Exhibit 10.42
ASSIGNMENT AND SECURITY AGREEMENT
THIS ASSIGNMENT AND SECURITY AGREEMENT (this "Assignment Agreement"),
dated as of September 9, 1999, made by NEXTEL PARTNERS OPERATING CORP., a
Delaware corporation (the "Grantor"), in favor of BANK OF MONTREAL, as
administrative agent (together with any successor(s) thereto in such capacity,
the "Administrative Agent") for each of the Secured Parties (as defined below).
WITNESSETH:
WHEREAS, pursuant to an Amended and Restated Credit Agreement, dated as of
September 9, 1999 (the "Amended and Restated Credit Agreement"), amending and
restating in its entirety the Credit Agreement, dated as of January 29, 1999 (as
amended, supplemented, amended and restated or otherwise modified prior to the
Restatement Effective Date (as defined in the Amended and Restated Credit
Agreement), the "Credit Agreement"), among the Grantor, the various commercial
lending institutions (individually a "Lender" and collectively the "Lenders") as
are, or may from time to time become, parties thereto, DLJ Capital Funding,
Inc., as syndication agent, The Bank of New York, as documentation agent, and
the Administrative Agent, the Lenders have extended a Term-C Loan Commitments to
make Term-C Loans to the Grantor;
WHEREAS, as a condition precedent to the making of the Term-C Loans under
the Amended and Restated Credit Agreement, the Grantor is required to execute
and deliver this Assignment Agreement; and
WHEREAS, the Grantor has duly authorized the execution, delivery and
performance of this Assignment Agreement;
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
to make the Term-C Loans to the Grantor pursuant to the Amended and Restated
Credit Agreement, the Grantor agrees, for the benefit of each Secured Party, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Assignment Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amended and Restated Credit Agreement" is defined in the preamble.
"Assigned Agreements" is defined in Section 2.1.
"Assignment Agreement" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Grantor" is defined in the preamble.
"Lenders" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, any Lender or the
Administrative Agent and each of its respective successors, transferees and
assigns.
"U.C.C." means the Uniform Commercial Code, as in effect in the State of
New York.
SECTION 1.2. Amended and Restated Credit Agreement Definitions. Unless
otherwise defined herein or the context otherwise requires, terms used in this
Assignment Agreement, including its preamble and recitals, have the meanings
provided in the Amended and Restated Credit Agreement.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided in the U.C.C.
are used in this Assignment Agreement, including its preamble and recitals, with
such meanings.
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ARTICLE II
ASSIGNMENT, ETC.
SECTION 2.1. Assignment. The Grantor hereby assigns to the Administrative
Agent for its benefit and the ratable benefit of each of the Secured Parties,
and hereby grants to the Administrative Agent for its benefit and the ratable
benefit of each of the Secured Parties a security interest in, all of the
Grantor's right, title and interest, whether now existing or hereafter arising
or acquired, in and to the following (collectively, the "Collateral"):
(a) each agreement described on Schedule I hereto, as each such
agreement may be amended or otherwise modified from time to time (as so
amended or modified, collectively, the "Assigned Agreements")
(b) all of the Grantor's rights and benefits (whether monetary or
otherwise), whether benefits due or to become due, under or pursuant to
any Assigned Agreement,
(c) all rights of the Grantor to receive proceeds of any insurance,
indemnity, warranty, guaranty or collateral security with respect to any
Assigned Agreement,
(d) all claims of the Grantor for damages arising out of or for
breach of or default under any Assigned Agreement,
(e) all rights of the Grantor to terminate any Assigned Agreement,
to perform thereunder and to compel performance and otherwise exercise all
remedies thereunder, and
(f) to the extent not included in the foregoing, all proceeds of any
and all of the foregoing collateral.
SECTION 2.2. Security for Obligations. This Assignment Agreement secures
the payment of all Obligations now or hereafter existing under the Amended and
Restated Credit Agreement and each other Loan Document to which any Obligor is
or may become a party, whether for principal, interest, costs, fees, expenses or
otherwise (all such obligations, collectively, the "Secured Obligations").
