions as the Administrative Agent may reasonably request;
provided, however, that neither the Borrower nor any of its Subsidiaries shall
be required to pledge in excess of 65% of the outstanding voting stock of any
Non-U.S. Subsidiary. If any securities pledged pursuant to a Security Agreement
are uncertificated securities or are held through a financial intermediary, the
Administrative Agent shall have received confirmation and evidence satisfactory
to it that appropriate book entries have been made in the relevant books or
records of a financial intermediary or the issuer of such securities, as the
case may be, or other appropriate steps have been taken under applicable law
resulting in the perfection of the security interest granted in favor of the
Administrative Agent in such securities pursuant to the terms of the applicable
Security Agreement.
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SECTION 5.1.8. Assignment Agreement and Consents to Assignment. The
Agents shall have received a fully executed copy of the Assignment Agreement,
together with consents to assignment executed and delivered by the parties to
the Nextel Operating Agreements.
SECTION 5.1.9. Licenses. The Administrative Agent shall have received
from the Borrower a photocopy, certified to be true and complete, of the
Licenses presently owned by the Nextel License Subsidiary for the markets listed
on Schedule III and such Licenses shall be owned by the Nextel License
Subsidiary free and clear of all Liens (other than Liens created by any Loan
Document or imposed by the Communications Act).
SECTION 5.1.10. Consents. The Agents shall have received evidence
satisfactory to each of them that the Borrower has made appropriate filings with
the FCC in order to obtain all consents and approvals required to be obtained
from the FCC in connection with the License Transfer. Other than consents and
approvals required to be obtained from the FCC in connection with the License
Transfer, all consents and approvals required to be obtained from any
governmental authority or other Person in connection with the Transaction or the
other transactions contemplated hereby, including evidence of compliance with
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have
been obtained, and all applicable waiting periods and appeal periods shall have
expired, without the imposition of any material conditions and there shall be no
governmental or judicial action, actual or threatened, that could reasonably be
expected to restrain, prevent or impose material conditions on the Transaction
or the other transactions contemplated hereby. To the extent contemplated by the
terms of this Agreement and the Subscription and Contribution Agreement, the
Transaction shall have been, or substantially simultaneously with the initial
funding of Credit Extensions on the Closing Date shall be, consummated in
accordance with the Transaction Documents and applicable law, without any
amendment to or waiver of any material terms or conditions of the Transaction
Documents not approved by the Required Lenders.
SECTION 5.1.11. Capitalization and Structure. To the extent not
expressly contemplated in the Subscription and Contribution Agreement or the
Restated Certificate of Incorporation, the Agents shall be satisfied with (a)
the corporate and capital structure of the Borrower and its Subsidiaries and (b)
the contributions to the Borrower's equity. The Agents shall be satisfied with
the corporate and capital structure of the Nextel License Subsidiary.
SECTION 5.1.12. Vendor Contracts. The Borrower shall have entered into
supply contracts with Motorola for the Network Build-Out and the acquisition of
related equipment and, to the extent material, such contracts shall be
reasonably satisfactory to the Lenders.
SECTION 5.1.13. Financial Information, etc. On the Closing Date, the
Agents shall have received, with counterparts for each Lender, a pro forma
consolidated balance sheet of the Borrower and its Subsidiaries, as of October
31, 1998 (the "Pro Forma Balance Sheet"), certified by the chief financial or
accounting Authorized Officer of the Borrower, giving effect to all pro forma
adjustments as if the Transaction had been consummated on such date, and
reflecting the
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proposed legal and capital structure of the Borrower, which legal and capital
structure shall be satisfactory in all respects to the Arranger and the
Syndication Agent.
SECTION 5.1.14. Business Plan. The Agents shall have received a
certificate dated the Closing Date executed by an Authorized Officer of the
Borrower certifying that attached thereto is a nine-year business plan of the
Borrower satisfactory to the Lenders with quarterly projections for at least the
three-year period following the Closing Date.
SECTION 5.1.15. Nextel Contribution, Motorola Contribution, Investors
Contribution, Borrower Equity Contribution and Senior Discount Note Issuance.
The Agents shall have received evidence satisfactory to each of them that (i)
NWIP made the Nextel Contribution, (ii) Motorola made the Motorola Contribution,
(iii) the amount of cash consideration received by the Parent for the sale of
its Preferred Stock to the Investors pursuant to the Subscription and
Contribution Agreement, plus the amount of additional cash consideration payable
by the Investors pursuant to irrevocable binding commitments with the Parent set
forth in the Subscription and Contribution Agreement, shall be at least
$156,400,000, (iv) the Parent received not less than $400,000,000 in gross cash
proceeds from the Senior Discount Notes Issuance and (v) the Borrower received
the Borrower Equity Contribution.
SECTION 5.1.16. Litigation. There shall exist no pending or threatened
material litigation, proceedings or investigations which (x) contests the
consummation of the Transaction or (y) could reasonably be expected to have a
material adverse effect on the financial condition, operations, assets,
businesses, properties or prospects of the Parent, the Borrower, or any of their
respective Subsidiaries or the ability of NWIP to perform its obligations under
the Nextel Operating Agreements.
SECTION 5.1.17. Material Adverse Change. There shall have occurred no
material adverse change in the financial condition, operations, assets,
business, properties or prospects of the Borrower and its Subsidiaries, taken as
a whole, or the Parent and its Subsidiaries, taken as a whole, since December
31, 1998.
SECTION 5.1.18. Reliance Letters. The Agents shall, unless otherwise
agreed, have received reliance letters, dated the date of the making of the
initial Credit Extension and addressed to each Lender and each Agent, in respect
of each of the legal opinions (other than "disclosure" and other similar
opinions) delivered in connection with the Transaction.
SECTION 5.1.19. Opinions of Counsel. The Agents shall have received
opinions, dated the date of the initial Credit Extension and addressed to the
Agents and all Lenders from
(a) Xxxxxxxx Xxxxxx & Xxxxxx LLP, New York counsel to each of
the Obligors, in substantially the form of Exhibit N-1 hereto;
(b) Xxxxxxx Xxxx & Xxxxxxxxx, special FCC counsel to the
Obligors, in substantially the form of Exhibit N-2 hereto; and
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(c) Paine, Hamblen, Xxxxxx, Xxxxxx & Xxxxxx LLP, special
Washington counsel to the Obligors, Xxxxx Xxxxxx Xxxxxxxx LLP, special
Hawaiian counsel to the Obligors, in substantially the form of Exhibit
N-3 hereto.
SECTION 5.1.20. Insurance. The Agents shall have received satisfactory
evidence of the existence of insurance in compliance with Section 7.1.4
(including all endorsements included therein), and the Administrative Agent
shall be named additional insured or loss payee, on behalf of the Lenders,
pursuant to documentation reasonably satisfactory to the Agents and the
Borrower.
SECTION 5.1.21. NWIP Undertaking. The Administrative Agent shall have
received the NWIP Undertaking, dated as of the date of the initial Credit
Extension, duly executed and delivered by an Authorized Officer of NWIP.
SECTION 5.1.22. Cash Account; Cash Collateral Agreement. The Agents
shall have received a copy of the Cash Collateral Agreement, dated as of the
date of the date hereof, duly executed and delivered by an Authorized Officer of
the Borrower, together with evidence that the Cash Account has been established
pursuant to the Borrower Security and Pledge Agreement and that the proceeds of
the Loans made on the Closing Date shall be deposited into the Cash Account.
SECTION 5.1.23. Realco Agreement; Management Agreement. The
Administrative Agent shall have received each of the Realco Agreement and the
Management Agreement, each dated as of the date of the initial Credit Extension,
duly executed and delivered by Authorized Officers of each of the Borrower and
Realco.
SECTION 5.1.24. Closing Fees, Expenses, etc. The Agents and the
Arranger shall have received, each for its own respective account, or, in the
case of the Administrative Agent, for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to Sections 3.3
and 10.3, if then invoiced.
SECTION 5.1.25. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be reasonably satisfactory in form and
substance to the Agents and their counsel; the Agents and their counsel shall
have received all information, approvals, opinions, documents or instruments as
the Agents or their counsel may reasonably request.
SECTION UCC 5.1.26. Filing Service. All Uniform Commercial Code (Form
UCC-1) financing statements or other similar financing statements required
pursuant to the Loan Documents (collectively, the "Filing Statements") shall
have been delivered to CT Corporation System or another similar filing service
company reasonably acceptable to the Administrative Agent (the "Filing Agent").
The Filing Agent shall have acknowledged in writing reasonably satisfactory to
the Administrative Agent and its counsel (i) the Filing Agent's receipt of all
such Filing Statements, (ii) that such Filing Statements have either been
submitted for filing in the
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appropriate filing offices therefor or will be submitted for filing in such
appropriate offices within ten days of the Closing Date and (iii) that the
Filing Agent will notify the Administrative Agent and its counsel of the result
of such submissions within 30 days of the Closing Date.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and,
if applicable, the Issuer, to make any Credit Extension (including its initial
Credit Extension) shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) the sum of the (A) aggregate outstanding principal amount
of all Revolving Loans and (B) the aggregate amount of all Letter of
Credit Outstandings does not exceed the then existing Revolving Loan
Commitment Amount; and
(c) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request. The Agents shall have received
a Borrowing Request if Loans are being requested, or an Issuance Request if a
Letter of Credit is being requested or extended. Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of
proceeds of any Credit Extension shall constitute a representation and warranty
by the Borrower that on the date of such Credit Extension (both immediately
before and after giving effect thereto and the application of the proceeds
thereof) the statements made in Section 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Agents to enter into
this Agreement and to make Loans and issue Letters of Credit hereunder, the
Borrower represents and warrants unto the Agents and each Lender as set forth in
this Article VI.
SECTION 6.1. Organization, etc. Each of the Borrower and its
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of the jurisdiction of its organization, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business requires such
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qualification, except where the failure to be so qualified could not reasonably
be expected to have a Material Adverse Effect, and has full power and authority
and holds all requisite governmental licenses, permits and other approvals to
enter into and perform its Obligations under this Agreement, the Notes and each
other Loan Document to which it is a party and to own and hold under lease its
property (including the Licenses), to operate Network in the areas set forth on
Schedule III and to conduct its business substantially as currently conducted by
it, except where the failure to hold such governmental licenses, permits and
approvals could not reasonably be expected to have a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Material Obligor of each Loan Document
executed or to be executed by it and each such other Material Obligor's
participation in the consummation of the Transactions are within the Borrower's
and each such other Material Obligor's corporate powers, have been duly
authorized by all necessary corporate action, and do not
(a) contravene the Borrower's or any such Material Obligor's
Organic Documents;
(b) contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or any such Material Obligor; or
(c) result in, or require the creation or imposition of, any
Lien (other than Liens permitted under the Loan Documents) on any of
the Borrower's or any other Material Obligor's properties.
