EXHIBIT 10.77(b)
EXECUTION COPY
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$650,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
dated as of May 23, 2005
between
NEXTEL PARTNERS OPERATING CORP.
The SUBSIDIARY GUARANTORS Party Hereto
The LENDERS Party Hereto
X.X. XXXXXX SECURITIES INC.,
as Lead Arranger and Sole Bookrunner
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 23,
2005, between NEXTEL PARTNERS OPERATING CORP. (the "Borrower"), each of the
subsidiary guarantors listed on the signature pages hereof under the heading
"SUBSIDIARY GUARANTORS" (individually, a "Subsidiary Guarantor" and,
collectively, the "Subsidiary Guarantors"), each of the lenders listed on the
signature pages hereof under the heading "REVOLVING CREDIT LENDERS" or that
becomes a party hereto as a Tranche D Term Loan Lender pursuant to a Lender
Addendum in the form of Schedule I hereto (individually, a "Lender" and,
collectively, the "Lenders"), and JPMORGAN CHASE BANK, N.A. (formerly known as
JPMorgan Chase Bank), as Administrative Agent for the Lenders (together with its
successors in such capacity, the "Administrative Agent").
The Borrower, the Subsidiary Guarantors, the Lenders, and the
Administrative Agent are parties to a Credit Agreement dated as of December 19,
2003 (the "Original Credit Agreement"; the Original Credit Agreement as amended
and restated by the First Amended and Restated Credit Agreement dated as of May
19, 2004, the "Existing Credit Agreement") for extensions of credit (by the
making of loans) to be made by said Lenders to the Borrower in an aggregate
principal or face amount not exceeding $800,000,000. The Borrower, the
Subsidiary Guarantors, the Lenders, and the Administrative Agent wish to amend
the Existing Credit Agreement in certain respects and, as so amended, to restate
the Existing Credit Agreement in its entirety, and each of the Lenders who
execute and deliver a Lender Addendum in the form attached as Schedule I hereto
and who are not already parties to the Existing Credit Agreement as Revolving
Credit Lenders thereunder (collectively, the "New Lenders") wishes to become a
party hereto.
Accordingly, the parties hereto agree to amend the Existing Credit
Agreement as set forth in Section 2 hereof and to restate the Existing Credit
Agreement in its entirety as set forth in the Existing Credit Agreement (which
Existing Credit Agreement is hereby incorporated herein by reference), as
amended by the amendments set forth in Section 2 hereof:
Section 1. Definitions. Except as otherwise defined herein, terms
defined in the Existing Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 4 below, but effective as of the date hereof, the
Existing Credit Agreement shall be amended as follows:
2.01. General. References in the Existing Credit Agreement to "this
Agreement" (and indirect references such as "hereunder", "hereby", "herein" and
"hereof) shall be deemed to be references to the Existing Credit Agreement as
amended and restated hereby. Each New Lender shall be deemed to be a "Lender"
under and for all purposes of the
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Existing Credit Agreement and this Second Amended and Restated Credit Agreement
and each reference therein or herein to a "Lender" shall be deemed to include
each New Lender.
2.02. Definitions. Section 1.01 of the Existing Credit Agreement
shall be amended by adding the following new definitions (to the extent not
already included in said Section 1.01) and inserting the same in the appropriate
alphabetical locations and amending the following definitions (to the extent
already included in said Section 1.01) to read in their entirety as follows:
"Additional Spectrum Equity Capital" means, on any date, the
aggregate Fair Market Value of Licenses contributed to the equity capital
of the Borrower (other than in the form of Disqualified Capital Stock)
after the Second Restatement Effective Date. The aggregate amount of
Additional Spectrum Equity Capital, as at any date, shall be equal to the
cumulative Fair Market Value of Licenses contributed to the equity capital
of the Borrower through and including the last day of the Fiscal Quarter
ending on or most recently ended prior to such date, as determined (i) in
the case of the second Fiscal Quarter in Fiscal Year 2006 and the second
Fiscal Quarter in each Fiscal Year thereafter, by the chairman of the
board of directors of the Parent (after consultation with the board of
directors of the Parent) and (ii) in the case of the last day of any other
Fiscal Quarter beginning with the third Fiscal Quarter in Fiscal Year
2005, by a Senior Financial Officer, which determination shall in each
case be set forth in the certificate of the chief financial or chief
accounting Authorized Officer delivered pursuant to Section 6.01(c),
provided that, if the aggregate Fair Market Value of Licenses (other than
800 or 900 MHz spectrum) received pursuant to Re-Banding Spectrum
Transactions shall at any time exceed $100,000,000, the Required Lenders
may request, and the Borrower shall promptly provide the Lenders with,
confirmation by an Independent Third Party of the Fair Market Value of
such Licenses. With respect to (i) and (ii), such determination shall be
supported by reasonable documentation.
"Adjusted LIBO Rate" means, for the Interest Period for any
Eurodollar Borrowing, an interest rate per annum (in the case of any
Revolving Credit Borrowing, rounded upwards, if necessary, to the next
1/16 of 1% and in the case of any Term Loan Borrowing, rounded upwards, if
necessary, to the fifth decimal place) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate for such
Interest Period.
"Applicable Margin" means, for any day, (x) with respect to any
Revolving Loan during any Interest Accrual Period (as defined below), the
respective rates indicated below for the Type of Loans opposite the
applicable Leverage Ratio indicated below for such Interest Accrual
Period:
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Greater than 8.00 to 1 3.000% 2.000%
Less than or equal to 8.00 to 1 2.750% 1.750%
and greater than 7.00 to 1
Less than or equal to 7.00 to 1 2.500% 1.500%
and greater than 6.00 to 1
Less than or equal to 6.00 to 1 2.000% 1.000%
and greater than 5.00 to 1
Less than or equal to 5.00 to 1 1.500% 0.500%
and (y) in the case of Tranche D Term Loans, for any day, 0.50% for ABR
Loans and 1.50% for Eurodollar Loans.
The Applicable Margin, with respect to any Type of Incremental Term
Loans of any Series, shall be agreed upon at the time Incremental Term
Loan Commitments of such Series are established pursuant to Section
2.01(c).
For purposes of this definition, an "Interest Accrual Period" means
with respect to any Revolving Loan the period commencing during any Fiscal
Quarter on the date (the "Change Date") that the Administrative Agent
receives the certificate referred to in the next following paragraph to
but not including the Change Date in the immediately following Fiscal
Quarter. The Leverage Ratio for any Interest Accrual Period after the
initial Interest Accrual Period shall be determined on the basis of a
certificate of the chief financial officer of the Borrower, or any other
senior financial officer setting forth a calculation of the Leverage Ratio
as at the last day of the Fiscal Quarter ending immediately prior to the
first day of such Interest Accrual Period, each of which certificates
shall be delivered together with the financial statements for the Fiscal
Quarter on which such calculation is based.
Anything in this Agreement to the contrary notwithstanding, the
Applicable Margin shall be, in the case of Revolving Loans, (i) 2.00% with
respect to ABR Loans and 3.00% with respect to Eurodollar Loans until the
Interest Accrual Period commencing on the date of the receipt by the
Administrative Agent of the certificate referred to in the immediately
preceding paragraph setting forth the calculation of the Leverage Ratio as
at the Fiscal Quarter ending December 31, 2003 and (ii) the highest rates
set forth in the schedule above during any period when an Event of Default
shall
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have occurred and be continuing, or if the Borrower shall default in the
delivery of any financial statements pursuant to Section 6.01.
Anything in this Agreement to the contrary notwithstanding, in the
event that the Adjusted Applicable Margin for any series of Incremental
Term Loans shall be greater than 0.25% above the Applicable Margin for
Tranche D Term Loans, the Applicable Margin for Tranche D Term Loans will
be adjusted so that it is at least equal to 0.25% below the Adjusted
Applicable Margin on the Incremental Term Loans.
"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 7.03), all
right, title and interest in 100% of the Capital Stock of the Borrower;
(ii) the failure of Nextel or any other Permitted Person 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 51% (on a fully diluted basis) of the Capital Stock of the
Parent owned by Nextel on the Effective 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 a Permitted Person, 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.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans constituting such Borrowing, are Revolving
Loans, Tranche D Term Loans or Incremental Term Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a
Revolving Credit Commitment, Tranche D Term Loan Commitment or Incremental
Term Loan Commitment.
"Commitment" means a Revolving Credit Commitment, Tranche D Term
Loan Commitment or Incremental Term Loan Commitment, or any combination
thereof (as the context requires).
"Cooperation Agreement" means the Cooperation Agreement 800 MHz
Spectrum Rebanding dated as of March 7, 2005, by and between Nextel and
the Parent.
"Disqualified Capital Stock" means any capital stock issued by
Parent or Borrower that, by its terms (or by the terms of any security
into which it is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily redeemable, for cash or
other property (other than capital stock of Parent that is not
Disqualified Capital Stock) pursuant to a sinking fund obligation or
otherwise, or is redeemable, in whole or in part, at the option of the
holder thereof for cash or other
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property (other than for capital stock of Parent that is not Disqualified
Capital Stock), in each case on or before 91 days after the final stated
maturity of the Loans hereunder, provided that any capital stock that
provides that it may be redeemed at the option of the holders thereof in
the event of a Change in Control shall not be deemed to be Disqualified
Capital Stock solely as a consequence of such provision.
"Excluded Disposition" means any sale, transfer or other disposition
(i) of inventory in the ordinary course of business, (ii) that is a
Permitted Infrastructure Sale/Leaseback, (iii) that is a Permitted Tower
Sale, (iv) that is a License Exchange, (v) that is a Re-Banding Spectrum
Transaction, (vi) of any asset, if the fair market value of the
consideration received in connection therewith is less than $5,000,000 and
(vii) of assets that is permitted under Section 7.08(g).