SECTION 2.3. Continuing Assignment and Security Interest; Transfer of
Notes. This Assignment Agreement shall create a continuing assignment of and
security interest in the Collateral and shall
(a) remain in full force and effect until payment in full in cash of
all Secured Obligations then due, the termination or expiration of all
Letters of Credit and the termination of all Commitments,
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(b) be binding upon the Grantor, its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative Agent
and each other Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Credit Extension
held by it to any other Person or entity, and such other Person or entity shall,
to the extent of such transfer, thereupon become vested with all the rights and
benefits in respect thereof granted to such Lender under any Loan Document
(including this Assignment Agreement) or otherwise, subject, however, to any
contrary provisions in such assignment, or transfer, and to the provisions of
Section 10.11 and Article IX of the Credit Agreement. Upon the payment in full
in cash of all Secured Obligations then due, the termination or expiration of
all Letters of Credit and the termination of all Commitments, the security
interest granted herein shall terminate and all rights to the Collateral shall
revert to the Grantors. Upon any such termination, the Administrative Agent
will, at the sole expense of the Grantor, execute and deliver to the Grantor
such instruments as the Grantor shall reasonably request to evidence such
termination.
SECTION 2.4. Grantor Remain Liable. Anything herein to the contrary
notwithstanding,
(a) the Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as
if this Assignment Agreement had not been executed,
(b) the exercise by the Administrative Agent of any of its rights
hereunder shall not release the Grantor from any of its duties or
obligations under the contracts and agreements included in the Collateral,
and
(c) neither the Administrative Agent nor any other Secured Party
shall have any obligation or liability under any such contracts or
agreements included in the Collateral by reason of this Assignment
Agreement, nor shall the Administrative Agent or any other Secured Party
be obligated to perform any of the obligations or duties of the Grantor
thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
SECTION 2.5. Security Interest Absolute. All rights of the Administrative
Agent and the security interests granted to the Administrative Agent hereunder,
and all obligations of the Grantor hereunder, shall be absolute and
unconditional, irrespective of
(a) any lack of validity or enforceability of the Amended and
Restated Credit Agreement or any other Loan Document,
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(b) the failure of any Secured Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Grantor, any other Obligor or any other Person
under the provisions of the Amended and Restated Credit Agreement,
any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of the Grantor
or any other Obligor,
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations or any other extension,
compromise or renewal of any Obligation of the Grantor or any other
Obligor,
(d) any reduction, limitation, impairment or termination of any
Obligations of the Grantor or any other Obligor for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Grantor hereby waives any right to or
claim of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of the Grantor, any other Obligor or
otherwise,
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of the Amended and
Restated Credit Agreement or any other Loan Document,
(f) any addition, exchange, release, surrender or non-perfection of
any collateral (including the Collateral), or any amendment to or waiver
or release of or addition to or consent to departure from any guaranty,
for any of the Obligations, or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Grantor,
any other Obligor, any surety or any guarantor.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Grantor represents and warrants unto each Secured Party as set forth
in this Article.
SECTION 3.1. Representations and Warranties. The Grantor represents and
warrants unto each Secured Party as set forth in this Section 3.2.
(a) Validity, etc. This Assignment Agreement constitutes, and each other
Loan Document executed by the Grantor will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of the Grantor
enforceable in accordance with their respective terms, in each case, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general principles (whether considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(b) Validity of Assigned Agreements. Each Assigned Agreement, a true and
complete copy of which has been furnished to each Lender, has been duly
authorized, executed and delivered by the parties thereto, has not been amended
or otherwise modified except as set forth in Section 2.1, and is in full force
and effect and is binding upon and enforceable against the parties thereto in
accordance with its terms. As of the date hereof, the Grantor has fully
performed all of its obligations under each Assigned Agreement, to the extent
required under such Assigned Agreement to be performed on or prior to the date
hereof, and no other party to any Assigned Agreement has any defense, setoff or
counterclaim arising under such Assigned Agreement. There exists no default
under any Assigned Agreement by any party thereto.
