CONFORMED COPY
SUBSCRIPTION AND CONTRIBUTION AGREEMENT
dated as of
January 29, 1999
among
NEXTEL PARTNERS, INC.,
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock,
Series A Convertible Preferred Stock,
Series B Preferred Stock,
Series C Convertible Preferred Stock,
Series D Convertible Preferred Stock,
and
Warrants
of
Nextel Partners, Inc.
TABLE OF CONTENTS
-----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................2
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale..............................................5
SECTION 2.02. Closing........................................................6
SECTION 2.03. Subsequent Payments............................................6
SECTION 2.04. Remedies.......................................................8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 3.01. Corporate Existence and Power..................................9
SECTION 3.02. Corporate Authorization........................................9
SECTION 3.03. Governmental Authorization.....................................9
SECTION 3.04. Noncontravention...............................................9
SECTION 3.05. Capitalization and Voting Rights..............................10
SECTION 3.06. Valid Issuance of Securities..................................11
SECTION 3.07. Litigation....................................................11
SECTION 3.08. Newly Formed Corporation......................................11
SECTION 3.09. Representations of Buyers.....................................11
SECTION 3.10. Use of Proceeds...............................................12
SECTION 3.11. Corporate Documents...........................................12
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
SECTION 4.01. Existence and Power...........................................12
SECTION 4.02. Authorization.................................................12
SECTION 4.03. Governmental Authorization....................................13
SECTION 4.04. Noncontravention..............................................13
SECTION 4.05. Purchase for Investment.......................................13
SECTION 4.06. Private Placement.............................................13
SECTION 4.07. Litigation....................................................15
SECTION 4.08. Brokers or Finders' Fees......................................15
SECTION 4.09. Capital of DLJMB..............................................15
SECTION 4.10. Capital Commitment............................................15
SECTION 4.11. FCC Compliance; NWIP FCC Licenses.............................15
SECTION 4.12. Newly Formed Corporation......................................16
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and Seller............17
SECTION 5.02. Conditions to Obligation of Each Buyer........................18
SECTION 5.03. Conditions to Obligation of Seller............................19
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival......................................................19
SECTION 6.02. Indemnification...............................................20
SECTION 6.03. Exclusivity...................................................20
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Notices.......................................................21
SECTION 7.02. Amendments and Waivers........................................22
SECTION 7.03. Expenses......................................................22
SECTION 7.04. Successors and Assigns........................................22
SECTION 7.05. Governing Law.................................................22
SECTION 7.06. Jurisdiction..................................................22
SECTION 7.07. Waiver of Jury Trial..........................................23
SECTION 7.08. Counterparts; Third Party Beneficiaries.......................23
SECTION 7.09. Entire Agreement..............................................23
SECTION 7.10. Captions......................................................23
SECTION 7.11. Severability..................................................23
SECTION 7.12. Interpretation................................................24
SECTION 7.13. Remedies Cumulative...........................................24
SECTION 7.14. Subrogation...................................................24
ii
Schedule A Schedule of Investors
Schedule B Seller's Account Information
Schedule C NWIP FCC Licenses
Schedule D Exceptions to Section 4.11
Exhibit I List of Transaction Documents and Collateral Agreements
iii
SUBSCRIPTION AND CONTRIBUTION AGREEMENT
AGREEMENT dated as of January 29, 1999 between Nextel Partners, Inc., a
Delaware corporation ( the "COMPANY" or "SELLER"), and the Persons named on
Schedule A hereto (each a "BUYER" and collectively, the "BUYERS").
W I T N E S S E T H :
WHEREAS, to finance, in part, the building and operation of an 800 MHZ
digital wireless communications network, the Company intends to issue shares of
Series A Convertible Preferred Stock, par value $0.001 per share (the "SERIES A
PREFERRED"), Series B Preferred Stock, par value $0.001 per share (the "SERIES B
PREFERRED"), Series C Convertible Preferred Stock, par value $0.001 per share
(the "SERIES C PREFERRED"), and Series D Convertible Preferred Stock, par value
$0.001 per share (the "SERIES D PREFERRED" and, together with the Series A
Preferred, the Series B Preferred and, the Series C Preferred, the "PREFERRED
STOCK"), warrants to purchase shares of Class A Common Stock (the "WARRANTS"),
Class A Common Stock, par value $.001 per share (the "CLASS A COMMON STOCK"),
and Class B Common Stock, par value $.001 per share (the "CLASS B COMMON STOCK"
and, together with the Class A Common Stock, the "COMMON STOCK" and, together
with the Preferred Stock and the Warrants, the "SECURITIES").