"Fair Market Value" means, with respect to any consideration
(including any property, securities or indebtedness and financial
commitments and other undertakings) received or delivered by the Borrower
or any of its Subsidiaries in any swap of spectrum or related transfer of
assets pursuant to a Re-Banding Order (including in connection with any
contribution to the equity capital of the Borrower as contemplated in the
definition of "Additional Spectrum Equity Capital" in this Section 1.01),
the amount determined as of the time of such swap or transfer (or
contribution) to be equal to the aggregate cash purchase price that a
willing buyer, under no compulsion to purchase, would pay for such
consideration from a willing seller, under no compulsion to sell, in each
case bargaining in good faith on an arms'-length basis, provided that the
value of Licenses in any band (i.e. 700 MHz, 800 MHz, 900 MHz and so
forth) received or delivered in a Re-Banding Spectrum Transaction shall be
determined in a manner consistent with the methodology adopted by Nextel
in valuing Licenses of such band in the submissions made by it to the FCC
in connection with the Re-Banding Proceeding. The consideration received
by the Borrower or any of its Subsidiaries pursuant to a Re-Banding
Spectrum Transaction may include the Fair Market Value of those Licenses
that Nextel is obligated to deliver pursuant to the Cooperation Agreement;
provided, however, that such Fair Market Value, when added to the
aggregate Fair Market Value of all other such Licenses included in prior
determinations of "Re-Banding Restricted Payments" and still undelivered,
shall not exceed $100,000,000. Except as provided in the previous
sentence, the consideration delivered or received by the Borrower and its
Subsidiaries in connection with any swap of spectrum or related assets
shall include all consideration delivered or received (including all
monies paid) after the consummation of the swap, as and when such
consideration is delivered or received.
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"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 for the period ending on the last day of
such Fiscal Quarter 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
Tranche D Term Loans, any Incremental Term Loans and other funded
Debt during all such Fiscal Quarters (exclusive, however, of (A) 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 Credit Commitments and (B) scheduled payments of
principal with respect to Permitted Parent Debt; provided, that with
respect to this clause (B) only, at the end of the Fiscal Quarter
being tested, (x) the Leverage Ratio is less than 2.25 to 1.0, (y)
the aggregate amount of (1) cash and Permitted Short Term
Investments held by the Borrower, plus (2) the available and undrawn
portion of the Revolving Credit Commitments, is at least equal to
$150,000,000 and (z) such scheduled principal payments with respect
to Permitted Parent Debt, as the case may be, have been paid in
full); 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.
"Guarantors" means the Parent and the Subsidiary Guarantors.
"Independent Third Party" means an independent investment banking,
accounting or appraisal firm of national standing acceptable to the
Administrative Agent.
"Interest Period" means, for any Eurodollar Loan or Borrowing, the
period commencing on the date of such Loan or Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two,
three or six months thereafter (or in the case of any Loan or Borrowing
made between the period of May 23, 2005 and June 1, 2005, 2 weeks), as
specified in the applicable Borrowing Request or Interest Election
Request; provided, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless such next succeeding Business Day
would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day, and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or
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on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof,
the date of a Loan initially shall be the date on which such Loan is made
and thereafter shall be the effective date of the most recent conversion
or continuation of such Loan, and the date of a Borrowing comprising Loans
that have been converted or continued shall be the effective date of the
most recent conversion or continuation of such Loans.
"Lender Addendum" means, with respect to any Tranche D Term Loan
Lender, a Lender Addendum substantially in the form of Schedule I hereto,
dated as of the date of the Second Restatement and executed and delivered
by such Tranche D Term Loan Lender as provided in Section 5 of the Second
Restatement.
"Lenders" means the Persons listed on the signature pages to the
Second Restatement under the caption "Revolving Credit Lenders", each
Tranche D Term Lender executing and delivering a Lender Addendum pursuant
to Section 5 of the Second Restatement, the Incremental Term Loan Lenders
(if any) and any other Person that shall have become a party hereto
pursuant to an Assignment and Acceptance, other than any such Person that
ceases to be a party hereto pursuant to an Assignment and Acceptance.
"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.
"License Subsidiary" means Nextel WIP License Corp., Nextel WIP
Expansion Corp., Nextel WIP Expansion Two Corp. and/or any other
wholly-owned Subsidiary of the Borrower designated as a License Subsidiary
by notice to the Administrative Agent; provided that (i) such Subsidiary
has no obligations or liabilities other than hereunder and under the
Security Agreement and 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 Security Agreement.
"Merger" means the merger of Nextel with and into Merger Sub as
contemplated by the Merger Agreement.
"Merger Agreement" means the Agreement and Plan of Merger dated as
of December 15, 2004 by and among Sprint, Nextel and Merger Sub, as in
effect on the date hereof.
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"Merger Sub" means S-N Merger Corp., a Delaware corporation and
wholly-owned Subsidiary of Sprint.
"Parent Guaranty and Pledge Agreement" means a Guaranty and Pledge
Agreement substantially in the form of Exhibit C hereto between the Parent
and the Administrative Agent.
"Permitted Person" means (i) prior to the consummation of the
Merger, Nextel and its Subsidiaries and (ii) following the consummation of
the Merger in accordance with the terms of the Merger Agreement (a) Nextel
and its Subsidiaries; (b) Sprint; or (c) a wholly-owned Subsidiary of
Sprint (a "Sprint Subsidiary"), provided, that unless otherwise consented
to by the Required Lenders, a Sprint Subsidiary (other than Nextel and its
Subsidiaries including NWIP) shall cease to be a Permitted Person on the
365th day following the date such Sprint Subsidiary's ownership of the
Capital Stock of the Parent would have resulted in a Change in Control,
but for such Sprint Subsidiary's classification as a Permitted Person
pursuant to this definition.
"Permitted Short Term Investment" means, at any time:
(a) obligations of the Department of the Treasury of the United
States and any United States agency;
(b) money market instruments of domestic and foreign issuers,
including commercial paper, bankers' acceptances, certificates of deposit,
time deposits and variable rate issues;
(c) variable rate demand notes;
(d) auction rate preferred notes;
(e) corporate notes and bonds;
(f) asset-backed securities and collateralized mortgage obligations;
(g) repurchase agreements;
(h) master notes;
(i) money market funds comprised of items specified in clauses (a)
through (h) above; and
(j) short-term tax-exempt securities;
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provided, however, that the following maturity and credit standards must
be satisfied with respect to each of the foregoing instruments:
(i) the maximum maturity, average life, or date any such
instrument is mandatorily redeemable by its issuer at the holder's
option is 18 months from the date of acquisition of such instrument
and the weighted average maturity of all Permitted Short Term
Investments shall not exceed 12 months;
(ii) for variable rate issues, the date of the next coupon
reset will be used for calculating the maturity profile but in no
case will the final maturity be longer than 18 months from the date
of acquisition of such instrument;
(iii) any instrument with a final maturity date within one
year from the issue date or any money market fund (other than a
short term tax-exempt security) will have a short-term rating of at
least A-1 by S&P or P-1 by Xxxxx'x, or, if there is no short-term
rating, the fund must have a long-term rating of A-3 or better by
Xxxxx'x or A- or better from S&P and any short-term tax-exempt
security will have rating not lower than MIG-1/1+ by either Xxxxx'x
or S&P;
(iv) any instrument with a final maturity date in excess of
one year from the issue date will have a rating of A-3 or better by
Xxxxx'x or A- or better from S&P; and
(v) no investment (other than obligations of the Department of
the Treasury of the United States or any United States agency), when
added to all other investments in the same issuer, exceeds in value
5% of the total value of Borrower's aggregate Permitted Short Term
Investments at any one time outstanding.
"Permitted Tower Sale" means any sale, transfer, lease contribution
or conveyance of a communications tower (including items of personal
property related to the erection or maintenance of the tower, such as
cable and antenna mounts, supports, guy wires and anchors, hangers,
footings, platforms and related spare parts, antennae, and related real
property interests, but excluding any equipment installed thereon or
related thereto) so long as such sale, transfer, lease, contribution or
conveyance is for fair market value and the consideration consists solely
of cash.
"Re-Banding Order" means an order entered by the FCC in the
Re-Banding Proceeding.
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"Re-Banding Proceeding" means the FCC proceeding related to
Improving Public Safety Communications in the 800 MHz Band, WT Docket No.
02-55, to resolve interference experienced by public safety communications
systems through the realignment of the 800 megahertz spectrum.
"Re-Banding Restricted Payment" means an amount equal to the
positive difference, if any, between (a) the aggregate Fair Market Value
of the assets and other consideration (including any property, securities
or indebtedness and financial commitments and other undertakings)
delivered by the Borrower or any of its Subsidiaries pursuant to
Re-Banding Spectrum Transactions, over (b) the aggregate Fair Market Value
of the assets and other consideration (including any property, securities
or indebtedness and financial commitments and other undertakings) received
by the Borrower or any of its Subsidiaries pursuant to Re-Banding Spectrum
Transactions. The aggregate amount of Re-Banding Restricted Payments, as
at any date, shall be equal to the cumulative amount of Re-Banding
Restricted Payments made through and including the last day of the Fiscal
Quarter ending on or most recently ended prior to such date, as determined
(i) in the case of the second Fiscal Quarter in Fiscal Year 2006 and the
second Fiscal Quarter in each Fiscal Year thereafter, by the chairman of
the board of directors of the Parent (after consultation with the board of
directors of the Parent) and (ii) in the case of the last day of any other
Fiscal Quarter beginning with the third Fiscal Quarter in Fiscal Year
2005, by a Senior Financial Officer, which determination shall in each
case be set forth in the certificate of the chief financial or chief
accounting Authorized Officer delivered pursuant to Section 6.01(c),
provided that, if the aggregate Fair Market Value of Licenses (other than
800 or 900 MHz spectrum) received pursuant to Re-Banding Spectrum
Transactions shall at any time exceed $100,000,000, the Required Lenders
may request, and the Borrower shall promptly provide the Lenders with,
confirmation by an Independent Third Party of the Fair Market Value of
such Licenses.
The determination by (i) the chairman of the board of directors of
the Parent described above as at the last day of the second Fiscal Quarter
in any Fiscal Year shall include a de novo determination of the prior
determinations made by any Senior Financial Officer for the three
immediately preceding Fiscal Quarters and, if different than such
determinations by such Senior Financial Officer, shall supersede such
prior determination and (ii) any Independent Third Party determination
described above shall be a de novo determination of the prior
determinations made by any Senior Financial Officer or the chairman of the
board of the directors of the Parent and, if different than such
determinations by the Senior Financial Officer or the chairman of the
board of directors of the Parent, the determination by the Independent
Third Party shall supersede such prior determinations. With respect to (i)
and (ii), such determination shall be supported by reasonable
documentation.
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"Re-Banding Spectrum Transaction" means any transaction that
involves the exchange of Licenses of the Borrower or any of its
Subsidiaries (or capital stock, or other equity interests, of a License
Subsidiary substantially all of whose assets consist of Licenses) for
Licenses of another Person (or for capital stock, or other equity
interests of a Person substantially all of whose assets consist of
Licenses) that is entered into pursuant to a Re-Banding Order and shall
include any such transaction that involves a related transfer of assets or
the surrender of Licenses by the Borrower or any of its Subsidiaries or
that involves the Borrower or any of its Subsidiaries making financial
commitments or undertakings to the FCC or other Persons, or both, pursuant
to a Re-Banding Order.