(c) Location of Collateral. The place(s) of business and chief executive
office of the Grantor and the office(s) where the Grantor keep their respective
records concerning the Collateral, and the original copies of all chattel paper
which evidences the Collateral, are located at the address specified for the
Grantor opposite its name on Schedule II hereto. The Grantor has no trade name
other than as set forth on Schedule II hereto. The Grantor has not been known by
any legal name different from the one set forth on the signature page hereto,
nor has the Grantor been the subject of any merger or other corporate
reorganization, except as set forth on Schedule II hereto. To the extent that
any Assigned Agreement or other Collateral constitutes chattel paper, such
chattel paper has been delivered to the Administrative Agent. None of the
Collateral is evidenced by a promissory note or other instrument.
(d) Ownership, No Liens, etc. The Grantor owns the Collateral free and
clear of any Lien, security interest, charge or encumbrance except for the
security interest created by this Assignment Agreement. No effective financing
statement or other instrument similar in effect
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covering all or any part of the Collateral is on file in any recording office,
except such as may have been filed in favor of the Administrative Agent relating
to this Assignment Agreement.
(e) Validity, etc. This Assignment Agreement creates a valid first
priority security interest in the Collateral, securing the payment of the
Secured Obligations, and all filings and other actions necessary or desirable to
perfect and protect such security interest have been duly taken.
(f) Authorization, Approval, etc. No authorization, approval or other
action by, and no notice to or filing (other than U.C.C. filings which will be
made on or prior to the Closing Date) with, any governmental authority or
regulatory body is required either
(i) for the grant by the Grantor of the assignment and security
interest granted hereby or for the execution, delivery and performance of
this Assignment Agreement by the Grantor, or
(ii) for the perfection of or the exercise by the Administrative
Agent of its rights and remedies hereunder.
(g) Compliance with Laws. The Grantor is in compliance with the
requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which could reasonably be
expected to have a Material Adverse Effect or which could reasonably be expected
to materially adversely affect the value of any Collateral or the worth of the
Collateral as collateral security.
ARTICLE IV
COVENANTS
SECTION 4.1. Certain Covenants. The Grantor covenants and agrees that,
until payment in full of all Secured Obligations then due, the termination or
expiration of all Letters of Credit and the termination of all Commitments, such
Grantor will, unless the Required Lenders shall otherwise consent in writing,
perform, comply with and be bound by the Obligations set forth in this Article
IV.
SECTION 4.1.1 As to the Assigned Agreements. The Grantor shall at its
expense:
(a) perform and observe all the terms and provisions of the Assigned
Agreements to be performed or observed by it, maintain each Assigned
Agreement in full force and effect except as otherwise permitted by the
Credit Agreement, enforce each Assigned Agreement in accordance with its
terms, and take all such action to
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such end as may be from time to time reasonably requested by the
Administrative Agent; and
(b) furnish to the Administrative Agent promptly upon receipt
thereof copies of all material notices, requests and other documents
delivered by or to the Grantor under or pursuant to any Assigned Agreement
which notice, request or document (x) relates to any default or
nonperformance of the Grantor or any counterparty to such Assigned
Agreement or any termination of such Assigned Agreement or (y) relates to
the occurrence (or nonoccurrence) of any event which could reasonably be
expected to have a Material Adverse Effect or a material adverse effect on
the ability of the Grantor or such counterparty to perform its obligations
under such Assigned Agreement, and from time to time
(i) furnish to the Administrative Agent such information and
reports regarding the Collateral as the Administrative Agent may
reasonably request and
(ii) upon request of the Administrative Agent make to any
other party to any Assigned Agreement such demands and requests for
information and reports or for action as the Grantor is entitled to
make under any Assigned Agreement.
SECTION 4.1.2 Transfers and Other Liens. The Grantor agrees for the
benefit of the Administrative Agent and the Secured Parties that it shall not:
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral, or create or suffer to exist any Lien,
security interest or other charge or encumbrance upon or with respect to
any of the Collateral to secure Indebtedness of any Person or entity,
except for the assignment and security interest created by this Assignment
Agreement;
(b) cancel or terminate any Assigned Agreement or consent to or
accept any cancellation or termination thereof other than in accordance
with its terms; or
(c) amend or otherwise modify any Assigned Agreement, waive any
default under or breach of any Assigned Agreement, or take any other
action in connection with any Assigned Agreement which, in any case, would
reasonably be expected to impair the value of the interest or rights of
the Grantor thereunder or which would impair the interest or rights of the
Administrative Agent.