SECTION 6.3. Government Approval, Regulation, etc. Other than consents
and approvals required to be obtained from the FCC in connection with the
License Transfer, no material authorization or approval or other action by, and
no material notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery or performance
by the Borrower or any other Material Obligor of this Agreement, the Notes or
any other Loan Document to which it is a party, or for the Borrower's and each
such other Material Obligor's participation in the consummation of the
Transaction, except as have been duly obtained or made and are in full force and
effect. No Material Obligor is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
the Borrower enforceable in accordance
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with their respective terms, and each Loan Document executed pursuant hereto by
each other Material Obligor will, on the due execution and delivery thereof by
such Material Obligor, be the legal, valid and binding obligation of such
Material Obligor enforceable in accordance with its terms, in each case 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 6.5. Financial Information. The Pro Forma Balance Sheet
delivered pursuant to Section 5.1.13 has been prepared in accordance with GAAP
consistently applied, and presents fairly the consolidated financial condition
of the corporations covered thereby as at the date thereof, subject in the case
of interim financial statements to the lack of footnotes and to normal year end
audit adjustments. The Borrower and its Subsidiaries have no material
liabilities (contingent or otherwise) as of the Closing Date that are not
reflected in the Pro Forma Balance Sheet (other than as described in the
Offering Memorandum, dated January 22, 1999, with respect to the offering of the
Senior Notes).
SECTION 6.6. No Material Adverse Effect. Since December 31, 1998, there
has been no event, circumstance or condition which could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower, overtly threatened litigation, action,
proceeding, or labor controversy affecting the Borrower or any of its
Subsidiaries, or any of their respective properties, businesses, assets or
revenues which (i) would contest the consummation of the Transaction or (ii)
could reasonably be expected to have a Material Adverse Effect, except as
disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule. No materially
adverse development has occurred in any litigation, action, labor controversy,
arbitration or governmental investigation or other proceeding disclosed in Item
6.7 ("Litigation") of the Disclosure Schedule.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries, except
those Subsidiaries (i) which are identified in Item 6.8 ("Existing
Subsidiaries") of the Disclosure Schedule, or (ii) which are permitted to have
been acquired in accordance with Section 7.2.5. Each License Subsidiary is a
wholly-owned Subsidiary of the Borrower, and all the Capital Stock of each
License Subsidiary is directly or indirectly owned by the Borrower free and
clear of all Liens, charges or claims (other than any Lien, charge or claim
created by the Security Documents). All Licenses which are directly or
indirectly held by the Borrower or any of its Subsidiaries are owned,
beneficially and of record by a License Subsidiary, free and clear of all Liens,
charges or claims (other than any Lien, charge or claim under the Security
Documents or imposed by the Communications Act).
SECTION 6.9. Ownership of Properties. Each of the Borrower and its
Subsidiaries owns good and marketable title to, or valid leasehold interests in,
all of its properties and assets,
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real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like) other than any Lien, charge or
claim (i) which is permitted under Section 7.2.3 or (ii) which individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
SECTION 6.10. Taxes. Each Obligor has filed all material tax returns
and reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or charges
which are being diligently 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 6.11. Pension and Welfare Plans. Except as disclosed in Item
6.11 ("Employee Benefit Plans") of the Disclosure Schedule, during the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement, no steps have been taken to terminate any Pension Plan, and
no contribution failure has occurred with respect to any Pension Plan sufficient
to give rise to a Lien under section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Pension Plan which might
result in the incurrence by the Borrower or any member of the Controlled Group
of any liability, fine or penalty which could reasonably be expected to have a
Material Adverse Effect. Except as disclosed in Item 6.11 ("Employee Benefit
Plans") of the Disclosure Schedule, neither the Borrower nor any member of the
Controlled Group has any contingent liability with respect to any
post-retirement medical benefits under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA or
other applicable continuation of coverage laws which could reasonably be
expected to have a Material Adverse Effect.
SECTION 6.12. Environmental Warranties. Except as set forth in Item
6.12 ("Environmental Matters") of the Disclosure Schedule or as, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its Subsidiaries
have been, and continue to be, owned or leased by the Borrower or its
Subsidiaries in compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or, to
the knowledge of the Borrower, threatened claims, complaints, notices
or requests for information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of any Environmental
Law, or claims, complaints, notices or inquiries to the Borrower or any
of its Subsidiaries regarding potential liability under any
Environmental Law, in each case which have not been disclosed in
writing and in reasonable detail to the Agents;
(c) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the Borrower
or any of its Subsidiaries;
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(d) the Borrower and its Subsidiaries have been issued and are
in compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary
for their businesses;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or proposed for listing
(with respect to owned property only) on (x) the National Priorities
List pursuant to CERCLA, or (y) on the CERCLIS or on any similar state
list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Borrower or any of its
Subsidiaries;
(g) neither the Borrower nor any Subsidiary of any Borrower
has directly transported or directly arranged for the transportation of
any Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other investigations
which may lead to claims against the Borrower or such Subsidiary
thereof for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the
Borrower or any Subsidiary of the Borrower; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both, are
reasonably likely to give rise to liability under any Environmental
Law.
SECTION 6.13. Regulations U and X. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used for a purpose which violates,
or would be inconsistent with, F.R.S. Board Regulation U or X. Terms for which
meanings are provided in F.R.S. Board Regulation U or X or any regulations
substituted therefor, as from time to time in effect, are used in this Section
with such meanings.
SECTION 6.14. Licenses; License Transfer. The Licenses held by the
Nextel License Subsidiary as of the Closing Date are set forth on Schedule III
and such Licenses are all of the Licenses necessary to construct, install and
develop the Network, and to operate those portions of the Network for which
development has been completed, in the markets listed on Schedule III. Both
before and after giving effect to the License Transfer, (a) the Borrower and its
Subsidiaries have the full use and benefit of all Licenses necessary to
construct, install and develop the Network, and to operate those portions of the
Network for which development has been
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completed, in the markets listed on Schedule III, (b) such Licenses have been
duly issued by the FCC and (c) such Licenses are in full force and effect and
the Nextel License Subsidiary and the Borrower and its Subsidiaries are in
compliance in all material respects with all of the provisions of each such
License held at any time by any of them. The Borrower and the Nextel License
Subsidiary have made all filings with the FCC and any other governmental
authority, regulatory body or other Person which may be necessary or required in
order to consummate the License Transfer within 365 days following the Closing
Date. The provisions of this Section 6.14 are subject to Item 6.15 ("Schedule of
Exceptions") of the Disclosure Schedule.
SECTION 6.15. FCC Compliance. Except as set forth in Item 6.15
("Schedule of Exceptions") of the Disclosure Schedule,
(a) The Nextel License Subsidiary and the Borrower and its
Subsidiaries are in compliance with the Communications Act and all
requirements of the FCC, except where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect.
(b) Neither the Nextel License Subsidiary nor the Borrower nor
any Subsidiary of the Borrower has any knowledge of any investigation,
notice of apparent liability, violation, forfeiture or any other
proceedings (other than proceedings relating to the wireless
communications industries generally) of or before the FCC, which,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(c) No event or group of events has occurred or failed to
occur which (i) results in, or after notice or lapse of time or both
would result in, revocation, suspension, adverse modifications,
non-renewal, forfeiture with respect to, any License or group of
Licenses in any respect which could reasonably be expected to have a
Material Adverse Effect or (ii) affects or could reasonably be expected
in the future to affect any of the rights of the Nextel License
Subsidiary, the Borrower or any License Subsidiary under any License or
group of Licenses held by the Nextel License Subsidiary, the Borrower
or any License Subsidiary in any respect which could reasonably be
expected to have a Material Adverse Effect.
(d) The Nextel License Subsidiary, the Borrower and each
License Subsidiary have duly filed in a timely manner all filings,
reports, applications, documents, instruments and information required
to be filed by any of them under the Communications Act which could
reasonably be expected to have a Material Adverse Effect, and all such
filings were when made (and where required have been supplemented in
order to continue to be) true, correct and complete in any respect
which could reasonably be expected to have a Material Adverse Effect.
(e) Neither the Nextel License Subsidiary nor the Borrower has
any reason to believe that each License held by the Nextel License
Subsidiary, the Borrower or any
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Subsidiary will not be renewed in the ordinary course, except where
non-renewal could not reasonably be expected to have a Material Adverse
Effect.
SECTION 6.16. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrower in
writing to the Agents, the Lead Arranger or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby or with
respect to the Transaction is, and all other such factual information hereafter
furnished by or on behalf of the Borrower to the Agents, the Lead Arranger any
Lender will be, true and accurate in every material respect on the date as of
which such information is dated or certified, the Lead Arrangers and such
Lender, and such information is not, or shall not be, as the case may be,
incomplete by omitting to state any material fact necessary to make such
information in light of the circumstances when made not materially misleading.
All projections furnished to the Agents, the Issuer or any Lender (whether
before or after the Closing Date) have been or will be prepared in good faith on
the basis of reasonable assumptions, it being understood that actual results may
differ from projections.
SECTION 6.17. Solvency. The Transaction (including the incurrence of
the initial Credit Extension hereunder, the execution and delivery by each
Subsidiary Guarantor of the Subsidiary Guaranty and the application of the
proceeds of the Credit Extensions), will not involve or result in any fraudulent
transfer or fraudulent conveyance under the provisions of Section 548 of the
Bankruptcy Code (11 U.S.C. ss. 101 et seq., as from time to time hereafter
amended, and any successor or similar statute) or any applicable state law
respecting fraudulent transfers or fraudulent conveyances. On the Closing Date,
after giving effect to the Transaction and the making of each Credit Extension
made on the Closing Date and after giving effect to the application of the
proceeds of such Credit Extensions, the Borrower and each Subsidiary Guarantor
is Solvent.
SECTION 6.18. Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and equipment containing embedded microchips (including systems
and equipment supplied by others or with which Borrower's systems interface) and
the testing of all such systems and equipment, as so reprogrammed, will be
completed by June 30, 1999, except where the failure to do so could not be
reasonably expected to have a Material Adverse Effect. The cost to the Borrower
of such reprogramming and testing and of the reasonably foreseeable consequences
of year 2000 to the Borrower (including, without limitation, reprogramming
errors and the failure of others' systems or equipment) will not result in a
Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Borrower and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be, sufficient to permit the Borrower to conduct its business
without Material Adverse Effect.
SECTION 6.19. Credit Facility. This Agreement represents the "Credit
Facility" designated by the Parent as the "Credit Facility" for purposes of the
Indenture.