"Second Restatement" shall refer to the Second Amended and Restated
Credit Agreement dated as of May 23, 2005 between the Borrower, the
Subsidiary Guarantors, each of the lenders listed on the signature pages
thereto under the heading "REVOLVING CREDIT LENDERS", each of the lenders
that becomes a party thereto as a Tranche D Term Loan Lender pursuant to a
Lender Addendum in the form of Schedule I thereto, and the Administrative
Agent.
"Second Restatement Effective Date" means the date upon which the
conditions precedent set forth in Section 4 of the Second Restatement to
the effectiveness of the amendments contemplated by Section 2 thereof
shall be satisfied or waived.
"Senior Financial Officer" means the chief financial officer or
treasurer of the Parent.
"Senior Notes" means the Convertible Senior Notes, the 12.5% Senior
Notes due 2009, the 1 1/2% Convertible Senior Notes due 2008 and the
8 1/8% Senior Notes due 2011, in each case issued by the Parent.
"Sprint" means Sprint Corporation, a Kansas corporation.
"Term Loan Commitment" means, collectively, the Tranche D Term Loan
Commitments and the Incremental Term Loan Commitments.
"Term Loan Maturity Date" means: (a) with respect to the Tranche D
Term Loans, the Quarterly Date falling on or nearest to May 31, 2012 and
(b) with respect to the Incremental Term Loans of any Series, the maturity
date for such Series specified at the time the same is established
pursuant to Section 2.01(c).
"Tranche D Term Loan" means a Loan made pursuant to this Agreement
in Section 2.01 (b).
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"Tranche D Term Loan Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make one or more Tranche D Term
Loans hereunder (or, as provided herein, to convert Tranche C Term Loans
into Tranche D Term Loans hereunder) on the Second Restatement Effective
Date, expressed as an amount representing the maximum aggregate principal
amount of the Tranche D Term Loans to be made by such Lender hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section
2.07 or 2.09(b) and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Lender's Tranche D Term Loan Commitment is set forth in the
Lender Addendum executed and delivered by such Lender, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed
its Tranche D Term Loan Commitment, as applicable. The initial aggregate
amount of the Lenders' Tranche D Term Loan Commitments is $550,000,000.
"Tranche D Term Loan Lender" means a Lender with an outstanding
Tranche D Term Loan Commitment or an outstanding Tranche D Term Loan.
2.03. References to "Cash Equivalent Investment". The definition of
"Cash Equivalent Investment" in Section 1.01 of the Credit Agreement is hereby
deleted and all references in the Credit Agreement to "Cash Equivalent
Investment" are hereby deleted and replaced with "Permitted Short Term
Investment".
2.04. References to "Tranche C". Section 1.01 of the Existing Credit
Agreement shall be further amended by deleting the following definitions:
"Tranche C Term Loan", "Tranche C Term Loan Commitment" and "Tranche C Term Loan
Lender". In addition, references in the Existing Credit Agreement to "Tranche C"
in provisions not otherwise amended hereby (including in the definition of
"Excess Cash Flow", and in Sections 2.01(c), 2.02(d) and 2.03(b)(i)) are hereby
replaced with "Tranche D".
2.05. Tranche D Term Loans. Section 2.01(b) of the Existing Credit
Agreement is hereby amended to read in its entirety as follows:
"(b) Tranche D Term Loans. Subject to the terms and conditions set
forth herein, each Tranche D Term Loan Lender agrees to make one or more
Tranche D Term Loans to the Borrower (or, as provided below, to convert
Tranche C Term Loans into Tranche D Term Loans) on the Second Restatement
Effective Date in a principal amount not exceeding its Tranche D Term Loan
Commitment. Amounts prepaid or repaid in respect of Tranche D Term Loans
may not be reborrowed.
Notwithstanding the foregoing, it is understood and agreed that any
Tranche D Lender that also holds any Tranche C Term Loans may elect, by
notice to the Administrative Agent, that the Tranche D Term Loans required
to be made by such
Second Amended and Restated Credit Agreement
- 13 -
Lender on the Second Restatement Effective Date shall, to the extent of
the portion of such Tranche D Term Loans not exceeding the aggregate
principal amount of the Tranche C Term Loans of such Lender, be made by
converting such Tranche C Term Loans into Tranche D Term Loans (and each
reference in the Second Restatement to the "making" of any Tranche D Term
Loan, or words of similar import, shall in the case of such Lender be
deemed to include such conversion). Without limiting the generality of the
foregoing, it is understood that the Tranche D Term Loans into which the
Tranche C Term Loans are so converted shall be treated identically to the
Tranche D Term Loans being funded (and not being converted from Tranche C
Term Loans) on the Second Restatement Effective Date and shall have
identical Interest Periods in identical proportions and durations as all
other Tranche D Term Loans (and, for these purposes, any Interest Periods
for Tranche C Term Loans that are Eurodollar Loans in effect on the Second
Restatement Effective Date shall be terminated on the Second Restatement
Effective Date, and any such converting Lender shall be paid accrued
interest on its Tranche C Term Loans being so converted, together with any
amounts payable under Section 2.14, as if the Tranche C Term Loans were
being prepaid in full on the Second Restatement Effective Date)."
2.06. Scheduled Termination. Section 2.07(a) of the Existing Credit
Agreement is hereby amended to read in its entirety as follows:
"(a) Scheduled Termination. Unless previously terminated, (i) the
Tranche D Term Loan Commitments shall terminate at 5:00 p.m., New York
City time, on the Second Restatement Effective Date, (ii) the Revolving
Credit Commitments shall terminate on the Revolving Credit Commitment
Termination Date and (iii) the Incremental Term Loan Commitments of each
Series shall terminate on the close of business on the date specified
therefor pursuant to Section 2.01(c) at the time such Series is
established."
2.07. Repayment of Loans. Section 2.08(a)(ii) of the Existing Credit
Agreement is hereby amended to read in its entirety as follows:
"(ii) to the Administrative Agent for account of the Tranche D Term
Loan Lenders the outstanding principal amount of the Tranche D Term Loans
on each Principal Payment Date set forth below in the aggregate principal
amount set forth opposite such Principal Payment Date (subject to
adjustment pursuant to paragraph (b) of this Section):
Second Amended and Restated Credit Agreement
- 14 -
Principal Payment Date Amount ($)
---------------------- -----------
May 31, 2007 1,375,000
August 31, 2007 1,375,000
November 30, 2007 1,375,000
February 28, 2008 1,375,000
May 31, 2008 1,375,000
August 31, 2008 1,375,000
November 30, 2008 1,375,000
February 28, 2009 1,375,000
May 31, 2009 1,375,000
August 31, 2009 1,375,000
November 30, 2009 1,375,000
February 28, 2010 1,375,000
May 31, 2010 1,375,000
August 31, 2010 1,375,000
November 30, 2010 1,375,000
February 28, 2011 1,375,000
May 31, 2011 1,375,000
August 31, 2011 131,656,250
November 30, 2011 131,656,250
February 28, 2012 131,656,250
May 31, 2012 131,656,250
If the initial aggregate amount of the Tranche D Term Loan
Commitments exceeds the aggregate principal amount of Tranche D Term Loans
that are made on the Second Restatement Effective Date, then the scheduled
repayments to be made pursuant to this Section shall be reduced ratably by
an aggregate amount equal to such excess. To the extent not previously
paid, all Tranche D Term Loans shall be due and payable on the Term Loan
Maturity Date for such Loans.
Notwithstanding the foregoing, if on any date (the "Test Date"), the
maturity date for any then-outstanding Permitted Parent Debt shall fall
within three months of the Test Date then the Tranche D Term Loans and
Revolving Loans shall be paid in full on the Test Date and the Revolving
Credit Commitments shall terminate on such Test Date, provided that the
foregoing shall not apply if (A) on the Test Date (x) the Adjusted
Second Amended and Restated Credit Agreement
- 15 -
Leverage Ratio is less than 2.25 to 1 and (y) after giving pro forma
effect to the repayment of such next maturing Permitted Parent Debt, the
sum of (1) cash and Permitted Short Term Investments held by the Borrower
plus (2) the available and undrawn portion of Revolving Credit
Commitments, is at least equal to $150,000,000 or (B) on any Test Date (x)
the next maturing Permitted Parent Debt is the Convertible Senior Notes
and the average of the last sale price of the Parent Common Stock on the
NASDAQ National Market for the 10 consecutive trading day period
immediately prior to the Test Date is greater than 130% of the conversion
price applicable to the Convertible Senior Notes, (y) no other then
outstanding Permitted Parent Debt shall have a maturity within three
months of the Test Date and (z) no other Default or Event of Default has
occurred and is continuing."
2.08. Mandatory Prepayments and Prepayment Penalties. Section 2.09
of the Existing Credit Agreement is hereby amended by (i) amending Section
2.09(b)(iii) to read in its entirety as set forth below and (ii) deleting
Section 2.09(d) in its entirety:
"(iii) Equity Issuance. Concurrently with the receipt of any Net
Equity Proceeds by the Borrower or any of its Subsidiaries resulting from
a sale or issuance of Capital Stock by the Parent or the Borrower at any
time after December 31, 2006, the Borrower shall 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, shall prepay the Loans (and/or provide cover for LC
Exposure as specified in Section 2.04(k)), and/or the Commitments shall be
subject to automatic reduction, in an amount equal to 100% of such Net
Equity Proceeds, such prepayment and/or reduction to be effected in each
case in the manner and to the extent specified in clause (vi) of this
Section 2.09, provided that up to $100,000,000 of the Net Equity Proceeds
received by the Borrower and resulting from a sale or issuance of Capital
Stock by the Parent or the Borrower after December 31, 2006 may be used to
prepay, call or otherwise redeem outstanding Senior Notes or other
outstanding Indebtedness of the Borrower having a final stated maturity
date prior to the last Term Loan Maturity Date."
2.09. Licenses. Section 4.01 of the Existing Credit Agreement is
hereby amended to read in its entirety as follows:
"SECTION 4.01. 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
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, and each other Loan Document to which it is a party
Second Amended and Restated Credit Agreement
- 16 -
and to own and hold its property (including the Licenses), to operate the
Network in all areas in which it operates 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."