SECTION 4.1.3 Further Assurances. The Grantor agrees that from time to
time, at the expense of the Grantor, the Grantor will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Administrative Agent may request, in
order to perfect and protect the assignment and
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security interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral. Without limiting the generality of the
foregoing, the Grantor will
(a) if any Collateral shall be evidenced by a promissory note or
other instrument, negotiable document or chattel paper, deliver and pledge
to the Administrative Agent hereunder such promissory note or instrument,
negotiable document or chattel paper duly indorsed and accompanied by duly
executed instruments of transfer or assignment, all in form and substance
satisfactory to the Administrative Agent; and
(b) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be
necessary or desirable, or as the Administrative Agent may request, in
order to perfect and preserve the assignment and security interest granted
or purported to be granted hereby; and
(c) xxxx conspicuously each copy of any Collateral that constitutes
chattel paper and, at the request of the Administrative Agent, each of its
records pertaining to the Collateral with a legend, in form and substance
satisfactory to the Administrative Agent, indicating that such Collateral
has been assigned and are subject to the security interest pursuant
hereto.
With respect to the foregoing and the grant of the security interest hereunder,
the Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of the Grantor where permitted
by law. A carbon, photographic or other reproduction of this Assignment
Agreement or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
SECTION 4.1.4 Place of Perfection; Records; Prior Notice of Name Change.
The Grantor shall keep its place(s) of business and chief executive office and
the office(s) where it keeps its records concerning the Collateral, and the
original copies of any chattel paper which evidences any Collateral, at the
location therefor specified in Section 3.1.2 or, upon 30 days' prior written
notice to the Administrative Agent, at such other location in a jurisdiction
where all action required by Section 4.1.3 shall have been taken with respect to
the Collateral. The Grantor will hold and preserve such records and will permit
representatives of the Administrative Agent at any time during normal business
hours to inspect and make abstracts from such records. The Grantor agrees that
it will not change its name except upon 30 days' prior written notice to the
Administrative Agent.
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ARTICLE V
THE ADMINISTRATIVE AGENT
SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The Grantor
hereby irrevocably appoints the Administrative Agent the Grantor's
attorney-in-fact, with full authority in the place and stead of the Grantor and
in the name of the Grantor or otherwise, from time to time following the
occurrence and during the continuance of an Event of Default, to take any action
(including any action under any Assigned Agreement that the Grantor is entitled
to take) and to execute any instrument which the Administrative Agent may deem
necessary or advisable to accomplish the purposes of this Assignment Agreement,
including, without limitation:
(a) after the occurrence and continuance of an Event of Default, to
ask, demand, collect, xxx for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in
connection with the Collateral;
(b) to receive, indorse, and collect any drafts or other
instruments, documents and chattel paper in connection with clause (a)
above;
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem to be necessary or
desirable for the collection thereof or to enforce compliance with the
terms and conditions of the Assigned Agreements; and
(d) to perform the affirmative obligations of the Grantor hereunder
(including all obligations of the Grantor pursuant to Section 4.1.1 and
Section 4.1.3).
The Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION 5.2. Administrative Agent May Perform. If the Grantor fails to
perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Grantor pursuant to Section 6.2.