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SECTION 6.20. Interests in Real Property Sufficient for Conduct of
Business. The Borrower and its Subsidiaries own and or lease sufficient
interests in real property for the conduct of the Borrower's business as
presently conducted and as presently proposed to be conducted and no other
interests in real property are necessary for the conduct of such business other
than those the absence of which would not have a Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the
Agents, each Lender and the Issuer that, until all Commitments have terminated,
all Letters of Credit have expired and all monetary Obligations then due have
been paid in full, the Borrower will perform, or cause to be performed, the
obligations set forth in this Section 7.1.
SECTION 7.1.1 Financial Information, Reports, Notices, etc. The
Borrower will furnish, or will cause to be furnished, to each Lender and each
Agent copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters and 90 days after
the end of the fourth Fiscal Quarter of each Fiscal Year of the Parent,
consolidated balance sheets of the Parent and its Subsidiaries as of
the end of such Fiscal Quarter and consolidated statements of earnings
and cash flow of the Borrower and its Subsidiaries for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such Fiscal Quarter, certified by the
chief financial or chief accounting Authorized Officer of the Parent;
(b) as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Parent, a copy of the annual audit
report for such Fiscal Year for the Parent and its Subsidiaries,
including therein consolidated balance sheets of the Parent and its
Subsidiaries as of the end of such Fiscal Year and consolidated
statements of earnings and cash flow of the Parent and its Subsidiaries
for such Fiscal Year, in each case certified (without any Impermissible
Qualification) in a manner acceptable to the Agents and the Required
Lenders by Xxxxxx Xxxxxxxx LLP or other independent public accountants
acceptable to the Agents and the Required Lenders, together with a
report from such accountants (unless the giving of such a certificate
is contrary to accounting practice) containing a computation of, and
showing compliance with, each of the financial ratios and restrictions
contained in clauses (a), (b), (c) and (f) through (k) of Section 7.2.4
and to the effect that, in making the examination necessary for the
signing of such annual report by such accountants, they have not become
aware of any Default that has occurred and is continuing, or, if they
have become aware of such Default, describing such Default and the
steps, if any, being taken to cure it;
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(c) together with the delivery of the financial information
required pursuant to clause (a) and clause (b), a Compliance
Certificate, executed by the chief financial or chief accounting
Authorized Officer of the Borrower, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Agents) compliance with the financial covenants set
forth in Section 7.2.4;
(d) within 60 days after the commencement of each Fiscal Year
of the Borrower, a detailed consolidated budget for such Fiscal Year;
(e) within 30 days after the end of each Fiscal Quarter of the
Borrower, a certificate of an Authorized Officer of the Borrower
setting forth (i) the aggregate number of Subscriber Units whose
service terminated during such Fiscal Quarter, (ii) the aggregate
number of Subscriber Units added during such Fiscal Quarter, (iii) the
aggregate number of Subscriber Units at the end of such Fiscal Quarter,
(iv) revenue for such Fiscal Quarter and (v) the number of Covered POPs
during such Fiscal Quarter;
(f) as soon as possible and in any event within five Business
Days after the occurrence of each Default, a statement of an Authorized
Officer of the Borrower setting forth details of such Default and the
action which the Borrower has taken and proposes to take with respect
thereto;
(g) as soon as possible and in any event within five Business
Days after (i) the occurrence of any adverse development with respect
to any litigation, action, proceeding, or labor controversy described
in Section 6.7 which could reasonably be expected to have a Material
Adverse Effect or (ii) the commencement of any labor controversy,
litigation, action, proceeding of the type described in Section 6.7,
notice thereof and copies of all material documentation relating
thereto;
(h) promptly after the sending or filing thereof, copies of
all reports which the Parent sends to any of its security holders
generally in their capacity as security holders, and all reports and
registration statements which the Parent or any of its Subsidiaries
files with the Securities and Exchange Commission or any national
securities exchange;
(i) promptly upon becoming aware of the institution of any
steps by the Borrower or any other Person to terminate any Pension
Plan, or the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under section
302(f) of ERISA, or the taking of any action with respect to a Pension
Plan which could result in the requirement that the Borrower furnish a
bond or other security to the PBGC or such Pension Plan, or the
occurrence of any event with respect to any Pension Plan which could
result in the incurrence by the Borrower of any material liability,
fine or penalty, or any material increase in the contingent liability
of the Borrower with respect to any post-retirement Welfare Plan
benefit, notice thereof and copies of all material documentation
relating thereto; and
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(j) such other information respecting the condition or
operations, financial or otherwise, of the Parent or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
cause each of its Subsidiaries to, (a) comply in all material respects with all
applicable laws, rules, regulations and orders, except where the failure to so
comply could not reasonably be expected to have a Material Adverse Effect, (b)
maintain and preserve its corporate existence and qualification as a foreign
corporation, except where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect and (c) pay, before the same become
delinquent, 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 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times unless the Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable, except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of its
Material Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses and will, upon request of the
Agents, furnish to the Agents and each Lender at reasonable intervals a
certificate of an Authorized Officer of the Borrower setting forth the nature
and extent of all insurance maintained by the Borrower and its Material
Subsidiaries in accordance with this Section 7.1.4.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Material Subsidiaries to, keep books and records which accurately
reflect all of its business affairs and transactions and permit the Agents, the
Issuer and each Lender or any of their respective representatives, at reasonable
times and intervals, to discuss its financial matters with its officers and,
after reasonable notice to the Borrower and provision of an opportunity for the
Borrower to participate in such discussion, its independent public accountant
(and the Borrower hereby authorizes such independent public accountant to
discuss the Borrower's financial matters with each Lender or its representatives
whether or not any representative of the Borrower is present) and upon
reasonable notice, but, unless an Event of Default shall have occurred and be
continuing, not more than once in each Fiscal Year, to visit all of its offices
and to examine (and, at the expense of the Borrower, photocopy extracts from)
any of its books or other corporate records. The Borrower shall pay any fees of
such independent public accountant
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incurred in connection with any Agent's or any Lender's exercise of its rights
pursuant to this Section.
SECTION 7.1.6. Environmental Covenant. The Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(b) promptly notify the Agents and provide copies upon receipt
of all written claims, complaints, notices or inquiries relating to the
environmental condition of its facilities and properties or compliance
with Environmental Laws which, singularly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; and
(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming, after the
Closing Date, a Subsidiary of the Borrower, or upon the Borrower or any
Subsidiary of the Borrower acquiring additional Capital Stock of any existing
Subsidiary, the Borrower shall promptly notify the Agents of such acquisition,
and
(a) the Borrower shall promptly cause such Subsidiary to
execute and deliver to the Administrative Agent, with counterparts for
each Lender, a supplement to the Subsidiary Guaranty and a supplement
to the Subsidiary Security and Pledge Agreement (and, if such
Subsidiary owns any real property having a value in excess of
$1,000,000, a Mortgage), together with acknowledgment copies of Uniform
Commercial Code financing statements (Form UCC-1) executed and
delivered by the Subsidiary naming the Subsidiary as the debtor and the
Administrative Agent as the secured party, or other similar instruments
or documents, filed under the Uniform Commercial Code and any other
applicable recording statutes, in the case of real property, of all
jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interest of the
Administrative Agent pursuant to the Subsidiary Security and Pledge
Agreement or a Mortgage, as the case may be (other than the perfection
of security interests in motor vehicles owned as of the date such
entity becomes a Subsidiary); and
(b) the Borrower shall promptly deliver, or cause to be
delivered, to the Administrative Agent under a Security Agreement
certificates (if any) representing all of the issued and outstanding
shares of Capital Stock of such Subsidiary owned by the
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Borrower or any Subsidiary of the Borrower, as the case may be, along
with undated stock powers for such certificates, executed in blank, or,
if any securities subject thereto are uncertificated securities,
confirmation and evidence satisfactory to the Agents that appropriate
book entries have been made in the relevant books or records of a
securities intermediary or the issuer of such securities, as the case
may be, or other appropriate steps shall have been taken under
applicable law resulting in the perfection of the security interest
granted in favor of the Administrative Agent pursuant to the terms of a
Security Agreement;
together, in each case, with such opinions, in form and substance and from
counsel reasonably satisfactory to the Agents, as the Agents may reasonably
request; provided, however, that notwithstanding the foregoing, no Non-U.S.
Subsidiary shall be required to execute and deliver a Mortgage, a supplement to
the Subsidiary Guaranty or a supplement to the Subsidiary Security and Pledge
Agreement, nor will the Borrower or any Subsidiary of the Borrower be required
to deliver in pledge pursuant to a Security Agreement in excess of 65% of the
total combined voting power of all classes of Capital Stock of a Non-U.S.
Subsidiary entitled to vote.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property.
(a) Prior to entering into any new lease of real property or
renewing any existing lease of real property following the Closing
Date, the Borrower shall, and shall cause each of its U.S. Subsidiaries
to, use all commercially reasonable efforts (which shall not require
the expenditure of cash or the making of material concessions under the
relevant lease) to deliver to the Administrative Agent a Waiver
executed by the lessor of any real property that is to be leased by the
Borrower or such U.S. Subsidiary for a term in excess of one year in
any state which by statute grants such lessor a "landlord's" (or
similar) Lien which is superior to the Administrative Agent's, to the
extent the value of any personal property of the Borrower or its U.S.
Subsidiaries to be held at such leased property exceeds (or it is
anticipated that the value of such personal property will, at any point
in time during the term of such leasehold term, exceed) $1,000,000.
(b) In the event that the Borrower or any of its U.S.
Subsidiaries shall acquire any real property having a value as
determined in good faith by the Administrative Agent in excess of
$1,000,000 in the aggregate, the Borrower or the applicable U.S.
Subsidiary shall, promptly after such acquisition, execute a Mortgage
and provide the Administrative Agent with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings
of such Mortgage as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable effectively to
create a valid, perfected first priority Lien, subject to
Liens permitted by Section 7.2.3, against the properties
purported to be covered thereby;
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(ii) mortgagee's title insurance policies in favor of
the Agents and the Lenders in amounts and in form and
substance and issued by insurers, reasonably satisfactory to
the Agents, with respect to the property purported to be
covered by such Mortgage, insuring that title to such property
is marketable and that the interests created by the Mortgage
constitute valid first Liens thereon free and clear of all
defects and encumbrances other than as permitted under Section
7.2.3 or as approved by the Agents, and such policies shall
also include, to the extent available, a revolving credit
endorsement and such other endorsements as the Agents shall
reasonably request and shall be accompanied by evidence of the
payment in full of all premiums thereon; and
(iii) such other approvals, opinions, or documents as
the Agents may reasonably request; and
(c) In accordance with the terms and provisions of this
Agreement and the other Loan Documents, provide the Administrative
Agent with evidence of all recordings and filings as may be necessary
or, in the reasonable opinion of the Administrative Agent, desirable to
create a valid, perfected first priority Lien, subject to the Liens
permitted by Section 7.2.3, against all property acquired after the
Closing Date (excluding motor vehicles, leases of motor vehicles and
leases of real property) and an executed Perfection Certificate.