2.10. Subsidiaries. Section 4.08 of the Existing Credit Agreement is
hereby amended to read in its entirety as follows:
"SECTION 4.08. Subsidiaries. The Borrower has no Subsidiaries,
except those Subsidiaries (i) which are identified in Schedule VI (Part A)
or (ii) which are permitted to have been acquired in accordance with
Section 7.05. 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)."
2.11. Licenses. Section 4.14 of the Existing Credit Agreement is
hereby amended to read in its entirety as follows:
"SECTION 4.14. Licenses. The Licenses held by the License
Subsidiaries as of the date hereof are set forth in the FCC's Universal
Licensing System and the License Subsidiaries are the only licensees of
all of the Licenses necessary to construct, install, develop and operate
the Network. The Borrower and its Subsidiaries have the full use and
benefit of all such Licenses except to the extent the use and benefit of
certain Licenses may be limited by the Re-Banding Proceeding and except as
disclosed in Schedule III. The Licenses (a) have been duly issued by the
FCC and (b) are in full force and effect and the Borrower and its
Subsidiaries (including, without limitation, the License 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."
2.12. Financial Information, Reports, Notices, etc. Section 6.01(c)
of the Existing Credit Agreement is hereby amended to read in its entirety as
follows:
"(c) together with the delivery of the financial information
required pursuant to clause (a) and clause (b):
(i) 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
Second Amended and Restated Credit Agreement
- 17 -
Administrative Agent) compliance with the financial covenants set
forth in Section 7.04, and
(ii) a certificate of the chief financial or chief accounting
Authorized Officer of the Borrower and the Parent attaching a copy
(x) in the case of any financial statements delivered under clause
(a) for the second Fiscal Quarter of each Fiscal Year beginning with
Fiscal Year 2006, of the determination by the chairman of the board
of directors of the Parent (after consultation with the board of
directors of the Parent) of the aggregate amount of Additional
Spectrum Equity Capital and Re-Banding Restricted Payments through
the last day of said Fiscal Quarter and for the four Fiscal Quarters
ending with said Fiscal Quarter, and (y) in the case of any
financial statements delivered under clause (a) or clause (b) as of
the end of any other Fiscal Quarter or any Fiscal Year, of the
determination by the chief financial or chief accounting Authorized
Officer of the Borrower and the Parent of the aggregate amount of
Additional Spectrum Equity Capital and Re-Banding Restricted
Payments through the last day of such Fiscal Quarters, which
determinations shall in each case be in form and detail reasonably
satisfactory to the Administrative Agent;"
2.13. Existence; Conduct of Business. Section 6.09 of the Existing
Credit Agreement is hereby amended by amending the proviso to read in its
entirety as follows:
"provided that the foregoing shall not prohibit any merger,
consolidation, liquidation, dissolution, sale or disposition of assets or
other transactions (including, without limitation exchanges of Licenses
pursuant to a Re-Banding Order or License Exchange) to the extent
otherwise permitted under Sections 7.07 and 7.08."
2.14. Use of Proceeds. Section 6.11 of the Existing Credit Agreement
is hereby amended to read in its entirety as follows:
"SECTION 6.11. Use of Proceeds and Letters of Credit. The Borrower
shall (a) apply the proceeds of the Term Loans to refinance Indebtedness
and for general corporate purposes (including, in the case of the Tranche
D Term Loans, to prepay the Tranche C Term Loans outstanding prior to the
Second Restatement Effective Date, (b) apply the proceeds of the Revolving
Loans for general corporate purposes of the Borrower and its Subsidiaries
in the ordinary course of business, including the acquisition and
build-out of the Borrower's telecommunications network, and the
acquisition of additional frequencies and related assets; and (c) use
Letters of Credit for the working capital and general corporate purposes
of the Borrower and its Subsidiaries."
2.15. Investments. Section 7.05 of the Existing Credit Agreement is
hereby amended by (i) amending clause (b) to read in its entirety as set forth
below, (ii) deleting the
Second Amended and Restated Credit Agreement
- 18 -
word "or" at the end of clause (h), (iii) amending clause (i) to read in its
entirety as set forth below and (iv) inserting a new clause (j) to read in its
entirety as set forth below:
"(b) Permitted Short Term Investments;"
"(i) additional Investments in an aggregate amount at any time
outstanding not to exceed $20,000,000; 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; or
(j) acquisitions of Licenses or the stock of entities substantially
all of whose assets are Licenses, pursuant to Re-Banding Orders or License
Exchanges otherwise permitted pursuant to the terms of this Agreement."
2.16. Restricted Payments. Section 7.06 of the Existing Credit
Agreement is hereby amended to read in its entirety as follows:
"SECTION 7.06. Restricted Payments. The Borrower will not, and will
not permit any of its Subsidiaries to, directly or indirectly, (A)
declare, pay or make any dividend, distribution or exchange (in cash,
property or obligations) or other payment on or in respect of any
Permitted Parent Debt 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 and (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
before 91 days after the final maturity of the Loans hereunder or
convertible or exchangeable for debt securities and (y) does not require
the payment of dividends in cash)), (B) 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 Permitted Parent Debt 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 any class of Capital Stock
(now or hereafter outstanding) of the Borrower or (C) make any Re-Banding
Restricted Payment (the foregoing prohibited acts are herein collectively
referred to as "Restricted Payments"); provided that, notwithstanding the
foregoing provisions,
Second Amended and Restated Credit Agreement
- 19 -
(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 7.04 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 6.01, and (C) an Authorized Officer of the Borrower
shall have delivered a certificate to the Administrative Agent in form and
substance satisfactory to the Administrative Agent (including a
calculation of compliance with the covenants set forth in Section 7.04)
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 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 Permitted Parent Debt in an
aggregate amount which, after giving effect to such payment, would
not exceed $150,000,000 for the 12-month period immediately
preceding such payment;
(iii) redeem the Parent's 12.5% Senior Notes due 2009,
provided that at the time of and after giving pro forma effect to
such dividend the sum of (x) cash and Permitted Short Term
Investments held by the Borrower plus (y) the available and undrawn
portion of Revolving Credit Commitments is at least equal to
$150,000,000;
Second Amended and Restated Credit Agreement
- 20 -
(iv) redeem any Senior Notes; provided, that at the time
of and after giving pro forma effect to such dividend (x) the
Adjusted Leverage Ratio is less than 2.25 to 1 and (y) the sum
of (1) cash and Permitted Short Term Investments held by the
Borrower plus (2) the available and undrawn portion of
Revolving Credit Commitments is at least equal to
$150,000,000; and
(v) repurchase, redeem or otherwise acquire or retire
for value any Senior Notes, or any common stock of the Parent,
or any warrant, option or other right to acquire common stock
of the Parent; provided that the aggregate amount of all such
repurchases made pursuant to this clause (v) shall not exceed
$20,000,000 over the term of this Agreement;
(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; and
(c) so long as at the time thereof, and after giving effect thereto,
no Default shall have occurred and be continuing, the Borrower may make
Re-Banding Restricted Payments, provided that the aggregate amount of all
such Restricted Payments made pursuant to this clause (c) shall not exceed
on any date, taking into account all previous Re-Banding Restricted
Payments under this clause (c), the aggregate amount of Additional
Spectrum Equity Capital on such date."
2.17. Consolidation, Merger, etc. Section 7.07 of the Existing
Credit Agreement is hereby amended by (i) deleting the word "and" at the end of
clause (a), (ii) inserting the word "; and" and the end of clause (b) and (iii)
inserting a new clause (c) to read in its entirety as follows:
"(c) Notwithstanding any of the foregoing in this Section, subject
to compliance with Section 7.06, the Borrower or any of its Subsidiaries
may sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) any cash or property (including the stock of
any of the Borrower's Subsidiaries) whether now owned or hereafter
acquired, in connection with a Re-Banding Spectrum Transaction."
Second Amended and Restated Credit Agreement
- 21 -
2.18. Asset Dispositions, etc. Section 7.08 of the Existing Credit
Agreement is hereby amended by (i) deleting the word "or" at the end of clause
(e), (ii) amending clause (f) to read in its entirety as set forth below and
(iii) inserting a new clause (g) as set forth below:
"(f) such sale, transfer or lease, contribution or conveyance of
Licenses in connection with a Re-Banding Spectrum Transaction; or
(g) such sale, transfer, lease, contribution or conveyance is of
assets not otherwise included in the foregoing clauses (a) through (f) and
does not exceed $15,000,000 over the term of this Agreement."
2.19. Events of Default. Clauses (d), (n), (q) and (s) of Article
VIII of the Existing Credit Agreement are hereby amended to read in their
entirety as follows:
"(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.01(f), 6.11 or the first
sentence of Section 6.12 or in Article VII; or the Parent shall default in
the performance of any of its respective obligations contained in the
Sections 2, 3, 4, 5, 6 or 7 of the Parent Guaranty and Pledge Agreement;"
"(n) 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; provided that, the
foregoing shall not apply to any License that is terminated, revoked or
not renewed solely as a result of a Re-Banding Spectrum Transaction;"
"(q) any "Change in Control of the Company" under and as defined in
the Joint Venture Agreement shall occur without Nextel or one of its
wholly-owned Subsidiaries entering into an Interim Management Agreement
containing the terms set forth in, and as required by, Section 4.16. A of
the Joint Venture Agreement and the NWIP Undertaking;"
"(s) any "Change in Control of the Company" under and as defined in
the Joint Venture Agreement shall occur as a result of actions taken by
any Person other than Nextel or one of its wholly-owned Subsidiaries or
any other Permitted Person;"
2.20. Schedules. Schedules II (Part A), III and IV are hereby
amended to read in their entirety as set forth in Schedules II (Part A), III and
IV hereto.
Section 3. Representations and Warranties. The Borrower represents
and warrants that the representations and warranties set forth in Article IV of
the Existing Credit Agreement are true and complete on the date hereof as if
made on and as of the date hereof and as if each reference in said Article IV to
"this Agreement" included reference to this Second
Second Amended and Restated Credit Agreement
- 22 -
Amended and Restated Credit Agreement and as if each reference to Schedules II
(Part A), III and IV referred to Schedules II (Part A), III and IV hereto.