SECTION 5.3. Administrative Agent Has No Duty. In addition to, and not in
limitation of, Section 2.4 the powers conferred on the Administrative Agent
hereunder are solely to protect its interest (on behalf of the Secured Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
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SECTION 5.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Grantor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Event of Default, but failure of the
Administrative Agent to comply with any such request at any time shall not in
itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have occurred
and be continuing:
(a) the Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the U.C.C. (whether or not the U.C.C. applies to
the affected Collateral) and also may exercise any and all rights and
remedies of the Grantor under or in connection with any Assigned Agreement
or otherwise in respect of the Collateral, including, without limitation,
any and all rights of the Grantor to demand or otherwise require payment
of any amount under, or performance of any provision of, any Assigned
Agreement;
(b) all payments received by the Grantor under or in connection with
any Assigned Agreement or otherwise in respect of the Collateral shall be
received in trust for the benefit of the Administrative Agent, shall be
segregated from other funds of the Grantor and shall be forthwith paid
over to the Administrative Agent in the same form as so received (with any
necessary indorsement); and
(c) all payments made under or in connection with any Assigned
Agreement or otherwise in respect of the Collateral and received by the
Administrative Agent may, in the discretion of the Administrative Agent,
be held by the Administrative Agent as collateral for, and/or then or at
any time thereafter applied (after payment of any amounts payable to the
Administrative Agent pursuant to Section 6.2) in whole or in part by the
Administrative Agent for the ratable benefit of the Secured Parties
against, all or any part of the Secured Obligations in such order as the
Administrative Agent shall elect. Any surplus of such payments held by the
Administrative Agent and remaining after payment in full of all the
Secured Obligations shall be paid over to the Grantor or to whomsoever may
be lawfully entitled to receive such surplus.
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SECTION 6.2. Indemnity and Expenses.
(a) The Grantor hereby agrees, jointly and severally, to indemnify the
Administrative Agent from and against any and all claims, losses and liabilities
arising out of or resulting from this Assignment Agreement (including, without
limitation, enforcement of this Assignment Agreement), except claims, losses or
liabilities resulting from the Administrative Agent's gross negligence or wilful
misconduct.
(b) The Grantor agrees, jointly and severally, that it will upon demand
pay to the Administrative Agent the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel and of any experts and
agents, which the Administrative Agent may incur in connection with
(i) the administration of this Assignment Agreement,
(ii) the custody or preservation of, or the collection from or other
realization upon, any of the Collateral,
(iii) the exercise or enforcement of any of the rights of the
Administrative Agent or the Secured Parties hereunder, or
(iv) the failure by the Grantor to perform or observe any of the
provisions hereof.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Assignment Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof.
SECTION 7.2. Amendments; etc. No amendment to or waiver of any provision
of this Assignment Agreement nor consent to any departure by the Grantor
herefrom shall in any event be effective unless the same shall be in writing and
signed by the Administrative Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION 7.3. Addresses for Notices. All notices, requests and other
communications provided to any party hereto under this Agreement shall be in
writing or by facsimile and addressed, delivered or transmitted to such party as
follows: (x) in the case of the Grantor or the Administrative Agent, at its
address or facsimile number set forth on
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Schedule II to the Credit Agreement and (y) in the case of any party, at such
other address or facsimile number as may be designated by such party in a notice
to the other parties. Any notice, (i) if mailed and properly addressed with
postage prepaid or (ii) if properly addressed and sent by pre-paid courier
service, shall be deemed given when received, or (iii) if transmitted by
facsimile, shall be deemed given when transmitted (and telephonic confirmation
of receipt thereof has been received).
SECTION 7.4. Captions. Section captions used in this Assignment Agreement
are for convenience of reference only, and shall not affect the construction of
this Assignment Agreement.
SECTION 7.5. Severability. Wherever possible each provision of this
Assignment Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Assignment Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Assignment Agreement.
SECTION 7.6. Governing Law, Entire Agreement, etc. THIS ASSIGNMENT
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR
PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THIS
ASSIGNMENT AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 7.7. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE GRANTOR SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE
COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
THE GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS
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SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GRANTOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY GRANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE GRANTOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS ASSIGNMENT AGREEMENT.
SECTION 7.8. Waiver of Jury Trial. THE SECURED PARTIES AND THE GRANTOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE GRANTOR. THE GRANTOR ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE CREDIT
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
- 14 -
IN WITNESS WHEREOF, the Grantor has caused this Assignment Agreement to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
NEXTEL PARTNERS OPERATING CORP.
By: /s/ Xxxx X. [ILLEGIBLE]
-------------------------------------
Title: CFO
SCHEDULE I
Assigned Agreements
Expansion Territory Asset Transfer and Reimbursement Agreement dated as of
September 9, 1999 between Nextel WIP Corp. and Nextel Partners Operating Corp.