SECTION 7.1.9. Use of Proceeds, etc. The Borrower shall deposit all of
the proceeds of the Loans in the Cash Account and following the release of such
funds from the Cash Account pursuant to the Borrower Security and Pledge
Agreement and the Cash Collateral Agreement shall
(a) apply the proceeds of the Loans to fund general corporate
and working capital needs of the Borrower and its Subsidiaries; and
(b) use Letters of Credit for working capital and general
corporate purposes of the Borrower and its Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within twelve months following the
Closing Date, the Administrative Agent shall have received evidence satisfactory
to it that the Borrower and its Subsidiaries have entered into interest rate
swap, cap, collar or similar arrangements designed to protect the Borrower and
its Subsidiaries against fluctuations in interest rates with respect to at least
33-1/3% of the aggregate principal amount of the Term Loans for a period of at
least three years from the Closing Date with terms reasonably satisfactory to
the Agents.
SECTION 7.1.11 Undertaking. The Borrower will cause the License
Transfer to be completed within 365 days following the Closing Date.
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SECTION 7.1.12. Landlord Consents. Within 90 days after the Closing
Date, the Borrower shall deliver to each landlord or licensor under each lease,
sublease or license listed on Item 7.1.12 of the Disclosure Schedule
(collectively, the "Leased Properties") a Waiver in a form reasonably
satisfactory to the Agents. Thereafter, the Borrower shall use good faith
efforts (which shall not require any material expenditure of cash or the making
of material concessions under the relevant lease, sublease or license) to
negotiate with said landlords or licensors for the execution and delivery to the
Agents of a Waiver in a form reasonably satisfactory to the Agents. With respect
to any real property leased by or licensed to the Borrower or any Subsidiary of
the Borrower subsequent to the Closing Date, the Borrower shall use good faith
efforts (which shall not require any material expenditure of cash or the making
of material concessions under the relevant lease, sublease or license) to obtain
from the landlord or licensor under such new lease or license an executed
Waiver, in a form reasonably satisfactory to the Agents.
SECTION 7.1.13 Year 2000. The Borrower shall take all action necessary
to assure that its computer based systems are able to effectively process data
including dates on and after January 1, 2000, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect. At the
request of the Agents or any Lender, the Borrower shall provide the Agents or
such Lender, as the case may be, with assurance reasonably acceptable to the
Agents or such Lender, as the case may be, of the Borrower's year 2000
capability.
SECTION 7.1.14. Termination Statements. Within 180 days after the
Closing Date, the Borrower shall have delivered to the Administrative Agent
executed copies of proper Uniform Commercial Code (Form UCC-3) termination
statements necessary to release all Liens and other rights of any Person
identified in a schedule to be provided by the Agents to the Borrower as soon as
possible after the Closing Date in any collateral described in the Borrower
Security and Pledge Agreement previously granted to such Person, together with
such other Uniform Commercial Code (Form UCC-3) termination statements as the
Administrative Agent may reasonably request from the Borrower.
SECTION 7.2. Negative Covenants. The Borrower agrees with the Agents,
the Issuer and each Lender that, until all Commitments have terminated, all
Letters of Credit have expired and all monetary Obligations then due have been
paid in full, the Borrower will perform, or will cause to be performed, the
obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except for
any business in which the Borrower and its Subsidiaries are engaged on the date
hereof and such businesses as may be incidental, similar or related thereto
(including the Borrower's Investments in Permitted Joint Ventures).
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
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(a) Indebtedness in respect of the Credit Extensions and other
Obligations;
(b) Indebtedness in an aggregate principal amount not to
exceed $60,000,000 at any time outstanding which is incurred by the
Borrower or any of its Subsidiaries to a vendor (or its Affiliates) of
any assets permitted to be acquired pursuant to Section 7.2.7 to
finance its acquisition of such assets;
(c) Indebtedness existing as of the Closing Date which is
identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure
Schedule, and refinancings and replacements thereof in a principal
amount not exceeding the principal amount of the Indebtedness so
refinanced or replaced and with an average life to maturity of not less
than the then average life to maturity of the Indebtedness so
refinanced or replaced;
(d) Hedging Obligations of the Borrower or any of its
Subsidiaries in respect of the Credit Extensions;
(e) intercompany Indebtedness of (x) any Subsidiary Guarantor
owing to the Borrower or any of its Subsidiaries or (y) the Borrower to
any of its Subsidiaries, which Indebtedness (i) shall be either
evidenced by one or more promissory notes, if any, in form and
substance satisfactory to the Agents which have been duly executed and
delivered to (and indorsed to the order of) the Administrative Agent in
pledge pursuant to a Security Agreement or recorded on the relevant
books or records of the Borrower or such Subsidiary Guarantor as an
account receivable in which a security interest has been granted in
favor of the Administrative Agent pursuant to the terms of a Security
Agreement, and (ii) shall not be forgiven or otherwise discharged for
any consideration other than payment (Dollar for Dollar) in cash unless
the Agents otherwise consent;
(f) Indebtedness in respect of Capitalized Lease Liabilities
to the extent permitted by clause (a) of Section 7.2.7;
(g) Indebtedness (other than Indebtedness described in clause
(f) above) of the Borrower or any of its Subsidiaries incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capitalized Lease Liabilities and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity or decreased weighted average
life thereof; provided that such Indebtedness is incurred prior to or
within 180 days after such acquisition or the completion of such
construction or improvement and shall not exceed $2,000,000 in
aggregate principal amount at any time outstanding and, provided,
further, that the aggregate principal amount of Indebtedness permitted
to be outstanding at any time by this clause (g) shall not be credited
against or reduce the amount of Indebtedness permitted to be
outstanding at any time under clause (b) of this Section 7.2.2;
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(h) other unsecured Indebtedness of the Borrower and its
Subsidiaries in an aggregate amount at any time outstanding not to
exceed $2,000,000; and
(i) unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services, and surety
and performance bonds and similar instruments, but excluding
Indebtedness incurred through the borrowing of money or Contingent
Liabilities);
provided, however, that no Indebtedness otherwise permitted by clause (g) or (h)
may be incurred if, immediately before or after giving effect to the incurrence
thereof, any Default shall have occurred and be continuing, and provided,
further, however, that all such Indebtedness of the type described in clause
(e)(y) that is owed to Subsidiaries which are not party to the Subsidiary
Guaranty, shall be subordinated, in writing, to the Obligations upon terms
satisfactory to the Agents.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations or any Hedging
Obligations owed to any Lender or any Affiliate of any Lender granted
pursuant to any Loan Document;
(b) Liens granted prior to the Closing Date to secure payment
of Indebtedness of the type permitted and described in clause (c) of
Section 7.2.2;
(c) Liens granted to secure payment of Indebtedness of the
type permitted and described in clauses (b) and (g) of Section 7.2.2;
provided that (i) each such Lien attaches only those assets acquired
with the proceeds of such Indebtedness (or other assets acquired with
proceeds of other Indebtedness to such Lender) and (ii) the principal
amount of such Indebtedness does not exceed 100% of the cost of the
relevant property;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary of the Borrower; provided
that (i) such security interests secure Indebtedness permitted by
clause (g) of Section 7.2.2 , (ii) such security interests and the
Indebtedness secured thereby are incurred prior to or within 180 days
after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed
100% of the cost of acquiring, constructing or improving such fixed or
capital assets, and (iv) such security interests shall not apply to any
other property or assets of the Borrower or any Subsidiary of the
Borrower (or other assets acquired with proceeds of other Indebtedness
to such Lender);
(e) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on the books of such Person;
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(f) Liens of carriers, warehousemen, mechanics, materialmen,
contractors, laborers and landlords or other similar Liens (i) incurred
in the ordinary course of business for sums not overdue for a period of
more than 30 days, or (ii) being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on the books of such Person;
(g) Liens incurred in the ordinary course of business (i) in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, (ii) to secure performance
of tenders, bids, statutory obligations, leases and contracts (other
than for borrowed money) entered into in the ordinary course of
business or (iii) to secure obligations on surety or appeal bonds,
performance or return-of-money bonds or other obligations of a similar
nature;
(h) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance maintained with responsible insurance companies;
(i) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and fixtures
which do not materially detract from the value or materially impair the
use by the Borrower or any such Subsidiary in the ordinary course of
its business of the property subject thereto;
(j) licenses, sublicenses, leases or subleases granted by the
Borrower or any of its Subsidiaries to any other Person in the ordinary
course of business;
(k) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by Section 7.2.2, in
each case in favor of the trustee under such indenture and securing
only obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof; and
(l) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the UCC or similar provisions
of applicable law in the ordinary course of business, covering only the
goods sold and securing only the unpaid purchase price for such goods
and related expenses.
Any term or provision of this Section to the contrary notwithstanding,
unless otherwise consented to by the Required Lenders the Borrower will not
permit any License Subsidiary to, and no such License Subsidiary shall, create,
incur, assume or suffer to exist any Lien upon or in any of its property
(including the Licenses or Capital Stock of such License Subsidiary) other than
as described in clause (a) above.
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SECTION 7.2.4. Financial Covenants.
I. For the period from and including the Closing Date through December
31, 2001:
(a) Senior Debt to Total Capital. The ratio of Senior Debt to
Total Capital as of the end of any Fiscal Quarter occurring during the
period from and including the Closing Date through December 31, 2001
shall not exceed .30:1.00.
(b) Total Debt to Total Capital. The ratio of Total Debt to
Total Capital as of the end of any Fiscal Quarter occurring during the
period from and including the Closing Date through December 31, 2001
shall not exceed .80:1.00.