Section 4. Conditions Precedent. As provided in Section 2 above, the
amendment and restatement of the Existing Credit Agreement contemplated hereby
shall become effective, as of the date hereof, upon the receipt by the
Administrative Agent of the following:
4.01. Executed Counterparts. Duly executed and delivered
counterparts (or written evidence thereof satisfactory to the Administrative
Agent, which may include telecopy transmission of, as applicable, a signed
signature page or Lender Addendum) of (i) this Second Amended and Restated
Credit Agreement from each Obligor and from Revolving Credit Lenders
constituting the "Required Revolving Credit Lenders" under the Existing Credit
Agreement, and (ii) Lender Addenda from the Tranche D Term Loan Lenders for
aggregate Tranche D Term Loan Commitments in an amount equal to $550,000,000.
4.02. Opinion of Counsel to the Obligors. A favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Second Restatement Effective Date) of Xxxxxx Xxxxxx LLP, counsel for the
Obligors, substantially in the form of Exhibit A hereto, and covering such other
matters relating to the Borrower, this Second Amended and Restated Credit
Agreement or the Transactions as the Required Lenders shall reasonably request
(and each Obligor hereby instructs such counsel to deliver such opinion to the
Lenders and the Administrative Agent).
4.03. Opinion of Special FCC Counsel to the Obligors. A favorable
written opinion (addressed to the Administrative Agent and the Lenders and dated
the Second Restatement Effective Date) of Xxxxxxxx and Xxxxxx, special FCC
counsel for the Obligors, substantially in the form of Exhibit B hereto, and
covering such other matters as the Administrative Agent or any Lender may
reasonably request (and each Obligor hereby instructs such counsel to deliver
such opinions to the Lenders and the Administrative Agent).
4.04. Opinion of Special Counsel to JPMCB. An opinion of Milbank,
Tweed, Xxxxxx & XxXxxx, LLP, special New York counsel to JPMCB (addressed to the
Administrative Agent and the Lenders and dated the Second Restatement Effective
Date), substantially in the form of Exhibit C hereto (and JPMCB hereby instructs
such counsel to deliver such opinion to the Lenders).
4.05. Corporate Documents. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Obligor, the authorization of
the Transactions and any other legal matters relating to the Obligors, this
Second Amended and Restated Credit
Second Amended and Restated Credit Agreement
- 23 -
Agreement or the Transactions, all in form and substance satisfactory to the
Administrative Agent and its counsel.
4.06. Officer's Certificate. A certificate, dated the Second
Restatement Effective Date and signed by the President, a Vice President or the
chief financial officer of the Borrower, confirming compliance with the
conditions set forth in the lettered clauses of the first sentence of Section
5.02 of the Existing Credit Agreement, as amended hereby.
4.07. Repayment of Tranche C Term Loans. Evidence that the principal
of and interest on, and all other amounts owing in respect of, the Tranche C
Term Loans outstanding under the Existing Credit Agreement shall have been (or
shall be simultaneously) paid in full from the proceeds of the Tranche D Term
Loans made under the Existing Credit Agreement, as amended hereby, or from other
funds available to the Borrower.
4.08. Certain Consents. To the extent not previously delivered, from
each counterparty that executed and delivered a Consent to Assignment on the
Effective Date, and from NWIP with respect to the NWIP Undertaking Agreement and
from Realco under the Realco Agreement, an acknowledgement of the continued
effectiveness of such Consents to Assignment and such agreements after giving
effect to this Second Amended and Restated Credit Agreement.
4.09. Designation as Credit Facility. Evidence that either (i) the
Parent shall have designated the Tranche D Term Loans under this Second Amended
and Restated Credit Agreement as a "Credit Facility" under the indentures
pursuant to which the Senior Notes have been issued or (ii) the Borrower is
permitted to incur the full amount of the Tranche D Term Loans under the
indentures pursuant to which the Senior Notes have been issued without reliance
upon the "Permitted Debt" baskets thereunder.
4.10. Amendment to Security Agreement and Parent Guaranty and Pledge
Agreement. Duly executed and delivered counterparts (or written evidence thereof
satisfactory to the Administrative Agent, which may include telecopy
transmission) of (i) Amendment No. 1 dated as of May 23, 2005 to the Security
Agreement and (ii) Amendment No. 1 dated as of May 23, 2005 to the Parent
Guaranty and Pledge Agreement.
4.11. Other Documents. Such other documents as the Administrative
Agent or any Lender or special counsel to JPMCB may reasonably request.
Section 5. Delivery of Lender Addenda. Each Tranche D Term Loan
Lender shall become a party to this Second Amended and Restated Credit Agreement
by delivering to the Administrative Agent a Lender Addendum duly executed by
such Tranche D Term Loan Lender, the Borrower and the Administrative Agent.
Second Amended and Restated Credit Agreement
- 24 -
Section 6. Certain Consents. By its signature below, each Bank party
hereto hereby consents to (i) Amendment No. 1 dated as of May 23, 2005 to the
Security Agreement, substantially in the form of Exhibit D hereto, and (ii)
Amendment No. 1 dated as of May 23, 2005 to the Parent Guaranty and Pledge
Agreement, substantially in the form of Exhibit E hereto.
Section 7. Confirmation. By their signatures below, each of the
Subsidiary Guarantors hereby consents to this Second Amended and Restated Credit
Agreement and agrees that the obligations of the Borrower in respect of the
Tranche D Term Loans shall constitute "Guaranteed Obligations" under the
Existing Credit Agreement as amended and restated hereby.
Section 8. Miscellaneous. Except as herein provided, the Existing
Credit Agreement shall remain unchanged and in full force and effect. This
Second Amended and Restated Credit Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Second Amended and Restated Credit
Agreement by facsimile transmission shall be effective as delivery of a manually
executed counterpart of this Second Amended and Restated Credit Agreement. This
Second Amended and Restated Credit Agreement shall be governed by, and construed
in accordance with, the law of the State of New York.
Second Amended and Restated Credit Agreement
- 25 -
IN WITNESS WHEREOF, the parties hereto have caused this Second Amended and
Restated Credit Agreement to be duly executed and delivered as of the day and
year first above written.
NEXTEL PARTNERS OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Counsel
Second Amended and Restated Credit Agreement
- 26 -
SUBSIDIARY GUARANTORS
NEXTEL WIP LEASE CORP. NEXTEL WIP EXPANSION TWO CORP.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------- --------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Counsel Title: VP, Secretary and General Counsel
NPCR, INC. NEXTEL WIP LICENSE CORP.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------- --------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Counsel Title: VP, Secretary and General Counsel
NEXTEL WIP EXPANSION CORP. NEXTEL PARTNERS OF UPSTATE NEW YORK, INC.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------- --------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Counsel Title: VP, Secretary and General Counsel
NPFC, INC. NEXTEL PARTNERS EQUIPMENT CORP.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------- --------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Counsel Title: VP, Secretary and General Counsel
Second Amended and Restated Credit Agreement
- 27 -
REVOLVING CREDIT LENDERS
JPMORGAN CHASE BANK, N.A.,
individually and as the Administrative Agent
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Second Amended and Restated Credit Agreement
- 28 -
XXXXXX XXXXXXX SENIOR FUNDING, INC.
By /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Xxxxxx Xxxxxxx Senior Funding, Inc
Second Amended and Restated Credit Agreement
- 30 -
WACHOVIA BANK NATIONAL ASSOCIATION
By /s/ Xxxx X. Xxxx
----------------------
Name: Xxxx X. Xxxx
Title: Director
Second Amended and Restated Credit Agreement
- 31 -
SOCIETE GENERALE
By: /s/ Xxxx Xxxxx
-------------------------
Name: Xxxx Xxxxx
Title: Managing Director
Second Amended and Restated Credit Agreement
SCHEDULE II
Material Agreements and Liens
PART A - MATERIAL AGREEMENTS
(a) the Purchase Agreement for 12 1/2% Senior Securities due 2009, dated
as of December 4, 2001 between Nextel Partners, Inc. and The Bank of
New York as Trustee for aggregate principal amount of
$225,000,000.00;
(b) the Indenture for 12 1/2% Senior Securities due 2009, dated as of
December 4, 2001, between Nextel Partners, Inc. and The Bank of New
York as Trustee;
(c) the Purchase Agreement for 8 1/8% Senior Notes due 2011, dated as of
June 16, 2003, between Nextel Partners, Inc. and The Bank of New
York as Trustee for aggregate principal amount of $450,000,000.00;
(d) the Indenture for 8 1/8% Senior Notes due 2011, dated as of June 23,
2003, between Nextel Partners, Inc. and The Bank of New York as
Trustee;
(e) the Purchase Agreement for 8 1/8% Senior Notes due 2011, dated as of
May 13, 2004, among Nextel Partners, Inc, Xxxxxx Xxxxxxx & Co.
Incorporated, and X.X. Xxxxxx Securities Inc.;
(f) the Indenture for 8 1/8% Senior Notes due 2011, dated as of May 19,
2004, between Nextel Partners, Inc. and BNY Western Trust Company as
Trustee;
(g) the Purchase Agreement for 1 1/2% Convertible Senior Notes due 2008,
dated as of May 7, 2003, between Nextel Partners, Inc. and The Bank
of New York as Trustee for aggregate principal amount of
$150,000,000.00;
(h) the Indenture for 1 1/2% Convertible Senior Notes due 2008, dated as
of May 13, 2003, between Nextel Partners, Inc. and The Bank of New
York as Trustee;
(i) the Purchase Agreement for 1 1/2% Convertible Senior Notes due 2008,
dated as of August 6, 2003, between Nextel Partners, Inc. and The
Bank of New York as Trustee;
(j) the Indenture for 1 1/2 Convertible Senior Notes due 2008, dated as
of August 6, 2003, between Nextel Partners, Inc. and The Bank of New
York as Trustee;
(k) the Participation Agreement dated as of July 31, 2002 among the
Borrower, NPCR, Inc., General Electric Capital Corporation and State
Street Bank and Trust Company of Connecticut, National Association;
(l) the Lease Agreement dated as of July 31, 2002, between NPCR, Inc.
and State Street Bank and Trust Company of Connecticut, National
Association
SCHEDULE III
FCC Compliance
SCHEDULE OF EXCEPTIONS
Pursuant to Section 4.15, the following sets forth certain disclosures and
other exceptions to the representations made at Section 4.15 regarding the
FCC Licenses.
1. RACOM Agreements. On July 12, 2002, Nextel Partners, Inc. ("Nextel
Partners") acquired from RACOM Corporation ("RACOM"), a Delaware corporation,
several thousand FCC-licensed "upper 200" channel ("U200") frequencies in the
States of Iowa, Nebraska and Minnesota (the "Purchased RACOM Channels") pursuant
to an Asset Purchase and Relocation Agreement ("Purchase Agreement") under which
RACOM is required to relocate its operations from the Purchased RACOM Channels
to alternative spectrum to be obtained by RACOM. The Purchased RACOM Channels
were "incumbent" channels under Nextel Partners' U200 Economic Area (EA)
Licenses in the subject areas, and Nextel Partners entered the Purchase
Agreement to facilitate the relocation of these incumbent channels to
alternative spectrum pursuant to the requirements of 47 CFR Section 90.699.