Expansion Territory Management Agreement dated as of September 9, 1999 between
Nextel WIP Corp. and Nextel Partners Operating Corp.
Supplement No. 1 to Infrastructure Equipment Purchase Agreement between the
Borrower and Motorola, Inc.
First Amendment to Analog Management Agreement between the Borrower and NWIP
SCHEDULE II
Location of Collateral, etc.
Grantor: Nextel Partners Operating Corp.
Item 1. Place(s) of business and chief executive office of such Grantor and the
office(s) where such Grantor keeps its records concerning the Collateral, and
the original copies of all chattel paper which evidences the Collateral:
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Item 2. Trade Names:
None
Item 3. Other Legal Names:
None
Item 4. Mergers or other corporate reorganizations
None
Grantor: Nextel Partners, Inc.
Item 1. Place(s) of business and chief executive office of such Grantor and the
office(s) where such Grantor keeps its records concerning the Collateral, and
the original copies of all chattel paper which evidences the Collateral:
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Item 2. Trade Names:
None
Item 3. Other Legal Names:
None
Item 4. Mergers or other corporate reorganizations
None
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ANNEX I
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (this "Consent"), dated as of September 9,
1999, is made by and between [NEXTEL WIP CORP., a Delaware corporation][NEXTEL
WIP LEASE CORP., a Delaware corporation] [MOTOROLA, INC., a Delaware
corporation] [NEXTEL COMMUNICATIONS, INC., a Delaware corporation] (the
"Counterparty") and BANK OF MONTREAL, as Administrative Agent (the
"Administrative Agent") for the Lenders (as defined below). Capitalized terms
used herein, and not otherwise defined herein, shall have the meanings ascribed
to them in the Credit Agreement referred to below.
WHEREAS, the Counterparty has entered into the agreements listed on
Schedule I hereto (as amended, supplemented, amended and restated or otherwise
modified from time to time, collectively, the "Assigned Agreements")
WHEREAS, Nextel Partners Operating Corp., a Delaware corporation (the
"Borrower") has entered into an Amended and Restated Credit Agreement, dated as
of September 9, 1999 (the "Amended and Restated Credit Agreement"), amending and
restating in its entirety the Credit Agreement, dated as of January 29, 1999 (as
amended, supplemented, amended and restated, restructured or otherwise modified
from time to time, including any refinancing in whole or in part thereof, the
"Credit Agreement"), among the Borrower, certain commercial lending institutions
(the "Lenders") and the Administrative Agent, pursuant to which the Lenders have
agreed to make Credit Extensions to the Borrower;
WHEREAS, as security for the Obligations, Nextel Partners, Inc., a
Delaware corporation (the "Parent"), the Borrower and Nextel WIP Lease Corp.,
("Realco") (each, an "Assignor" and collectively, the "Assignors") have assigned
to the Administrative Agent, for the benefit of the Secured Parties (as defined
in the Assignment Agreement referred to below), all of their respective right,
title and interest under (but not any of their obligations, liabilities or
duties with respect thereto) the Assigned Agreements (the "Assigned Rights")
pursuant to the Assignment and Security Agreement dated as of September 9, 1999
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Assignment Agreement") made by the Parent, the Borrower and Realco
in favor of the Administrative Agent for the benefit of the Secured Parties;
WHEREAS, the execution and delivery by the Counterparty of this Consent is
a condition precedent to the effectiveness of the transactions contemplated by
the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties hereto agree as follows:
SECTION 1. The Counterparty hereby irrevocably consents to:
(a) the assignment by the Assignors to the Administrative Agent for
the benefit of the Secured Parties of the Assigned Rights as security for
the performance of the Obligations;
(b) any subsequent transfer by the Administrative Agent of the
Assigned Rights to any Person that may become a successor Administrative
Agent; and
(c) to the extent any such transfer would have been permitted to
have been made by the applicable Assignor under the applicable Assigned
Agreement, any subsequent transfer of the Assigned Rights to any Person in
connection with the Administrative Agent's or any successor Administrative
Agent's exercise of its rights and remedies, at law, in equity or
otherwise; provided, that each such Person shall have assumed in writing
all of the duties and obligations of the applicable Assignor under the
Assigned Agreement arising on or after the date of such assumption.