II. For the period from and including the first Fiscal Quarter ending
after the Closing Date through the end of the third Fiscal Quarter of
the 2001 Fiscal Year:
(c) Aggregate Service Revenue. Aggregate Service Revenue for
any Fiscal Quarter set forth below shall not be less than the amount of
Aggregate Service Revenue set forth opposite such date:
Date Aggregate Service Revenue
3/31/99 $ 1,800,000
6/30/99 $ 3,000,000
9/30/99 $ 4,500,000
12/31/99 $ 5,800,000
3/31/00 $ 7,800,000
6/30/00 $11,500,000
9/30/00 $15,000,000
12/31/00 $20,000,000
3/31/01 $23,000,000
6/30/01 $27,000,000
9/30/01 $32,000,000
III. For the period from and including the first Fiscal Quarter ending
after the Closing Date through the end of the first Fiscal Quarter of
the 2003 Fiscal Year:
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Subscriber Units. The number of Subscriber Units on or after
any date set forth below shall not be less than the number of
Subscriber Units set forth opposite such date:
Date Subscriber Units
3/31/99 12,500
6/30/99 14,700
9/30/99 23,000
12/31/99 30,000
3/31/00 45,000
6/30/00 72,000
9/30/00 95,000
12/31/00 120,000
3/31/01 140,000
6/30/01 170,000
9/30/01 200,000
12/31/01 235,000
3/31/02 270,000
6/30/02 300,000
9/30/02 345,000
12/31/02 382,000
3/31/03 420,000
Covered POPs. As of each date set forth below, the number of
Covered POPs shall not be less than the number set forth opposite such
date:
Date Covered POPs
3/31/99 3,700,000
6/30/99 3,800,000
9/30/99 3,800,000
12/31/99 4,600,000
3/31/00 9,000,000
6/30/00 10,707,000
9/30/00 13,031,000
12/31/00 14,940,000
3/31/01 15,400,000
6/30/01 16,185,000
9/30/01 18,600,000
12/31/01 and thereafter 22,000,000
IV. For the period from and including the fourth Fiscal Quarter of the
2001 Fiscal Year through the end of the first Fiscal Quarter of the
2003 Fiscal Year:
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(f) Senior Debt to Annualized Adjusted EBITDA. The ratio of
(i) Senior Debt outstanding on the last day of any Fiscal Quarter set
forth below to (ii) Annualized Adjusted EBITDA for the period ending on
such date shall not exceed the ratio set forth opposite such date:
Fiscal Quarter Ratio of Senior Debt to
Ending On Annualized Adjusted EBITDA
12/31/01 4.75:1.00
3/31/02 3.50:1.00
6/30/02 3.50:1.00
9/30/02 3.00:1.00
12/31/02 3.00:1.00
3/31/03 2.50:1.00
(g) Total Debt to Annualized Adjusted EBITDA. The ratio of (i)
Total Debt outstanding on the last day of any Fiscal Quarter set forth
below to (ii) Annualized Adjusted EBITDA for the period ending on such
date shall not exceed the ratio set forth opposite such date:
Fiscal Quarter Ratio of Total Debt to
Ending On Annualized Adjusted EBITDA
12/31/01 20.50:1.00
3/31/02 15.25:1.00
6/30/02 10.50:1.00
9/30/02 10.00:1.00
12/31/02 9.00:1.00
3/31/03 8.00:1.00
V. For the period from and including the second Fiscal Quarter of the
2003 Fiscal Year through the Stated Maturity Date:
(h) Senior Debt to Annualized EBITDA. The ratio of (i) Senior
Debt outstanding on the last day of any Fiscal Quarter set forth below
to (ii) Annualized EBITDA for the period ending on such date shall not
exceed the ratio set forth opposite such date:
Fiscal Quarter Ratio of Senior Debt to
Ending On Annualized EBITDA
6/30/03 4.50:1.00
9/30/03 4.00:1.00
12/31/03 3.50:1.00
3/31/04 3.00:1.00
6/30/04 and thereafter 2.50:1.00
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(i) Total Debt to Annualized EBITDA. The ratio of (i) Total
Debt outstanding on the last day of any Fiscal Quarter set forth below
to (ii) Annualized EBITDA for the period ending on such date shall not
exceed the ratio set forth opposite such date:
Fiscal Quarter Ratio of Total Debt to
Ending On Annualized EBITDA
6/30/03 20.50:1.00
9/30/03 18.50:1.00
12/31/03 16.50:1.00
3/31/04 13.00:1.00
6/30/04 10.00:1.00
9/30/04 10.00:1.00
12/31/04 8.50:1.00
3/31/05 7.00:1.00
6/30/05 6.00:1.00
9/30/05 5.75:1.00
12/31/05 5.50:1.00
3/31/06 and thereafter 5.00:1.00
(j) Interest Coverage Ratio. The ratio of (i) Annualized
EBITDA on the last day of any Fiscal Quarter set forth below to (ii)
Consolidated Cash Interest Expense for such period shall not be less
than the ratio set forth opposite such date or period:
Date or Period Interest Coverage Ratio
6/30/03 to 12/31/04 1.10:1.00
3/31/05 1.15:1.00
6/30/05 to 12/31/05 1.25:1.00
3/31/06 to 6/30/06 1.75:1.00
9/30/06 and thereafter 2.00:1.00
(k) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio as of the end of the any Fiscal Quarter set forth below shall not
be less than the ratio set forth opposite such period:
Period Fixed Charge Coverage Ratio
Coverage Ratio
6/30/03 to 3/31/05 1.00:1.00
6/30/05 to 9/30/05 1.10:1.00
12/31/05 and thereafter 1.25:1.00
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(l) Cash Account. The balance maintained in the Cash Account
at all times until the earlier to occur of (i) the effectiveness of the
License Transfer and (ii) 395 days after the Closing Date shall not be
less than the Required Balance.
SECTION 7.2.5. Investments. The Borrower will not, and will not permit
any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Closing Date and identified in
Item 7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7;
(e) Investments by the Borrower in any of its Subsidiaries (or
any Person which, after making an Investment, becomes a Subsidiary), or
by any such Subsidiary in any Subsidiary of the Borrower, by way of
contributions to capital;
(f) Investments in the form of loans to officers, directors
and employees of the Borrower and its Subsidiaries in an aggregate
amount at any time outstanding not to exceed $2,500,000 in cash;
(g) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of and other disputes with customers and
suppliers arising in the ordinary course of business;
(h) Investments in Permitted Joint Ventures; or
(i) additional Investments in an aggregate amount at any time
outstanding not to exceed $2,000,000; provided, that the amount of any
such additional Investment outstanding at any time shall be deemed to
be equal to the amount of such Investment on the date made, minus the
sum of amounts received in cash in respect of such Investment
representing return of capital, repayment of loans and return on
capital (including interest and dividends) up to the amount of such
Investment on the date made;
provided, however, that
(j) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment"
may continue to be held for no more than 180 days following the date
that such Investment no longer meets the requirements of such
definition; and
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(k) no Investment otherwise permitted by clause (e) (other
than an Investment in a wholly-owned Subsidiary) or (h) shall be
permitted to be made if, immediately before or after giving effect
thereto, any Default shall have occurred and be continuing, unless such
party has irrevocably committed to making such Investment.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
Closing Date, the Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, declare, pay or make any dividend, distribution or
exchange (in cash, property or obligations) or other payment on or in respect of
any Senior Notes, any shares of Preferred Stock of the Parent or any shares of
any class of Capital Stock (now or hereafter outstanding) of the Borrower or on
any warrants, options or other rights with respect to any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower (other than (i)
dividends or distributions payable in common stock or warrants to purchase its
common stock, (ii) splits or reclassifications of its Capital Stock into
additional or other shares of a similar class of its Capital Stock (provided
that such other class of Capital Stock (x) is not (by its terms, by the terms of
any security into which it is convertible or exchangeable or otherwise)
redeemable, at the option of the holder thereof, on or prior to February 8, 2010
or convertible or exchangeable for debt securities and (y) does not require the
payment of dividends in cash) and (iii) in the case of Preferred Stock,
dividends or distributions payable in additional Preferred Stock) or apply, or
permit any of its Subsidiaries to apply, any of its funds, property or assets to
the payment, purchase, redemption, exchange, sinking fund or other retirement
of, or agree or permit any of its Subsidiaries to pay, purchase, redeem or
exchange, any Senior Notes or any shares of Preferred Stock of the Parent or any
shares of any class of Capital Stock (now or hereafter outstanding) of the
Borrower, or warrants, options or other rights with respect to any shares of
Preferred Stock of the Parent or any shares of any class of Capital Stock (now
or hereafter outstanding) of the Borrower (the foregoing prohibited acts are
herein collectively referred to as "Restricted Payments"); provided, however,
that notwithstanding the foregoing provisions,
(a) so long as (A) no Default shall have occurred and be
continuing on the date such Restricted Payment is declared or to be
made, nor would a Default result from the making of such Restricted
Payment, (B) after giving effect to the making of such Restricted
Payment the Parent and its Subsidiaries shall be in pro forma
compliance with the covenants set forth in Section 7.2.4 for the most
recent full Fiscal Quarter immediately preceding the date of the
payment of such Restricted Payment for which relevant financial
information has been delivered pursuant to clause (a) or (b) of Section
7.1.1, and (C) an Authorized Officer of the Borrower shall have
delivered a certificate to the Agents in form and substance
satisfactory to the Agents (including a calculation of compliance with
the covenants set forth in Section 7.2.4) certifying as to the accuracy
of clauses (A) and (B) above, the Borrower shall be permitted to pay
cash dividends to the Parent to the extent necessary to enable the
Parent to
(i) repurchase, redeem or otherwise acquire or retire
for value any common stock of the Parent, or any warrant,
option or other right to acquire common stock of the Parent,
from former employees or directors of the Parent or any
Subsidiary for consideration not to exceed (x) $500,000 in the
aggregate in any Fiscal Year (with unused amounts in any
Fiscal Year being carried forward to
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subsequent Fiscal Years), and (y) in the case of any Itemized
Executive, $2,000,000 per Itemized Executive (plus the amount
of any proceeds of any key man life insurance received by the
Borrower or any Subsidiary in respect of such Itemized
Executive) in any Fiscal Year up to an aggregate amount not to
exceed $5,000,000 in any Fiscal Year; provided, that the
aggregate amount of all such repurchases made pursuant to this
clause (i) shall not exceed $17,000,000 over the term of this
Agreement (excluding the amount of any proceeds of any key man
life insurance received by the Borrower or any Subsidiary in
respect of any Itemized Executive);
(ii) pay cash interest on the Senior Notes; and
(b) the Borrower shall be permitted to make Restricted
Payments to the Parent in amounts required for the Parent to pay when
due income and franchise taxes and other fees and expenses required to
maintain its corporate existence and satisfy its reporting and
financial obligations and to pay out-of-pocket costs, operating
expenses and other amounts required to be paid by the Parent during
such Fiscal Year.