Pursuant to a SMR Management and Deconstruction Agreement ("Management
Agreement") entered between RACOM and Nextel Partners on July 12, 2002, RACOM
was granted the right to continue to operate on the Purchased RACOM Channels as
a manager of the spectrum for a period of time of up to two years (the
"Management Term"). During the Management Term, RACOM was required to obtain and
relocate its customers to alternative spectrum, with all customers being
relocated by July 12, 2004. In addition, during the Management Term, RACOM was
required to meet periodic benchmarks in relocating customers from and
discontinuing use of the Purchased RACOM Channels; upon RACOM's discontinuance
of the use of such channels they were released from the Management Agreement and
became available for use by Nextel Partners. In the event of RACOM's inability
to relocate all of its customers from the Purchased RACOM Channels by the end of
the Management Term, RACOM can elect to continue to operate up to 15% of the
total number of Purchased RACOM Channels for up to two years after the end of
the Management Term; however during any such extension RACOM is required to make
specified monetary payments to Nextel Partners. RACOM met its periodic
benchmarks during the Management Term; however RACOM was not able to relocate
all of its customers to alternative spectrum by the end of the Management Term,
although RACOM has vacated more than 85% of the Purchased RACOM Channels. It is
not certain when or if RACOM will be able to obtain alternative spectrum.
Currently, the following channels remain subject to the Management Agreement:
# OF CURRENT
Site Latitude Longitude ANTENNA SITE EDACS FREQUENCIES
HEIGHT ELEVATION CHANNELS 861-865
------------------- -------- ------------- ------- --------- -------- -------------
Adair IA 41-30-00 94-38-11 190 1394 5 0.0000
Xxxxxx IA 43-04-14 94-12-00 285 1152 5 0.7625
Allison IA 42-41-39 92-46-57 300 1017 5 0.8625
Ames IA 42-04-44 93-33-41 400 1050 5 0.9375
Atlantic IA 41-29-27 94-57-57 380 1348 5 0.7875
Bettendorf IA 41-31-51 90-30-06 180 669 5 0.7875
Burlington IA 40-49-11 91-07-03 200 627 5 0.8625
Carroll IA 42-02-54 94-51-18 350 1293 5 0.3875
Cedar Falls IA 42-29-24 92-30-12 270 951 10 .2625 & .5875
Cedar Rapids (I) IA 41-57-09 91-41-00 400 853 5 .3125 & .7875
Cedar Rapids II IA 42-02-00 91-38-53 300 833 5 0.6625
Chariton IA 41-00-50 93-17-23 300 988 5 0.8625
Clarinda IA 40-36-30 95-04-22 350 1158 5 0.9625
Clinton IA 41-51-36 90-12-08 398 699 5 0.8625
Colfax IA 41-38-38 93-17-20 400 899 5 0.2375
Davenport IA 41-31-58 90-34-40 180 679 10 .2625 & .5875
Decorah IA 43-16-16 91-47-19 390 1037 5 0.8125
Denison IA 42-02-51 95-24-23 320 1437 5 0.9375
Des Moines IA 41-35-15 93-37-42 640 820 10 .2625 & .5875
Des Moines II IA 41-35-21 93-32-17 500 928 10 .3125 & .6625
Dixon IA 41-43-03 90-48-19 200 801 5 0.8875
Dubuque (I) IA 42-31-43 90-36-56 325 919 5 0.3875
Dubuque II IA All PS Freqs.
Now PS
Xxxxxxxxxx XX 00-00-00 91-06-39 400 1083 5 0.5625
Fort Dodge IA 42-29-08 94-11-09 310 994 5 0.3625
Fort Madison IA 40-35-20 91-18-28 300 686 5 0.5875
Hancock IA 41-23-53 95-28-17 500 1319 5 0.8875
Harlan IA 41-38-46 95-17-30 180 1344 5 0.9125
Xxx Grove IA 42-21-45 95-29-15 290 1381 5 0.9125
Independence IA 42-28-32 91-52-26 330 945 5 0.8625
Iowa City IA 41-39-44 91-37-35 265 797 5 0.9125
La Motte IA 42-18-48 90-35-53 170 1089 5 0.7625
Le Claire IA 41-37-44 90-22-25 180 732 XX
Xxxxxx IA 41-44-47 92-34-21 310 951 5 0.8375
Manchester IA 42-28-19 91-29-16 150 951 5 0.9125
Marshalltown IA 42-00-19 92-55-45 480 991 10 .5625 & .9625
Mason City IA 43-07-17 93-11-39 400 1184 5 0.9125
Muscatine IA 41-27-29 91-05-26 180 735 5 0.7625
New Hampton IA 43-02-17 92-23-26 400 1102 5 0.5625
Newton IA 41-40-37 93-04-48 180 896 5 0.8125
Ogden IA 42-02-46 94-02-34 290 1094 5 0.8125
Onawa IA 41-58-24 95-54-33 600 1375 5 0.0000
Xxxxxxx IA 41-01-34 93-51-43 450 1129 5 0.9375
Ottumwa IA 41-01-28 92-28-56 320 781 5 0.7875
Pella IA 41-23-20 92-52-30 400 860 5 0.9125
Peosta IA 42-26-51 90-51-19 190 1037 5 0.9375
Quimby IA 42-38-12 95-40-08 600 1306 5 0.5875
Red Oak IA 41-04-20 95-09-23 300 1243 5 0.8125
Redfield IA 41-40-11 94-10-18 180 1024 5 0.8375
Sherrill IA 42-36-18 90-47-57 300 1221 5 0.7875
Sioux Center IA 43-05-34 96-09-23 400 1450 5 0.2625
Sioux City I IA 42-29-39 96-18-21 400 1417 10 .5625 & .9625
Sioux City II IA 42-30-19 96-27-38 180 1283 10 .9375 & .3375
Spencer IA 43-09-24 95-04-53 366 1309 5 0.9125
Spirit Lake IA 43-24-20 95-05-01 545 1440 5 0.9625
Storm Lake IA 42-38-42 95-10-33 320 1437 5 0.2625
Thurman IA 40-48-36 95-42-43 300 1178 5 0.9125
Vinton IA 42-12-15 92-06-13 300 899 5 0.8875
Washington IA 41-16-03 91-44-12 350 735 5 0.8375
Waterloo IA 42-29-58 92-15-51 500 922 10 .9375 & .3375
Waukon IA 43-18-54 91-27-18 180 1280 5 0.9625
Wellsburg IA 42-22-29 92-55-18 360 1106 5 0.3875
Urbandale IA 41-37-38 93-45-46 195 935 10 0.8875
Xxxx Xxxxx XX 00-00-00 91-44-04 350 1198 5 0.5125
Milan IL 41-25-31 90-33-46 142 669 5 0.9625
Moline IL 41-28-30 90-26-44 260 669 10 0.8125
Austin MN 43-38-27 93-08-51 330 1289 5 0.8125
Xxxxxx MN 45-18-08 95-33-26 270 1060 5 0.5625
Xx Xxxxxxxx XX 00-00-00 91-22-04 300 1161 5 0.3875
Owatonna MN 44-03-57 93-13-14 265 1152 5 0.7625
Rochester MN 43-58-13 92-25-05 390 1191 10 .7625 & .8625
Rosemount MN 44-41-19 93-04-22 550 948 5 0.5625
Welcome MN 43-39-29 94-36-41 250 1237 5 0.8875
Worthington MN 43-37-02 95-41-19 320 1693 5 0.5625
Lincoln NE 40-49-17 96-39-42 320 1198 10 .5625 & .9625
Norfolk NE 42-02-15 97-26-42 180 1650 5 0.9625
Omaha (I) NE 41-15-34 95-56-45 250 1132 10 .2625 & .5875
Omaha II NE 41-15-13 96-07-08 260 1224 10 .8375 & .7625
Seward NE 40-54-33 97-05-59 110 1450 5 0.8625
Brookings SD 44-19-29 96-47-57 170 1604 5 0.2625
Sioux Falls SD 43-31-51 96-45-28 150 1486 10 0.9125
Turkey Ridge SD 43-14-52 97-22-37 200 1713 5 0.5875
Yankton SD 42-52-30 97-24-55 150 1273 5 0.7875
Prairie du Chien WI 43-03-35 91-06-02 300 1140 5 0.8625
Total 485
In addition, as part of RACOM's obligations under the Purchase Agreement, RACOM
was required no later than July 12, 2004, to carryout the deconstruction and
cancellation of the following non-RACOM incumbent U200 licenses that RACOM
currently manages and operates as part of RACOM's system within Nextel Partners'
EA-licensed service territory, however RACOM has allowed these licenses to
remain active on the FCC's database:
Call Sign Frequencies No. City Licensee
--------- ------------ --- ---------------- -------------------------------------
WPBZ517 861-865.5125 5 Arlington, IA Arlington Co Op Commission Co
WNIE772 861-865.9125 5 Harlan, IA Communications Network, Inc.
KNHH651 861-865.8625 5 Iowa City, IA Communications Network, Inc.
WNYR818 861-865.9625 5 Waukon, IA Communications Network, Inc.
WNFV261 861-865.8375 5 Palmyra, NE Communications Network, Inc.
WNSM955 861-865.8875 5 Sioux Center, IA Airlin X. Xx Xxx
WNWI402 861-865.9125 5 Quimby, IA Xxxxx X Xxxxxxxx Revocable Trust
WNXV506 861-865.0125 0 Xxxxxxxx, XX Xxxxxxxx Xxxx Xx
XXXX000 861-865.5625 5 Gresham, NE Great Plains Cooperative
WNSS374 861-865.9625 5 Spirit Lake Xxxxx X Xxxxxx, Trustee
WNQH672 861-865.3875 5 Newton, IA Jomel Corp
WNBG547 861-865.8875 5 Willmar, MN Petes Communications Inc.