WHEREAS, certain institutional investors and other cash investors
listed on the signature pages hereto wish to invest in the Company incident to
the building and operation of said digital wireless communications network;
WHEREAS, the Company desires to issue and sell the relevant Securities
to each of the Buyers, and each of the Buyers desires to purchase the relevant
Securities from Seller, upon the terms and subject to the conditions hereinafter
set forth;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person. For purposes of this definition, the terms "CONTROL" (including
with correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to vote or direct the voting of more than
50% of the outstanding shares of voting stock (or other ownership interests) of
such Person, or to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"ASSET TRANSFER AGREEMENT" means the Asset Transfer and Reimbursement
Agreement, dated as of the date hereof, between Opco and NWIP.
"CASH INVESTOR" means each Buyer other than NWIP and Motorola.
"CLOSING DATE" means the date of the Closing.
"COLLATERAL AGREEMENTS" means those agreements identified as such on
Exhibit I hereto.
"DLJ ENTITIES" means ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇., ▇▇▇
Diversified Partners, L.P., DLJMB Funding II, Inc., DLJ Merchant Banking
Partners II - A, L.P., DLJ Diversified Partners - A, L.P., DLJ Millennium
Partners, L.P., DLJ Millennium Partners - A, L.P., UK Investment Plan 1997
Partners, DLJ EAB Partners, L.P., DLJ ESC II L.P., DLJ First ESC L.P., and
Madison Dearborn Capital Partners II, L.P. ("MADISON DEARBORN").
"DLJMB" means DLJ Merchant Banking Partners II, L.P., a Delaware
limited partnership.
"EMPLOYMENT AGREEMENTS" means, collectively, the employment agreements
dated as of the date hereof, between Opco and each of the Management
Stockholders.
"FCC" means the Federal Communications Commission or similar regulatory
authority established in replacement thereof.
2
"FCC LAW" means the Communications Act of 1934, as amended, including
as amended by the Telecommunications Act of 1996, and the rules, regulations and
policies promulgated thereunder.
"FINANCINGS" means (i) the approximately $275 million senior secured
credit facility between Opco and a lending group led by DLJ Capital Funding
Inc., or an Affiliate thereof, (ii) the issuance and sale of $400 million in
aggregate principal amount of unsecured Senior Notes of Seller to be purchased
or privately placed by an underwriting group led by ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation and (iii) the issuance and sale of the Preferred Stock
and Warrants to Buyers.
"JOINT VENTURE AGREEMENT" means that certain Joint Venture Agreement,
dated as of the date hereof, by and among NWIP, the Company and Opco, as such
may be amended from time to time.
"LICENSE CO." means, Nextel WIP License Co., a Delaware corporation and
wholly-owned subsidiary of Nextel.
"LICENSE TRANSFER" means the transfer of the capital stock of License
Co. to the Company or a Subsidiary thereof.
"LIEN" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest or encumbrance in respect of such
property or asset, or any right of others therein.
"MANAGEMENT AGREEMENT" means that certain interim Management Agreement,
dated as of the date hereof, by and between Opco and NWIP as such may be amended
from time to time.
"MANAGEMENT STOCKHOLDERS" means ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ Aas, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇▇▇.
"MOTOROLA" means Motorola, Inc.
"MOTOROLA AGREEMENTS" means, collectively, (i) the Infrastructure
Equipment Purchase Agreement, dated as of the date hereof, by and between Opco
and Motorola and (ii) the Subscriber Equipment Purchase and Distribution
Agreement, dated as of the date hereof, by and between Opco and Motorola.
"MOTOROLA CONTRIBUTION" means the execution and delivery by Motorola of
the Motorola Agreements.
3
"NEXTEL" means Nextel Communications, Inc.
"NEXTEL AGREEMENT" means the Agreement Specifying Obligations of, and
Limiting Liability and Recourse to, Nextel, dated as of the date hereof, by and
among Nextel, Opco and the Company.
"NEXTEL CONTROLLED GROUP" means Nextel and its controlled Affiliates,
whether now existing or hereafter created or acquired.