SECTION 7.2.7. Capital Expenditures, etc.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, make or commit to make Capital Expenditures in any
Fiscal Year set forth below in excess of the aggregate amount set forth
opposite such Fiscal Year:
Fiscal Year Amount
1999 $275,000,000
2000 $200,000,000
2001 $110,000,000
2002 $ 50,000,000
2003 $ 60,000,000
2004 $ 70,000,000
2005 $ 80,000,000
2006 and each Fiscal Year $ 90,000,000
thereafter
provided, however, that to the extent the amount of Capital
Expenditures permitted to be made in any Fiscal Year pursuant to this
Section 7.2.7 exceeds the aggregate amount of Capital Expenditures
actually made during such Fiscal Year, up to 75% of such excess amount
may be carried forward to (but only to) the next succeeding Fiscal Year
(any such amount to be certified by the Borrower to the Administrative
Agent in the Compliance Certificate delivered for the last Fiscal
Quarter of such Fiscal Year, and any such amount carried forward to a
succeeding Fiscal Year shall be deemed to be used prior to the Borrower
and its Subsidiaries using the amount of Capital Expenditures permitted
by this Section 7.2.7 without giving effect to such carry-forward) and
provided, further, that the amount of Capital Expenditures permitted to
be made in the 1999 Fiscal Year shall not include the Motorola
Contribution or the reimbursement payment to Nextel in an amount of
approximately $115,300,000 in respect of operational networks and other
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infrastructure in Hawaii, New York and other markets contributed by
Nextel to the Parent and further contributed to the Borrower on the
Closing Date.
(b) The parties acknowledge and agree that the permitted
Capital Expenditure level set forth in clause (a) above shall be
exclusive of the amount of Capital Expenditures actually made with cash
equity capital contributions made, directly or indirectly, by any
Person other than the Borrower and its Subsidiaries, after the Closing
Date to the Borrower or any of its Subsidiaries and specifically
identified in a certificate delivered by an Authorized Officer of the
Borrower to the Agents prior to the time such capital contribution is
made.
SECTION 7.2.8. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other corporation, or purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any division
thereof) except
(a) any such Subsidiary (other than the License Subsidiary)
may liquidate or dissolve voluntarily into, and may merge with and
into, the Borrower (so long as the Borrower is the surviving
corporation of such combination or merger) or any other Subsidiary, and
the assets or stock of any Subsidiary may be purchased or otherwise
acquired by the Borrower or any other Subsidiary; provided that,
notwithstanding the above, a Subsidiary may only liquidate or dissolve
into, or merge with and into, another Subsidiary of the Borrower if,
after giving effect to such combination or merger, the Borrower
continues to own (directly or indirectly), and the Administrative Agent
continues to have pledged to it pursuant to a Security Agreement, a
percentage of the issued and outstanding shares of Capital Stock (on a
fully diluted basis) of the Subsidiary surviving such combination or
merger that is equal to or in excess of the percentage of the issued
and outstanding shares of Capital Stock (on a fully diluted basis) of
the Subsidiary that does not survive such combination or merger that
was (immediately prior to the combination or merger) owned by the
Borrower or pledged to the Administrative Agent; and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may purchase all or substantially all of the assets of any
Person (or any division thereof) not then a Subsidiary, or acquire such
Person by merger, if permitted (without duplication) pursuant to
Section 7.2.7 to be made as a Capital Expenditure or if permitted
(without duplication) pursuant to Section 7.2.5 to be made as an
Investment.
SECTION 7.2.9. Asset Dispositions, etc. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
any of its assets, whether now owned or hereafter acquired (including accounts
receivable and Capital Stock of Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease,
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contribution or other conveyance of all or a substantial part of the
Borrower's and its Subsidiaries' assets, taken as a whole), is of
obsolete or worn out property or is no longer useful in the business of
the Borrower, (ii) permitted by Section 7.2.8, or (iii) between the
Borrower and one of its Subsidiaries or between Subsidiaries of the
Borrower;
(b) such sale, transfer, lease, contribution or conveyance
constitutes (i) an Investment permitted under Section 7.2.5, (ii) a
Lien permitted under Section 7.2.3 or (iii) a License Exchange;
provided, however, that the aggregate value of all Licenses exchanged
for Licenses from a third party pursuant to clause (c) of the
definition of "License Exchange" shall not exceed $20,800,000; or
(c) (i) such sale, transfer, lease, contribution or conveyance
of such assets is for fair market value and the consideration consists
solely of cash, (ii) the Net Disposition Proceeds received from such
assets, together with the Net Disposition Proceeds of all other assets
sold, transferred, leased, contributed or conveyed pursuant to this
clause (c) since the Closing Date, does not exceed (individually or in
the aggregate) $50,000,000 over the term of this Agreement and (iii) an
amount equal to the Net Disposition Proceeds generated from such sale,
transfer, lease, contribution or conveyance is applied to prepay the
Loans pursuant to the terms of clause (d) of Section 3.1.1 and Section
3.1.2.
Any term or provision of this Section to the contrary notwithstanding,
unless otherwise consented to by the Required Lenders (including pursuant to the
NWIP Undertaking) or unless the consent of the Required Lenders is not required
pursuant to the NWIP Undertaking, the Borrower will not permit any License
Subsidiary to, and no such License Subsidiary shall, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or other rights with
respect to, any of its assets (including the Licenses or Capital Stock of such
License Subsidiary).
SECTION 7.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, the Borrower will not, and will not
permit any of its Subsidiaries to, consent to any amendment, supplement,
amendment and restatement, waiver or other modification of any of the terms or
provisions contained in, or applicable to, the Preferred Stock (or any charter
provisions relating thereto), any Senior Discount Notes (including any agreement
or indenture related thereto or to the Senior Discount Note Issuance) or any
Transaction Document or any schedules, exhibits or agreements related thereto,
in each case which would (i) adversely affect the rights or remedies of the
Lenders or the Borrower's or any other Obligor's legal ability or legal right or
power to perform its respective material obligations hereunder or under any Loan
Document to which it is a party, (ii) decrease the amount of Committed Equity
contributed in respect of the Transaction or (iii) increase the Borrower's or
any of its Subsidiaries' obligations or liabilities, contingent or otherwise and
such increase could reasonably be expected to have a Material Adverse Effect.
SECTION 7.2.11. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
(other than another Obligor) unless such arrangement or contract is fair and
equitable to the Borrower or such Subsidiary and is an arrangement or
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contract of the kind which would be entered into by a prudent Person in the
position of the Borrower or such Subsidiary with a Person which is not one of
its Affiliates; provided, however, that the Borrower and its Subsidiaries (a)
may enter into and perform their obligations under the Transaction Documents to
which each is a party as of the Closing Date, (b) may enter into any transaction
involving the issuance of equity securities, employment agreements or payment of
directors' fees and (c) may enter into any transaction which is approved by a
majority of the disinterested directors of the Borrower.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement prohibiting
(i) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired
(other than in the case of any assets acquired with the proceeds of any
Indebtedness permitted under clause (f) of Section 7.2.2 or subject to
Capitalized Lease Liabilities permitted under such clause (f),
customary limitations and prohibitions contained in such Indebtedness),
or (ii) the ability of the Borrower or any other Obligor to amend or
otherwise modify this Agreement or any other Loan Document; or
(b) any Subsidiary from making any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments
of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
SECTION 7.2.13. Liabilities of License Subsidiary. The Borrower will
not permit any License Subsidiary to incur, assume or permit to exist any
liabilities (other than under the Subsidiary Guaranty and the Subsidiary
Security Agreement, the Communications Act and taxes and other liabilities
incurred in the ordinary course in order to maintain its existence) or to engage
in any business or activities other than holding of Licenses.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall
default in the payment or prepayment when due of any principal of any Loan, (b)
the Borrower shall default in the payment when due of any Reimbursement
Obligation or deposit of cash collateral for purposes pursuant to Section 2.6.4,
or (c) the Borrower or any other Obligor shall default (and such default shall
continue unremedied for a period of three Business Days) in the payment when
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due of any interest or fee with respect to the Loans or Commitments or, on
demand after presentation of appropriate backup documentation, of any other
Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrower or any other Obligor to the Agents, the Issuer,
the Lead Arranger or any Lender for the purposes of or in connection with this
Agreement or any such other Loan Document (including any certificates delivered
pursuant to Article V) is or shall be incorrect when made in any material
respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any of its
obligations under clause (f) of Section 7.1.1, Sections 7.1.9, 7.1.10, 7.1.11,
the first sentence of 7.1.12 or Section 7.2.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. The
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to the Borrower by the
Administrative Agent at the direction of the Required Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its Material Subsidiaries
or any other Obligor having a principal amount, individually or in the
aggregate, in excess of $10,000,000, or a default shall occur in the performance
or observance of any obligation or condition with respect to such Indebtedness
if the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause such Indebtedness to become due and
payable prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $10,000,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against the Borrower or any of its Material Subsidiaries or any
other Obligor and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or
(b) 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.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan:
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(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrower or any such member
could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $10,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Control of the Borrower. Any Change in Control shall
occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of its
Material Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for the Borrower
or any of its Material Subsidiaries or any other Obligor or any
property of any thereof, or make a general assignment for the benefit
of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of
its Material Subsidiaries or any other Obligor or for a substantial
part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within 60 days,
provided that the Borrower, each Material Subsidiary and each other
Obligor hereby expressly authorizes the Agents, the Issuer and each
Lender to appear in any court conducting any relevant proceeding during
such 60- day period to preserve, protect and defend their rights under
the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or any
of its Material Subsidiaries or any other Obligor, and, if any such
case or proceeding is not commenced by the Borrower or such Material
Subsidiary or such other Obligor, such case or proceeding shall be
consented to or acquiesced in by the Borrower or such Material
Subsidiary or such other Obligor or shall result in the entry of an
order for relief or shall remain for 60 days undismissed; provided that
the Borrower, each Material Subsidiary and each other Obligor hereby
expressly authorizes the Agents, the Issuer and each Lender to appear
in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan
Documents; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
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SECTION 8.1.10. Impairment of Security, etc. (a) Any Loan Document, or
any Lien granted thereunder, shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or cease to be the legally
valid, binding and enforceable obligation of any Obligor party thereto; (b) the
Borrower, any other Obligor or any other party shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or (c) any Lien securing any Obligation shall, in whole or in
part, cease to be a perfected first priority Lien, subject only to those
exceptions expressly permitted by such Loan Document except to the extent any
event referred to above (a) relates to assets of the Borrower or any of its
Subsidiaries which are immaterial, (b) results from the failure of the
Administrative Agent to maintain possession of certificates representing
securities pledged under any Security Agreement or to file continuation
statements under the Uniform Commercial Code of any applicable jurisdiction or
(c) is covered by a lender's title insurance policy and the relevant insurer
promptly after the occurrence thereof shall have acknowledged in writing that
the same is covered by such title insurance policy.
SECTION 8.1.11. Licenses. The FCC shall terminate, revoke or fail to
renew one or more Licenses, which individually or in the aggregate are material,
of the Borrower or its Subsidiaries, taken as a whole.
SECTION 8.1.12. Rights to Use. The Borrower's right to use the "Nextel"
brand name or national switching infrastructure pursuant to the Trademark
License Agreement and the Switch Sharing Agreement with Nextel or to acquire
equipment incorporating the "iDEN" technology pursuant to the Infrastructure
Equipment Purchase Agreement shall terminate prior to the stated expiration
thereof, unless in either case such termination could not reasonably be expected
to have a Material Adverse Effect because the parties have entered into
replacement or successor agreements with respect thereto which are reasonably
satisfactory to the Agents, or any default or termination of any rights under
any material agreements, which occurrence or termination could reasonably be
expected to have a Material Adverse Effect, shall occur.