WNPB455 861-865.9375 5 Worthington, MN Xxxxxxx Enterprises
WNZT341 861.865.1125 5 Monona, IA United Cooperative Assn
KNRS930 864-865.0375 5 Roscoe, SD East River Electric Power Cooperative
WNSX934 861-865.1125 5 Litchfield, MN Racom Corporation
WNVR946 861-865.8125 5 Sacred Heart MN Racom Corporation
WNWJ523 861-865.3625 5 Willmar, MN Racom Corporation
2. "Holdout" Incumbents. Nextel Partners successfully entered relocation
agreements or asset purchase agreements with all incumbent licensees within
Nextel Partners' U200 EA service territory that Nextel Partners wished to move
except for two incumbents that have refused to cooperate in relocation. These
holdout incumbents are: (i) Radio Service Company, licensee of a total of 35
U200 channels under call signs WPBB209 (Xxxxxx, ID), WNXZ684 (Xxxxxx, ID), and
WNXZ686 (Burley, ID); and (ii) C&W Communications, Inc., licensee of a total of
30 U200 channels under call signs WNJB566 (North Little Rock, AR), KNBV420
(Little Rock, AR), and WNEC236 (Hot Springs, AR). Nextel Partners has initiated
involuntary relocation proceedings before the FCC against these holdout
incumbents pursuant to 47 CFR Section 90.699. These proceedings remain pending
before the FCC.
SCHEDULE IV
Litigation
TYPE OF
CASE NAME COURT AND STATE FILING DATE CASE STATUS
--------------------- -------------------- ----------- ------- -------------------------
IPO Securities Class US Xxxxxxxx xxxxx, 00/0/00 Xxxxxxxxxx between
Action, Keifer v. Southern District of Nextel Partners, Inc. and
Nextel Partners, Inc. New York plaintiff reached and
conditionally approved
by the court
BILLING CLASS ACTION
Xxxxxx and Xxxxxxx v. IN THE UNITED 8/23/02 Unfair Settlement agreement
Nextel West Corp. et STATES DISTRICT billing executed and approved by
al COURT court subject to appeal
FOR THE
MISSOURI WESTERN
CLASS ACTION DISTRICT OF
MISSOURI
Case No. 02-0921-
FJG
Xxxxxxx Xxxxx v. 00 Xxxxxxxx Xxxxx of 4/1/03 Unfair Included in Xxxxxx
Nextel Xxxxxxx County, billing settlement, subject to
Communications, et al Texas Xxxxxx appeal.
Xxxxx Xxxxxxx v. In the Circuit Court 5/2/03 Unfair Included in Xxxxxx
Nextel of the Shelby County billing settlement, subject to
Communications, for the Thirtieth Xxxxxx appeal
Nextel West Corp., Judicial District At
Nextel Partners Memphis
TENNESSEE CLASS
ACTION
Xxxxxxx & Xxxxxxxx v. Circuit Court of the 5/3/03 Unfair Included in Xxxxxx
Nextel South Corp., Second Judicial billing settlement, subject to
BILLING CLASS ACTION
Xxxxxx and Xxxxxxx v. IN THE UNITED 8/23/02 Unfair Settlement agreement
Nextel West Corp. et STATES DISTRICT billing executed and approved by
al COURT court subject to appeal
FOR THE
MISSOURI WESTERN
CLASS ACTION DISTRICT OF
MISSOURI
Case No. 02-0921-
FJG
Xxxxxxx Xxxxx v. 00 Xxxxxxxx Xxxxx of 4/1/03 Unfair Included in Xxxxxx
Nextel Xxxxxxx County, billing settlement, subject to
Communications, et al Texas Xxxxxx appeal.
Nextel Comm., & NPI Circuit in and for Xxxxxx appeal
Xxxx County,
FLORIDA CLASS Florida, Civil
ACTION Division
Xxxxxx Xxxxx and Circuit Court of 8/9/03 Unfair Included in Xxxxxx
Xxxxx Zruna v. Nextel Jefferson County, billing settlement, subject to
Communications, Inc., Alabama Xxxxxx appeal
et al
MISCELLANEOUS
Xxxxx Xxxxxxxxx v. State Court of Xxxxxx 6/8/01 Product Remanded to trial court
Nokia, Inc. et al County, State of liability
Georgia
Consolidated
to US District Court
for the District of
Maryland
EXECUTION COPY
Amendment No. 1 to Guaranty and Pledge Agreement
AMENDMENT NO. 1 dated as of May 23, 2005 to the Guaranty and Pledge
Agreement referred to below (this "Amendment No. 1"), between NEXTEL PARTNERS,
INC., a corporation duly organized and validly existing under the laws of the
State of Delaware (the "Parent") and JPMORGAN CHASE BANK, N.A., as the
administrative agent for the lenders or other financial institutions or entities
party, as lenders, to the Credit Agreement referred to below (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
The Parent and the Administrative Agent are parties to a Guaranty
and Pledge Agreement dated as of December 19, 2003 (as in effect immediately
prior to the effectiveness of this Amendment No. 1, the "Parent Guaranty and
Pledge Agreement"). The parties hereto wish to amend the Parent Guaranty and
Pledge Agreement in certain respects. Accordingly, the parties hereto hereby
agree as follows:
Section 1. Definitions. Except as otherwise defined herein, terms
defined in the Parent Guaranty and Pledge Agreement are used herein as defined
therein.
Section 2. Amendments. Subject to the satisfaction of the condition
precedent specified in Section 3 hereof, the Parent Guaranty and Pledge
Agreement is hereby amended as of the date hereof as set forth below:
2.01. References in the Parent Guaranty and Pledge Agreement to
"this Agreement" (and indirect references such as "hereunder", "hereby",
"herein" and "hereof") shall be deemed to be references to the Parent Guaranty
and Pledge Agreement as amended hereby.
2.02. Section 3.09 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"3.09 Pledged Stock. The Pledged Stock identified in Annex 3 hereto
constitutes (i) all of the issued and outstanding shares of capital stock,
partnership or other ownership interest of any class of the Borrower
beneficially owned by the Parent on the date hereof, whether or not
registered in the name of the Parent. Annex 3 hereto correctly identifies,
as at the date hereof, the respective class and par value of the shares
comprising the Pledged Stock and the respective number of shares (and
registered owners thereof) represented by each such certificate.
The Pledged Stock identified in Annex 3 is, and all other Pledged
Stock in which the Parent shall hereafter grant a security interest
pursuant to Section 4 will be, duly
Amendment No. 1 to Parent Guaranty and Pledge Agreement
- 2 -
authorized, validly existing, fully paid and non-assessable, and none of
such Pledged Stock is or will be subject to any contractual restriction,
or any restriction under the charter, by-laws, partnership agreement or
other organizational instrument of the Borrower, upon the transfer of such
Pledged Stock (except for any such restriction contained herein or in the
Basic Documents, or under such organizational instruments)."
2.03. Section 3.10 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"3.10 Business Activities. The Parent has not engaged in any
business activities other than in connection with Parent's continuing
ownership of the issued and outstanding shares of Capital Stock of the
Borrower, entering into lease guarantees in connection with leases entered
into by the Borrower and Nextel WIP Lease Corp. in the ordinary course of
business and the holding of Investments that would be permitted under
Section 6.07."
2.04. Section 3.11 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"3.11 Intentionally Omitted."
2.05. Section 3.12 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"3.12 Intentionally Omitted."
2.06. Section 3.13 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"3.13 Intentionally Omitted."
2.07. Section 3.14 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"3.14 Intentionally Omitted."
Amendment No. 1 to Parent Guaranty and Pledge Agreement
- 3 -
2.08. Section 4 of the Parent Guaranty and Pledge Agreement is
hereby amended by (i) amending the introductory language of Section 4(a) to read
in its entirety as follows and (ii) amending Section 4(a)(ii) to read in its
entirety as follows:
"(a) the shares of Capital Stock of the Borrower identified in Annex
3 and all other shares of Capital Stock of whatever class or character of
the Borrower, now or hereafter owned by the Parent, and all certificates
evidencing the same (collectively, the "Pledged Stock"), together with, in
each case;"
"(ii) without affecting the obligations of the Parent under any
provision prohibiting such action hereunder or under any Basic Document,
in the event of any consolidation or merger in which the Borrower is not
the surviving entity, all ownership interests of any class or character of
the successor entity (unless such successor entity is the Parent itself)
formed by or resulting from such consolidation or merger (the Pledged
Stock, together with all other certificates, shares, securities,
properties or moneys as may from time to time be pledged hereunder
pursuant to this clause (ii) or clause (i) above being herein collectively
called the "Stock Collateral"); and"
2.09. Section 6.04 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"6.04 Business Activities. The Parent will not engage in any
business activity other than in connection with the Parent's continuing
ownership of the issued and outstanding shares of Capital Stock of the
Borrower, entering into lease guarantees in connection with leases entered
into by the Borrower and Nextel WIP Lease Corp. in the ordinary course of
business and the holding of Investments permitted under Section 6.07."
2.10. Section 6.05 of the Parent Guaranty and Pledge Agreement is
hereby amended by (i) deleting the first sentence of Section 6.05 and (ii)
amending clause (d) to read in its entirety as follows:
"(d) lease guarantees by the Parent in connection with leases
entered into by the Borrower and Nextel WIP Lease Corp. in the ordinary
course of business; and"
2.11. Section 6.06 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"6.06 Liens, etc. The Parent will not create, incur, assume, or
enter into any agreement which by its terms creates, incurs or assumes any
Lien upon any of its assets
Amendment No. 1 to Parent Guaranty and Pledge Agreement
- 4 -
(including any shares of Capital Stock of the Borrower), whether now owned
or hereafter acquired by the Parent, except (i) any Lien created by this
Agreement and (ii) in the case of the Parent, Liens on cash or Permitted
Short Term Investments pledged as collateral to support Rate Protection
Agreements in an aggregate amount at any time not to exceed $30,000,000;
nor will the Parent sell, transfer, contribute or otherwise dispose of or
convey (or grant any options, warrants or other rights with respect
thereto) any shares of Capital Stock of the Borrower (except pursuant to a
transaction in which the principal of and interest on each Loan and all
fees payable under the Credit Agreement shall be paid in full and all
Letters of Credit shall have expired or be terminated and all LC
Disbursements shall be reimbursed or otherwise contemplated by Section
6.13 hereof)."
2.12. Section 6.07 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"6.07. Investments. The Parent will not make, incur, assume or
suffer to exist any Investment of the Parent in any other Person, except
(i) Investments in the Borrower, (ii) Investments in Nextel Ventures or
any other Permitted Joint Venture in an aggregate amount at any time
outstanding not to exceed $40,000,000 in cash and (iii) Permitted Short
Term Investments for the purpose of redeeming its Senior Notes."