"1999 STOCK OPTION PLAN" shall have the meaning set forth in the
Shareholders' Agreement.
"NWIP" means Nextel WIP Corp., a Delaware corporation.
"NWIP FCC LICENSES" means those FCC licenses set forth on Schedule C.
"1934 ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"1933 ACT" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"OPCO" means Nextel Partners Operating Corp., a Delaware corporation
and a wholly-owned subsidiary of the Company.
"PERSON" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"SHAREHOLDERS' AGREEMENTS" means that certain Shareholders' Agreement,
dated as of the date hereof, by and among the Company, NWIP, DLJMB, Eagle River
Investments, LLC ("EAGLE RIVER"), Motorola and certain other investors listed on
the signature pages thereof.
"TRANSACTION DOCUMENTS" means those documents listed on Exhibit I.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
Accredited Investor 4.06(h)
4
TERM SECTION
Buyers Recitals
Buyer Indemnified Party 6.02(a)
Class A Common Recitals
Class B Common Recitals
Closing 2.02
Common Stock Recitals
Company Recitals
Damages 6.02(a)
DLJ 4.09
DLJMB II, Inc. 4.09
Initial Cash Contribution 2.02(b)
Licenses 3.01
NWIP Contribution 2.02(b)
Pre-Closing Expenditures 5.01(g)
Preferred Stock Recitals
Purchase Price 2.01
Restated Certificate 3.05(a)
Securities Recitals
Seller Recitals
Seller Indemnified Party 6.02(b)
Series A Preferred Recitals
Series B Preferred Recitals
Series C Preferred Recitals
Series D Preferred Recitals
Subsequent Cash Contribution 2.03(a)
Subsequent Payment Date 2.03(a)
Warrants Recitals
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to issue and sell to each Buyer and
each Buyer irrevocably agrees in its own name severally and not jointly, to
purchase from Seller the Securities set forth opposite such Buyer's name on
Schedule A hereto at the Closing. In the event that any DLJ Entity fails to
purchase from Seller the Securities set forth opposite such DLJ Entity's name on
Schedule A hereto at the Closing, DLJMB agrees to purchase such Securities at
the Closing. The aggregate purchase price for the Securities (the "PURCHASE
5
PRICE") is the amount in cash or in assets specified on Schedule A hereto. The
Purchase Price shall be paid as provided in Section 2.02.
SECTION 2.02. Closing. The closing (the "CLOSING") of the purchase and
sale of the Securities hereunder shall take place at the offices of ▇▇▇▇▇, ▇▇▇▇▇
& ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as soon as possible, but in no event
later than five business days, after satisfaction of the conditions set forth in
Article 5, or at such other time or place as Buyers and Seller may agree. At the
Closing:
(a) Each Cash Investor shall deliver to Seller, in immediately
available funds, one-third (1/3) of the Purchase Price (the "INITIAL CASH
CONTRIBUTION") set forth opposite such Buyer's name on Schedule A hereto, by
wire transfer (or other means acceptable to Seller) to the account of Seller
described on Schedule B.
(b) NWIP will (i) execute and deliver to the Custodian one or more
stock certificates, together with stock powers duly executed in blank,
representing all the outstanding stock of License Co., together with irrevocable
instructions to release the stock of License Co. to Seller upon receipt of a
written notice from Seller and NWIP that FCC approval of the License Transfer
has been received, (ii) execute and deliver the Collateral Agreements, and (iii)
agree to use its reasonable best efforts to permit Seller to use the relevant
frequencies that are subject to the Frequency Sharing Agreement between Nextel
Communications, Inc. and Clearnet, Inc. dated January 31, 1995, as amended
(collectively the "NWIP CONTRIBUTION"). The transfer of the stock of License Co.
to Seller will occur immediately upon receipt by the Custodian of the notice
referred to above.
(c) Motorola will make the Motorola Contribution.
(d) Seller shall deliver to each Buyer certificates, or other
appropriate documentation, for the relevant Securities duly registered in the
name of such Buyer.
SECTION 2.03. Subsequent Payments. (a) Each Cash Investor shall deliver
additional payments of one-third (1/3) of such Cash Investor's Purchase Price
(each, a "SUBSEQUENT CASH CONTRIBUTION") to Seller in immediately available
funds, by wire transfer (or other means acceptable to Seller) to the account
described on Schedule B (or such other account as the Seller may from time to
time designate) on each of December 31, 1999 and December 31, 2000 (each, a
"SUBSEQUENT PAYMENT DATE").