SECTION 8.1.13. Subscription and Contribution Agreement. Any party to
the Subscription and Contribution Agreement shall fail to comply with any
funding or contribution obligation under any such agreement, which failure shall
remain unremedied (either by cure by such Person or other Person) for a period
of five Business Days.
SECTION 8.1.14. License Transfer. The License Transfer shall fail to be
consummated within 365 days following the Closing Date.
SECTION 8.1.15. Nextel Operating Agreements. (i) Any Nextel Operating
Agreement shall terminate or fail to be renewed (except (x) in the case of the
Asset Transfer and Reimbursement Agreement, the Transition Services Agreement
and the Infrastructure Equipment Purchase Agreement, at such time as all
material obligations of the parties thereunder have been performed, (y) in the
case of the Interim Management Agreement, pursuant to Section 8(c) thereof or
(z) the Analog Management Agreement), (ii) a Material Breach (as defined in the
Joint Venture Agreement) described in Section 12.3 A, B or C of the Joint
Venture Agreement shall occur and be continuing which could reasonably be
expected to have a Material Adverse Effect, (iii) a Material Breach (other than
a Material Breach described in Section 12.3 A, B or C of the
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Joint Venture Agreement) shall occur and continue unremedied after the
expiration of all applicable grace periods and arbitration proceedings, or (iv)
NWIP shall default in the due performance and observance of any of its
obligations under the NWIP Undertaking which default could reasonably be
expected to have a Material Adverse Effect.
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand and the Borrower shall automatically and immediately be obligated to
deposit with the Administrative Agent cash collateral in an amount equal to all
Letter of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable, require the Borrower to
provide cash collateral to be deposited with the Administrative Agent in an
amount equal to the undrawn amount of all Letters of Credit outstanding and/or
declare the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall deposit with the
Administrative Agent cash collateral in an amount equal to all Letters of Credit
Outstandings.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its
Syndication Agent and BOM as its Administrative Agent under and for purposes of
this Agreement, the Notes and each other Loan Document. Each Lender authorizes
the Agents to act on behalf of such Lender under this Agreement, the Notes and
each other Loan Document and, in the absence of other written instructions from
the Required Lenders received from time to time by the Agents (with respect to
which each of the Agents agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to or required of
the Agents by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. The Agents may execute any of their respective
duties under this Agreement, the Notes and each other Loan Document by or
through their respective employees, agents and attorneys-in-fact. Each Lender
hereby indemnifies (which indemnity shall survive any termination of this
Agreement) the Agents, pro rata according to such Lender's percentage of the
Total Exposure Amount, from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature
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whatsoever which may at any time be imposed on, incurred by, or asserted
against, either of the Agents in any way relating to or arising out of this
Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which any Agent is not reimbursed by the Borrower or
any other Obligor (and without limiting the obligation of the Borrower or any
other Obligor to do so); provided, however, that no Lender shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from such Agent's gross
negligence or wilful misconduct. An Agent shall not be required to take any
action hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of either of the Agents shall be or become, in such
Agent's determination, inadequate, such Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
12:00 noon, Chicago, Illinois time, on the day prior to a Borrowing or
Disbursement with respect to a Letter of Credit pursuant to Section 2.6.2 that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Administrative Agent, such Lender and
the Borrower severally agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to the
Borrower to the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. None of the Agents or the Lead Arranger nor
any of their respective directors, officers, employees or agents shall be liable
to any Lender for any action taken or omitted to be taken by it under this
Agreement or any other Loan Document, or in connection herewith or therewith,
except for its own willful misconduct or gross negligence, nor responsible for
any recitals or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or any other Loan
Document, nor for the creation, perfection or priority of any Liens purported to
be created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by the Borrower of its
obligations hereunder or under any other Loan Document. None of the Agents or
the Lead Arranger nor any of their respective directors, officers, employees or
agents shall be responsible for or have any duty to ascertain, inquire into or
verify (i) any statement, warranty or representation made in connection with any
Loan Document or any borrowing hereunder, (ii) the performance or observance of
any of the covenants or agreements of any Obligor under any Loan Document,
including, without limitation, any agreement by an Obligor to furnish
information directly to each Lender, (iii) the satisfaction of any condition
specified in Article V, expect receipt of items required to be delivered solely
to the Administrative Agent, (iv) the
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existence or possible existence of any Default or Event of Default, or (v) the
financial condition of the Borrower or any other Obligor. Any such inquiry which
may be made by an Agent or the Issuer shall not obligate it to make any further
inquiry or to take any action. The Agents and the Issuer shall be entitled to
rely upon advice of counsel concerning legal matters and upon any notice,
consent, certificate, statement or writing which the Agents or the Issuer, as
applicable, believe to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon
one Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrower and all Lenders. The Administrative Agent may be removed
at any time with or without cause by written notice received by the
Administrative Agent from the Required Lenders, such removal to be effective on
the date specified in such notice. If the Administrative Agent at any time shall
resign or be removed, the Required Lenders may, with the prior consent of the
Borrower (which consent shall not be unreasonably withheld or delayed) appoint
another Lender as a successor Administrative Agent which shall thereupon become
the Administrative Agent hereunder. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
notice of resignation or receiving notice of removal, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder as the
Administrative Agent, the provisions of (i) this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement, and (ii) Section 10.3 and Section
10.4 shall continue to inure to its benefit. Notwithstanding anything else to
the contrary in this Section 9.4, the Administrative Agent may at any time,
without the consent of the Borrower or any Lender, appoint an Affiliate which is
a commercial banking institution as a successor Administrative Agent.
SECTION 9.5. Credit Extensions by Each Agent and Issuer. Each Agent and
the Issuer shall have the same rights and powers with respect to (i) in the case
of the Agents, the Credit Extensions made by it or any of its Affiliates and
(ii) in the case of the Issuer, the Loans made by it or any of its Affiliates,
as any other Lender and may exercise the same as if it were not an Agent or the
Issuer. Each Agent, the Issuer and each of their respective Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
such Agent or Issuer were not an Agent or Issuer hereunder.
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SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agents, the Lead Arranger, the Issuer and each other
Lender, and based on such Lender's review of the financial information of the
Borrower, this Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other documents, information
and investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently of the Agents, the Lead Arranger, the Issuer and each other
Lender, and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit decisions as
to exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 9.8. The Syndication Agent, the Documentation Agent and the
Administrative Agent. Notwithstanding anything else to the contrary contained in
this Agreement or any other Loan Document, the Syndication Agent, the
Documentation Agent and the Administrative Agent, each in such capacity, shall
have no duties or responsibilities under this Agreement or any other Loan
Document nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Syndication Agent,
the Documentation Agent or the Administrative Agent, as applicable, in such
capacity except as are explicitly set forth herein or in the other Loan
Documents.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1 Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
in writing by the Borrower and each Obligor party thereto and the Required
Lenders; provided, however, that no such amendment, modification or waiver which
would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders shall be effective unless consented
to in writing by each Lender;
(b) modify this Section 10.1, or clause (a) of Section 10.10,
change the definitions of "Required Lenders" or "Interest Period",
increase any Commitment Amount or the Percentage of any Lender, reduce
any fees described in Section 3.3 (other
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than the administration fee referred to in Section 3.3.2), release any
Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty, release the Parent from its obligations under the Parent
Guaranty and Pledge Agreement, or release all or substantially all of
the collateral security (except in each case as otherwise specifically
provided in this Agreement, the Subsidiary Guaranty or a Security
Agreement) or extend any Commitment Termination Date shall be made
without the written consent of each Lender adversely affected thereby;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment of principal of or interest on or fees payable in
respect of any Loan or reduce the principal amount of or rate of
interest on or fees payable in respect of any Loan or any Reimbursement
Obligations (which shall in each case include the conversion of all or
any part of the Obligations into equity of any Obligor) or reduce the
amount of, or postpone the scheduled date of, any mandatory reduction
of any Commitment, without the written consent of the holder of the
Note evidencing such Loan or, in the case of a Reimbursement
Obligation, the Issuer owed, and those Lenders participating in, such
Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of
any Agent, the Issuer or the Lead Arranger (in its capacity as Agent,
Issuer or Lead Arranger), unless consented to in writing by such Agent,
the Issuer or the Lead Arranger, as the case may be;
(e) have the effect (either immediately or at some later time)
of enabling the Borrower to satisfy a condition precedent to the making
of a Revolving Loan or the issuance of a Letter of Credit without the
written consent of Lenders holding at least 51% of the Revolving Loan
Commitments; or
(f) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 without the written
consent of each Lender affected thereby.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
For purposes of this Section 10.1, the Syndication Agent, in
coordination with the Administrative Agent, shall have primary responsibility,
together with the Borrower, in the negotiation, preparation, and documentation
relating to any amendment, modification or waiver of this Agreement, any other
Loan Document or any other agreement or document related hereto or thereto
contemplated pursuant to this Section.
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SECTION 10.2. Notices. All notices, requests and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by facsimile and addressed, delivered or transmitted to
such party at its address or facsimile number set forth on Schedule II hereto
or, in the case of a Lender which becomes a party hereto after the date hereof,
as set forth in the Lender Assignment Agreement pursuant to which such Lender
becomes a Lender hereunder or at such other address or facsimile number as may
be designated by such party in a notice to the other parties. Any notice, (i) if
mailed and properly addressed with postage prepaid or (ii) if properly addressed
and sent by pre-paid courier service, shall be deemed given when received, or
(iii) if transmitted by facsimile, shall be deemed given when transmitted (and
telephonic confirmation of receipt thereof has been received).