2.13. Section 6.10 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"6.10. Consolidation, Merger. The Parent will not wind-up, liquidate
or dissolve, consolidate or amalgamate with, or merge into or with any
other corporation or purchase or otherwise acquire all or any part of the
assets of any Person (or division thereof); provided, however, that the
Parent may consolidate or amalgamate with, or merge into or with a
Permitted Person so long as the Permitted Person assumes all of the
obligations, liabilities, responsibilities and duties of the Parent under
the Loan Documents pursuant to an assumption agreement in form and
substance satisfactory to the Administrative Agent."
2.14. Section 6.13 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"6.13 Intentionally Omitted."
2.15. Section 7.04(a)(i) of the Parent Guaranty and Pledge Agreement
is hereby amended to read in its entirety as follows:
Amendment No. 1 to Parent Guaranty and Pledge Agreement
- 5 -
"(i) The Parent will cause the Stock Collateral to constitute at all
times 100% of the respective total number of shares of each class of
capital stock of the Borrower then outstanding."
2.16. Section 7.12 of the Parent Guaranty and Pledge Agreement is
hereby amended to read in its entirety as follows:
"7.12 Termination. When all Secured Obligations shall have been paid
in full and the Commitments of the Lenders under the Credit Agreement and
all LC Exposure shall have expired or been terminated (as used in this
Section 7.12, the "Termination Date"), this Agreement shall terminate, and
the Administrative Agent shall forthwith cause to be assigned, transferred
and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the Parent. The Administrative
Agent shall also, at the expense of the Parent, execute and deliver to the
Parent upon such termination such Uniform Commercial Code termination
statements and such other documentation as shall be reasonably requested
by the Parent to effect the termination and release of the Liens on the
Collateral."
2.17. Annex 3 of the Parent Guaranty and Pledge Agreement is hereby
amended as set forth in Annex 1 hereto.
2.18. References to "Cash Equivalent Investment" in the Parent
Guaranty and Pledge Agreement are hereby deleted and replaced with "Permitted
Short Term Investment".
Section 3. Nextel WIP License MR, Inc. By its signature below, the
Parent hereby represents and warrants that on May 14, 2004, Nextel WIP License
MR transferred all of its FCC Licenses and PUC Authorizations to Nextel WIP
License Corp., a Subsidiary of the Borrower, in compliance with Section 6.13 of
the Parent Guaranty and Pledge Agreement (as in effect prior to the
effectiveness of this Amendment No. 1) and thereafter was dissolved on December
6, 2004.
Section 4. Effectiveness. This Amendment No. 1 shall become
effective as of the date hereof upon the satisfaction of the conditions
precedent set forth in Section 4 of the Second Amended and Restated Credit
Agreement dated as of May 23, 2005 between the Borrower, the Subsidiary
Guarantors party thereto, each of the lenders listed on the signature pages
thereto, each of the lenders that becomes a party thereto as a Tranche D Term
Loan Lender pursuant to a Lender Addendum in the form of Schedule I thereto, and
the Administrative Agent (the "Credit Agreement").
Amendment No. 1 to Parent Guaranty and Pledge Agreement
- 6 -
Section 5. Confirmation of Guaranty and Pledge. The Parent, by its
execution of this Amendment No. 1, hereby confirms and ratifies that all
obligations of its respective obligations under the Parent Guaranty and Pledge
Agreement and the security interests and the guarantees granted thereunder shall
continue in full force and effect for the benefit of the Administrative Agent
and the Lenders with respect to the Credit Agreement and the Parent Guaranty and
Pledge Agreement as amended hereby and that the obligations of the Tranche D
Term Loans shall constitute "Guaranteed Obligations" and are entitled to the
benefits of the guarantee and collateral security provided in the Parent
Guaranty and Pledge Agreement.
Section 6. Miscellaneous. Except as herein provided, the Parent
Guaranty and Pledge Agreement shall remain unchanged and in full force and
effect. This Amendment No. 1 may be executed in any number of counterparts, all
of which taken together shall constitute one and the same agreement and any of
the parties hereto may execute this Amendment No. 1 by signing any such
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 1 to Parent Guaranty and Pledge Agreement
- 7 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and delivered as of the day and year first above
written.
NEXTEL PARTNERS, INC.
By /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Counsel
JPMORGAN CHASE BANK, N.A., as the
Administrative Agent
By
----------------------------------------
Name:
Title: Vice President
NEXTEL PARTNERS, INC.
By
-----------------------------------------
Name:
Title: VP, Secretary and General Counsel
JPMORGAN CHASE BANK, N.A., as the
Administrative Agent
By /s/ Xxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Amendment No. 1 to Parent Guaranty and Pledge Agreement
ANNEX 3
PLEDGED EQUITY
CLASS OF CAPITAL PERCENTAGE CLASS / PAR CERTIFICATE NUMBER OF
STOCK OWNED STOCK OWNERSHIP VALUE NO. SHARES
----------- ---------------- ---------- ----------- ----------- ---------
NPOC Common 100% $.001 1 100
Amendment No. 1 to Parent Guaranty and Pledge Agreement
EXECUTION COPY
Amendment No. 1 to Security Agreement
AMENDMENT NO. 1 dated as of May 23,2005 to the Security Agreement
referred to below (this "Amendment No. 1"), between NEXTEL PARTNERS OPERATING
CORP., a corporation duly organized and validly existing under the laws of the
State of Delaware (the "Borrower"); each of the Subsidiaries of the Borrower
identified under the caption "SUBSIDIARY GUARANTORS" on the signature pages
hereto (individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, together with the Borrower, the "Obligors"); and
JPMORGAN CHASE BANK, N.A., as the administrative agent for the lenders or other
financial institutions or entities party, as lenders, to the Credit Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
The Obligors and the Administrative Agent are parties to a Security
Agreement dated as of December 19, 2003 (as in effect immediately prior to the
effectiveness of this Amendment No. 1, the "Security Agreement"). The parties
hereto wish to amend the Security Agreement in certain respects. Accordingly,
the parties hereto hereby agree as follows:
Section 1. Definitions. Except as otherwise defined herein, terms
defined in the Security Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the condition
precedent specified in Section 3 hereof, the Security Agreement is hereby
amended as of the date hereof as set forth below:
2.01. References in the Security Agreement to "this Agreement" (and
indirect references such as "hereunder", "hereby", "herein" and "hereof) shall
be deemed to be references to the Security Agreement as amended hereby.
2.02. Section 5.13 of the Security Agreement is hereby amended to
read in its entirety as follows.
"5.13 Further Assurances.
(a) Further Assurances Generally. Each Obligor agrees that, from
time to time upon the written request of the Administrative Agent, such
Obligor will execute and deliver such further documents and do such other
acts and things as the Administrative Agent may reasonably request in
order fully to effect the purposes of this Agreement. The Administrative
Agent shall release any Lien covering any asset that has been
Amendment No. 1 to Security Agreement
- 2 -
disposed of pursuant to Section 7.08 of the Credit Agreement or that has
been disposed of with the consent of the Required Lenders under the Credit
Agreement.
(b) Re-Banding Spectrum Transactions. Upon any sale, lease, transfer
or other disposition of Licenses in connection with a Re-Banding Spectrum
Transaction consummated in accordance with the terms of the Credit
Agreement, the security interest in such Licenses shall, without further
action, automatically be released and the Administrative Agent will take
such action at the request and expense of the Borrower as shall be
necessary to (x) terminate and release the pledge and grant of liens
hereunder in any such Licenses (including, the delivery to the Borrower of
UCC-3 termination statements, or the authority to the Borrower to file
UCC-3 termination statements, and such other documents reasonably
requested by the Borrower to effect the termination and release of such
liens) and (y) amend this Agreement (or any Annex hereto) to remove any
representations or covenants therein that are applicable to the collateral
security specified therein. It is understood that the Licenses received in
a Re-Banding Spectrum Transaction shall be Collateral subject to the terms
of this Agreement."
2.03. References to "Cash Equivalent Investment" in the Security
Agreement are hereby deleted and replaced with "Permitted Short Term
Investment".
Section 3. Effectiveness. This Amendment No. 1 shall become
effective as of the date hereof upon the satisfaction of the conditions
precedent set forth in Section 4 of the Second Amended and Restated Credit
Agreement dated as of May 23, 2005 between the Obligors, each of the lenders
listed on the signature pages thereto, each of the lenders that becomes a party
thereto as a Tranche D Term Loan Lender pursuant to a Lender Addendum in the
form of Schedule I thereto, and the Administrative Agent (the "Credit
Agreement").
Section 4. Confirmation of Security Interests. Each of the Obligors,
by its execution of this Amendment No. 1, hereby confirms and ratifies that all
obligations of its respective obligations under the Security Agreement and the
security interests granted thereunder shall continue in full force and effect
for the benefit of the Administrative Agent and the Lenders with respect to the
Credit Agreement and the Security Agreement as amended hereby. Each of the
Obligors agrees that the obligations of the Borrower in respect of the Tranche D
Term Loans shall be entitled to the benefits of the collateral security provided
in the Security Agreement.
Sections 5. Miscellaneous. Except as herein provided, the Security
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same agreement and any of the parties hereto may
execute this Amendment No. 1 by signing any such
Amendment No. 1 to Security Agreement
- 3 -
counterpart. This Amendment No. 1 shall be governed by, and construed in
accordance with, the law of the State of New York.
Amendment No. 1 to Security Agreement
- 4 -
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and delivered as of the day and year first above
written.
NEXTEL PARTNERS OPERATING CORP.
By /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Counsel
SUBSIDIARY GUARANTORS
NEXTEL WIP LEASE CORP. NEXTEL WIP EXPANSION TWO CORP.
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Title: VP, Secretary and General
Counsel Counsel
NPCR, INC. NEXTEL WIP LICENSE CORP.
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Title: VP, Secretary and General
Counsel Counsel
NEXTEL WIP EXPANSION CORP. NEXTEL PARTNERS OF UPSTATE NEW YORK, INC.
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Title: VP, Secretary and General
Counsel Counsel
Amendment No. 1 to Security Agreement
- 5 -
NPFC, INC. NEXTEL PARTNERS EQUIPMENT CORP.
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxxx X. Xxxxxxx
------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: VP, Secretary and General Title: VP, Secretary and General
Counsel Counsel
Amendment No. 1 to Security Agreement
- 6 -
JPMORGAN CHASE BANK, N.A.,
as the Administrative Agent
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Amendment No. 1 to Security Agreement