SECTION 2. The Counterparty agrees as set forth below:
(a) the assignments referred to in Section 1 shall be fully binding
and effective against the Counterparty and shall not constitute a breach
or default under the Assigned Agreement;
(b) upon the transfer of the Assigned Rights to any Person pursuant
to Section 1(c) above, such Person shall succeed to all rights and
benefits of the Assignors under the Assigned Agreement to the same extent
as if such Person were named in place of the applicable Assignor in the
Assigned Agreement;
(c) notwithstanding the assignments referred to in Sections 1(a)
through 1(c) above, no Assignor shall be relieved of any duty or
obligation under the Assigned Agreement;
(d) the Counterparty shall send to the Administrative Agent a copy
of any written notice provided by the Counterparty to any Assignor
regarding any event, occurrence or omission (a "Breach") giving rise to
the Counterparty's right to exercise any remedies under the Assigned
Agreement, and the Administrative Agent will have the same right, if any,
to cure the Breach as the applicable Assignor (but will have no obligation
to cure) during the same time period afforded to the applicable Assignor;
and
(e) in the event that either (i) the Assigned Agreement is rejected,
in whole or in part, by a trustee or debtor-in-possession in any
bankruptcy or insolvency proceeding regarding any Assignor or (ii) the
Assigned Agreement is deemed to be in whole or in part a contract to
extend "financial accommodations" within the meaning of Xxxxxxx 000 xx xxx
Xxxxxx Xxxxxx Bankruptcy Code, 11 U.S.C. ss. 365, and the order regarding
an event described in clause (i) or (ii) has not been stayed, within 60
days
-2-
after an event described in clause (i) or (ii) has occurred, the
Administrative Agent or its assignee or designee may undertake in writing
to the Counterparty that it intends and is legally authorized to perform
the obligations of the applicable Assignor under the Assigned Agreement
and shall otherwise satisfy the conditions of clauses (i) and (ii) above,
and in such event the Counterparty will execute and deliver to the
Administrative Agent or such assignee or designee a new agreement (a "New
Agreement") with regard to that portion of the Assigned Agreement affected
by an event described in clause (i) or (ii) above, as the case may be,
upon the same terms and conditions as set forth in such affected portion
of the Assigned Agreement. Such New Agreement shall be for the balance of
the then remaining term under the Assigned Agreement before giving effect
to such event described in clause (i) or (ii) above, as the case may be,
and shall contain the same conditions, agreements, terms, provisions and
limitations as the Assigned Agreement (except for any requirements that
have been fulfilled by the applicable Assignor prior to such rejection).
References in this Section 2 to "the Assigned Agreement" shall be deemed
also to refer to the New Agreement.
SECTION 3. Miscellaneous.
(a) Separate Counterparts: Amendments. Waiver. This Consent may be
executed in separate counterparts, each of which when so executed and
delivered shall be an original but all such counterparts shall constitute
one and the same instrument. Neither this Consent nor any of the terms
hereof may be terminated, amended, supplemented, waived or modified except
by an instrument in writing signed by each of the Counterparty and the
Administrative Agent or any successor Administrative Agent, as the case
may be.
(b) Severability of Provisions. Any provision of this Consent which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
(c) Successors and Assigns. This Consent shall be binding upon and
shall inure to the benefit of the Counterparty and its permitted
successors and assigns and the Administrative Agent and any successor
Administrative Agent.
(d) Governing Law. THIS CONSENT SHALL IN ALL RESPECTS BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
-3-
(e) Obligations Absolute and Unconditional. The Counterparty's
obligations hereunder are absolute and unconditional, except as otherwise
provided herein, and the Counterparty has no right, and shall have no
right, to terminate this Consent or to be released, relieved or discharged
from any obligation hereunder except for material default by the
Administrative Agent of its obligations hereunder or upon the earlier of
(i) the expiration or other termination of the Assigned Agreement or (ii)
the repayment in full of all Secured Obligations then due, the termination
or expiration of all Letters of Credit and the termination of all
Commitments under the Credit Agreement.