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all reasonable expenses of each Agent (including the reasonable fees
and out-of-pocket expenses of counsel to the Agents and of local or foreign
counsel, if any, who may be retained by counsel to the Agents) in connection
with
(a) the syndication by the Syndication Agent and the Lead
Arranger of the Loans, the negotiation, preparation, execution and
delivery of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other Loan
Document as may from time to time hereafter be required, whether or not
the transactions contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of the
Mortgages and the Security Agreements and/or any Uniform Commercial
Code financing statements relating thereto and all amendments,
supplements and modifications to any thereof and any and all other
documents or instruments of further assurance required to be filed or
recorded or refiled or rerecorded by the terms hereof or of any
Mortgage or any Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Agents and the Lenders
harmless from all liability for, any stamp or other similar taxes which may be
payable in connection with the execution or delivery of this Agreement, the
Borrowings hereunder, the issuance of the Notes, the issuance of the Letters of
Credit, or any other Loan Documents. The Borrower also agrees to reimburse each
Agent and each Lender upon demand for all reasonable out-of-pocket expenses
(including reasonable attorneys' fees and legal expenses) incurred by such Agent
or such Lender in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitment,
the Borrower indemnifies, exonerates and holds each Agent, the Lead Arranger,
the Issuer and each Lender and each of their respective partners, trustees,
officers, directors, employees and agents (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, causes of
action,
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suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to make
any Credit Extension hereunder but excluding any such action in which a
court of competent jurisdiction in a final non-appealable judgment
determined that such Lenders breached their obligations hereunder in
respect of such Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Agent, the Lead Arranger, the Issuer or
such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by the Borrower or any
of its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary;
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the relevant
Indemnified Party's gross negligence or wilful misconduct. Each Obligor and its
permitted successors and assigns hereby waive, release and agree not to make any
claim, or bring any cost recovery action against, any Agent, the Lead Arranger,
the Issuer or any Lender under CERCLA or any state equivalent, or any similar
law now existing or hereafter enacted, except to the extent determined by a
court of competent jurisdiction in a final proceeding to have resulted from the
gross negligence or wilful misconduct of any Indemnified Party. It is expressly
understood and agreed that to the extent that any of such Persons is strictly
liable under any Environmental Laws, such Obligor's obligation to such Person
under this indemnity shall likewise be without regard to fault on the part of
such Obligor, to the extent permitted under applicable law, with respect to the
violation or condition which results in liability of such Person. If and to the
extent that the foregoing undertaking may be
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unenforceable for any reason, such Obligor hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 4.8 and Section 9.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the Borrower and each
other Obligor in this Agreement and in each other Loan Document shall survive
the execution and delivery of this Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. 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 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCLUDING THE
LAW OF CONFLICTS BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
This Agreement, the Notes 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 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
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SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons in accordance with this Section
10.11.
SECTION 10.11.1. Assignments. Any Lender (an "Assignor Lender"),
(a) with the written consents of the Borrower, the Agents and
(in the case of any assignment of participations in Letters of Credit
or Revolving Loan Commitments) the Issuer ((x) which consents shall not
be unreasonably delayed or withheld, (y) which consents of the Agents
and the Issuer shall not be required in the case of assignments made
(1) to DLJ or any of its Affiliates or (2) by DLJ or any of its
Affiliates to any commercial bank, fund which is regularly engaged in
making, purchasing or investing in loans or securities or other
financial institution the long-term certificate of deposit rating or
long-term senior unsecured debt rating of which as determined by S&P or
Xxxxx'x is at least BBB or Baa2 and (z) which consent of the Borrower
shall not be required at any time when an Event of Default shall have
occurred and be continuing), may at any time assign and delegate to one
or more commercial banks, funds which are regularly engaged in making,
purchasing or investing in loans or securities or other financial
institutions, and
(b) with notice to the Borrower, the Agents and (in the case
of any assignment of participations in Letters of Credit or Revolving
Loan Commitments) the Issuer, but without the consent of the Borrower,
the Agents or the Issuer, may assign and delegate to any of its
Affiliates or to any other Lender or to a Related Fund of any Lender
(each such Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), all or any fraction of such Lender's total
Loans, participations in Letters of Credit and Letter of Credit Outstandings
with respect thereto and Commitments (which assignment and delegation shall be,
as among Revolving Loan Commitments, Revolving Loans and participations in
Letters of Credit, of a constant, and not a varying, percentage) in a minimum
aggregate amount equal to the lesser of (i) $1,000,000 or (ii) the then
remaining amount of such Lender's Loans and Commitments; provided, however, that
any such Assignee Lender will comply, if applicable, with the provisions
contained in Section 4.6 and the Borrower, each other Obligor and the Agents
shall be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an Assignee Lender
until (x) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to such
Assignee Lender, shall have been given to the Borrower and the Agents by such
Lender and such Assignee Lender, (y) such Assignee Lender shall have executed
and delivered to the Borrower and the Agents a Lender Assignment Agreement,
accepted by the Agents, and (z) the processing fees described below shall have
been paid.
From and after the date that the Agents accept such Lender Assignment Agreement,
(i) the Assignee Lender thereunder shall be deemed automatically to have become
a party hereto and to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights
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and obligations of a Lender hereunder and under the other Loan Documents, and
(ii) the Assignor Lender, to the extent that rights and obligations hereunder
have been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within ten Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender), and to the extent requested, new Notes evidencing
such Assignee Lender's assigned Loans and Commitments and, if the Assignor
Lender has retained Loans and Commitments hereunder, replacement Notes in the
principal amount of the Loans and Commitments retained by the Assignor Lender
hereunder (such Notes to be in exchange for, but not in payment of, those Notes
then held by such Assignor Lender). Each such Note shall be dated the date of
the predecessor Notes. The Assignor Lender shall xxxx the predecessor Notes
"exchanged" and deliver them to the Borrower. Accrued interest on that part of
the predecessor Notes evidenced by the new Notes, and accrued fees, shall be
paid as provided in the Lender Assignment Agreement. Accrued interest on that
part of the predecessor Notes evidenced by the replacement Notes shall be paid
to the Assignor Lender. Accrued interest and accrued fees shall be paid at the
same time or times provided in the predecessor Notes and in this Agreement. Such
Assignor Lender or such Assignee Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,500, unless such assignment and delegation is by a Lender to its
Affiliate or to a Related Fund or if such assignment and delegation is by a
Lender to a Federal Reserve Bank (or, if such Lender is an investment fund, to
the trustee under the indenture to which such fund is a party in support of its
obligations to such trustee), as provided below or is otherwise consented to by
the Administrative Agent. Any attempted assignment and delegation not made in
accordance with this Section 10.11.1 shall be null and void. Nothing contained
in this Section 10.11.1 shall prevent or prohibit any Lender from pledging its
rights (but not its obligations to make Loans or participate in Letters of
Credit of Letter of Credit Outstandings) under this Agreement and/or its Loans
and/or its Notes hereunder (i) to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank or (ii) in the
case of a Lender that is an investment fund, to the trustee under the indenture
to which such fund is a party in support of its obligations to such trustee;
provided that any such assignment to a trustee shall be subject to the
provisions of clause (a) of this Section 10.11.1. In the event that S&P, Moody's
or Xxxxxxxx'x BankWatch (or InsuranceWatch Ratings Service, in the case of
Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service)) shall, after
the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the long-term
certificate of deposit rating or long-term senior unsecured debt rating of such
Lender, and the resulting rating shall be below BBB-, Baa3 or C (or BB, in the
case of Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)) respectively, then the
Borrower (with the consent of the Administrative Agent and the Issuer) shall
have the right, but not the obligation, upon notice to such Lender and the
Agents, to replace such Lender with an Assignee Lender in accordance with and
subject to the restrictions contained in this Section, and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitment under this Agreement to
such Assignee Lender; provided, however, that (i) no such assignment shall
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conflict with any law, rule and regulation or order of any governmental
authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest and
fees (if any) accrued to the date of payment on the Loans made, and Letters of
Credit participated in, by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one
or more commercial banks or other Persons (each such commercial bank and other
Person being herein called a "Participant") participating interests in any of
the Loans, Commitments, participations in Letters of Credit and Letters of
Credit Outstandings or other interests of such Lender hereunder; provided,
however, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each
of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, agree to any reduction in the interest rate or amount of fees
that such Participant is otherwise entitled to, a decrease in the
principal amount, or an extension of the final Stated Maturity Date, of
any Loan in which such Participant has purchased a participating
interest or a release of all or substantially all of the collateral
security under the Loan Documents or any Subsidiary Guarantor that is a
Material Subsidiary under any Subsidiary Guaranty, in each case except
as otherwise specifically provided in a Loan Document; and
(e) the Borrower shall not be required to pay any amount under
Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the
amount which it would have been required to pay had no participating
interest been sold.
The Borrower acknowledges and agrees, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.12. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices and in
any event may make disclosure to any of their examiners,
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Affiliates, outside auditors, counsel and other professional advisors in
connection with this Agreement or as reasonably required by any bona fide
transferee, participant or assignee or as required or requested by any
governmental agency or representative thereof or pursuant to legal process;
provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of
such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
10.12, each Lender shall require any such bona fide transferee,
participant and assignee receiving a disclosure of non-public
information to agree in writing
(i) to be bound by this Section 10.12; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 10.12; and
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by the
Borrower or any Subsidiary.
SECTION 10.13. Other Transactions. Nothing contained herein shall
preclude the Agents or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS OR THE BORROWER THAT IS BROUGHT IN THE STATE OF NEW YORK
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK LOCATED IN NEW YORK COUNTY 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 BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE
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XXXXX XX XXX XXXX XXX XX XXX XXXXXX XXXXXX 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 BORROWER 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 AND EXPRESSLY AND IRREVOCABLY
APPOINTS CT CORPORATION SYSTEM AS ITS DOMICILE AND ADDRESS FOR SERVICE OF
PROCESS FOR PURPOSES OF ANY ACTION AS TO WHICH IT HAS SUBMITTED TO JURISDICTION
AS SET FORTH IN THIS SECTION 10.14, AND AGREES THAT SERVICE UPON SUCH AUTHORIZED
AGENT SHALL BE DEEMED IN EVERY RESPECT SERVICE OF PROCESS UPON THE BORROWER OR
ITS SUCCESSORS AND ASSIGNS, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
SHALL BE TAKEN AND HELD TO BE VALID PERSONAL SERVICE UPON IT. THE BORROWER
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. NOTHING IN
THIS SECTION SHALL AFFECT THE RIGHT OF ANY AGENT, ANY LENDER OR THE ISSUER TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF
ANY SUCH PERSON TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION. TO THE EXTENT THAT THE
BORROWER 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 BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, THE LENDERS, THE
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE AGENTS, THE LENDERS, THE ISSUER OR THE BORROWER. THE BORROWER
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
AGENTS, THE LENDERS AND THE ISSUER
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ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NEXTEL PARTNERS OPERATING CORP.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Chief Financial Officer
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and as Lender
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
-109-
THE BANK OF NEW YORK,
as the Documentation Agent and as Lender
By /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
Address: Xxx Xxxx Xx.
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx
BANK OF MONTREAL, Chicago Branch
as the Administrative Agent and as Lender
By /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxx
LENDERS:
BARCLAYS BANK PLC
By /s/ Daniele Iacorone
-------------------------
Name: Daniele Iacorone
Title: Associate Director
FIRST UNION NATIONAL BANK
By /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
DRESDNER BANK AG NEW YORK & GRAND
CAYMAN BRANCHES
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Assistant Vice President
By /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Treasurer
THE FUJI BANK, LIMITED
By /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President & Manager