(b) Seller has the right to (i) accelerate payment of each of the
Subsequent Cash Contributions by up to 90 days prior to the relevant Subsequent
Payment Date by providing the relevant Buyers with notice at least 30 days
before
6
the proposed payment date and (ii) assign the right to receive any unpaid
Subsequent Cash Contribution to a lender as security for an interim advance to
the Company by such lender.
(c) Each Cash Investor acknowledges and agrees that, if the Closing
occurs, its obligation to make payments to Seller of the relevant Subsequent
Cash Contributions constitutes an absolute, irrevocable and unconditional
obligation, and shall not be subject to claim, set-off, or other rights which
such Buyer may have at any time against the Seller. If a Buyer fails to pay a
Subsequent Cash Contribution to the Seller more than two business days after the
Subsequent Payment Date: (i) such defaulting party will be subject to liquidated
damages in the amount of 25% of its Securities (which liquidated damages, in the
case of the DLJ Entities, shall be paid to DLJMB (in lieu of the Company), if
DLJMB timely paid (or caused to be paid timely) the Subsequent Cash
Contribution), (ii) all remaining Subsequent Cash Contributions of such
defaulting party shall become immediately due and payable in full, (iii) the
outstanding amount shall accrue interest at a rate per annum equal to 200 basis
points over the highest rate of interest charged from time to time by the
Seller's senior lenders, (iv) the rights of such defaulting party under the
Shareholders' Agreement but none of its obligations will terminate and (v) the
Series A Preferred Stock of such defaulting party will convert to Class A Common
Stock in accordance with the Restated Certificate.
(d) Without limiting Section 2.03(c), in the event that any DLJ Entity
fails to make any Subsequent Cash Contribution on the applicable Subsequent
Payment Date, DLJMB shall make (or shall cause to be made) such Subsequent Cash
Contribution within two business days of such Subsequent Payment Date. DLJMB
acknowledges and agrees that, if the Closing occurs, its obligation to make
payments to Seller of Subsequent Cash Contributions of other DLJ Entities
pursuant to the preceding sentence constitutes an absolute, irrevocable and
unconditional obligation, and shall not be subject to claim, set-off, or other
rights which DLJMB may have at any time against the Seller nor shall the Seller
be required to exhaust any remedies against the defaulting party before
proceeding against DLJMB to enforce this Section 2.03(d) against DLJMB. In the
event of a payment default by DLJMB under this paragraph (d), (i) all remaining
Subsequent Cash Contributions of DLJMB shall become immediately due and payable
in full, (ii) the outstanding amount shall accrue interest at a rate per annum
equal to 200 basis points over the highest rate of interest charged from time to
time by the Seller's senior lenders, (iii) the Series A Preferred of DLJMB will
convert to Class A Common Stock in accordance with the Restated Certificate and
(iv) the rights of DLJMB but none of its obligations under the Shareholders'
Agreement will terminate.
7
(e) In the event that a Cash Investor transfers all or part of its
Securities in advance of completing its payment obligations under Article 2,
such Cash Investor shall remain primarily liable for the transferee's remaining
Subsequent Cash Payments.
(f) NWIP covenants and agrees that it will cause the representations
and warranties in Section 4.12 to remain true and correct at all times from the
date hereof until the License Transfer has been consummated and shall also use
its commercially reasonable best efforts to cause the representations and
warranties set forth in Section 4.11 to remain true and correct at all times
from the date hereof until the License Transfer has been consummated. NWIP
agrees that, upon such approval of the FCC as will permit the License Transfer
to be lawfully consummated, such transfer will thereupon be deemed to be
accomplished without any further action on the part of NWIP, and the Company and
the Custodian are hereby irrevocably authorized at such time to deliver the
stock certificates and completed stock power in such manner as necessary and
appropriate to consummate (i) the License Transfer and (ii) the pledge of the
stock of License Co. to Opco's senior lenders as contemplated by the terms of
Opco's senior secured credit facility.