(f) No Duty of Administrative Aaent to Direct Proceeds. etc. Nothing
herein shall be construed to impose upon the Administrative Agent or the
Counterparty any duty to direct the application of the Loans contemplated
by the Credit Agreement. The Counterparty acknowledges and agrees that the
Administrative Agent is not obligated under the Credit Agreement to the
Counterparty or any of its subcontractors, materialmen, suppliers or
laborers. The Administrative Agent acknowledges and agrees that the
Counterparty is not obligated under the Credit Agreement to the
Administrative Agent or any of its subcontractors, materialmen, suppliers
or laborers. The Counterparty is executing this Consent to induce the
Lenders to make the Credit Extensions under the Credit Agreement.
(g) Addresses for Notices. All notices and other communications
provided to any party hereto under this Consent shall be in writing or
facsimile and addressed, delivered or transmitted (receipt confirmed
telephonically) to such party at its address or facsimile number set forth
below its signature hereto or at such other address or facsimile number as
may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any notice, if transmitted by facsimile, shall be
deemed given when transmitted.
(h) Waiver of Jury Trial. EACH OF THE COUNTERPARTY AND THE
ADMINISTRATIVE AGENT (ON BEHALF OF ITSELF, ANY SUCCESSOR ADMINISTRATIVE
AGENT AND EACH LENDER) HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS CONSENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE
COUNTERPARTY HEREUNDER THE COUNTERPARTY ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS MAKING CREDIT
EXTENSIONS UNDER THE CREDIT AGREEMENT.
-4-
(i) Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
CONSENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES OR THE COUNTERPARTY
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF
NEW YORK, COUNTY OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK. EACH OF THE COUNTERPARTY AND THE
ADMINISTRATIVE AGENT (ON BEHALF OF ITSELF, ANY SUCCESSOR ADMINISTRATIVE
AGENT AND EACH LENDER) HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, COUNTY OF NEW YORK,
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY SUCH LITIGATION SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGEMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION TO WHICH IT IS A PARTY. EACH OF THE
COUNTERPARTY AND THE ADMINISTRATIVE AGENT (ON BEHALF OF ITSELF ANY
SUCCESSOR ADMINISTRATIVE AGENT AND EACH LENDER) FURTHER IRREVOCABLY
CONSENTS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE, TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH OF THE COUNTERPARTY
AND THE ADMINISTRATIVE AGENT (ON BEHALF OF ITSELF, ANY SUCCESSOR
ADMINISTRATIVE AGENT AND EACH LENDER) HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR
HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
COUNTERPARTY OR THE ADMINISTRATIVE AGENT HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURTS OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, THE COUNTERPARTY OR THE ADMINISTRATIVE AGENT, AS APPLICABLE,
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS CONSENT.
-5-
IN WITNESS WHEREOF, each of undersigned parties has caused this Consent to
be executed by its officer thereunto duly authorized as of the day and year
first above written.
[NEXTEL WIP CORP.]
[NEXTEL WIP LEASE CORP.]
[MOTOROLA, INC.]
[NEXTEL COMMUNICATIONS, INC.]
By:_____________________________________
Title:
Address:
Facsimile No.:
Attention:
BANK OF MONTREAL, as
Administrative Agent
By:_____________________________________
Title:
Address: 000 X. XxXxxxx Xx.
00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (0 00)-000-0000
Attention: Xxxxx Xxxxx-Xxxx
-6-
SCHEDULE I TO
CONSENT AND AGREEMENT
Assigned Agreements
Asset Transfer and Reimbursement Agreement dated as of September 9, 1999 between
the Borrower and NWIP
Expansion Territory Management Agreement dated as of September 9, 1999 between
the Borrower and NWIP
Supplement No. 1 to iDEN Infrastructure Equipment Purchase Agreement between the
Borrower and Motorola, Inc.
First Amendment to Analog Management Agreement between the Borrower and NWIP