SECTION 2.04. Remedies. Each Buyer acknowledges that the Seller is a
start-up company and agrees that as such the Seller would suffer irreparable
harm, including the great harm to its ability to operate in accordance with its
business plan during its critical start-up phase, in the event that such Buyer
failed to pay in full, as and when due, its portion of the Purchase Price. The
parties agree that if any provision of this Article 2 is not performed by a
Buyer in accordance with its specific terms or is otherwise breached,
irreparable damage to the Seller would occur, no adequate remedy at law would
exist and damages would be difficult to determine, and that the Seller will
therefore be entitled to (i) specific performance of the terms of this Article
2, (ii) the remedies set forth in Sections 2.03(c) and 2.03(d), including,
liquidated damages in the amount of 25% of such Buyer's Securities (which
damages are intended by the parties to compensate the Seller for the harm
suffered by reason of such Buyer's failure to pay when due its portion of the
Purchase Price, it being understood and agreed that recovery of damages in an
amount equal to such portion of the Purchase Price plus accrued interest thereon
shall not be sufficient to adequately compensate the Seller for such harm) and
(iii) any other remedy available under this Agreement or otherwise at law or in
equity.
8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to each Buyer as of the date hereof
that:
SECTION 3.01. Corporate Existence and Power. Each of Seller and Opco is
a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals ("LICENSES"), required
to carry on its business as now conducted.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by each of Seller and Opco of each of the Transaction Documents to
which it is a party and the consummation of the transactions contemplated hereby
and thereby (including the issuance and sale of the Securities) are within
Seller's or Opco's (as applicable) corporate powers and have been duly
authorized by all necessary corporate action on the part of such corporation.
Each of the Transaction Documents to which it is a party constitutes or, when
executed, will constitute a valid and binding agreement of each of Seller and
Opco, enforceable against Seller and Opco in accordance with its respective
terms, except (i) as limited by the applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors' rights generally, or (ii) as limited by laws relating
to the availability of specific performance, injunctive relief, or other
equitable remedies.
SECTION 3.03. Governmental Authorization. The execution, delivery and
performance by Seller and Opco of each of the Transaction Documents to which it
is a party and the consummation of the transactions contemplated hereby and
thereby require no order, license, consent, authorization or approval of, or
exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official except such as have
been made or obtained and, with respect to its conduct of business after the
Closing as contemplated by the Joint Venture Agreement, such of the foregoing as
Seller reasonably expects to obtain in the ordinary course of business.
SECTION 3.04. Noncontravention. The execution, delivery and performance
by Seller and Opco of each of the Transaction Documents to which it is a party
and the consummation of the transactions contemplated hereby and thereby do not
and will not (i) violate the Restated Certificate or the by-laws of the Seller
or the Certificate of Incorporation or by-laws of Opco, (ii) violate any
applicable law, rule, regulation, judgment, injunction, order or decree, (iii)
require any consent or other action by any Person under, constitute a default
under (with due notice or lapse of time or both), or give rise to any right of
termination,
9
cancellation or acceleration of any right or obligation of Seller or Opco or to
a loss of any material benefit to which Seller or Opco is entitled under any
provision of any agreement or other instrument binding upon Seller or Opco or
any of Seller's or Opco's assets or properties or (iv) result in the creation or
imposition of any material Lien on any property or asset of Seller or Opco.
SECTION 3.05. Capitalization and Voting Rights. (a) The authorized
capital stock of Seller consists of 75,000,000 shares of Class A Common Stock,
25,000,000 shares of Class B Common Stock and 70,000,000 shares of preferred
stock, and the outstanding capital stock of Seller immediately prior to the
Closing is 1,588,888 shares of Class A Common Stock, no shares of Class B Common
Stock and no shares of preferred stock. The rights, privileges and preferences
of the Class A and Class B Common Stock and the Series A, Series B, Series C and
Series D Preferred Stock are set forth in the Restated Certificate of
Incorporation (the "RESTATED CERTIFICATE").
(b) Immediately following the Closing the outstanding securities of
Seller will be 1,588,888 shares of Class A Common Stock, no shares of Class B
Common Stock, 17,479,999 shares of Series A Preferred, 2,185,000 shares of
Series B Preferred, 8,740,000 shares of Series C Preferred, 2,185,000 shares of
Series D Preferred, the Warrants, options issued or issuable under the 1999
Stock Option Plan, and options to purchase 35,000 shares of Class A Common Stock
issued to ▇▇▇▇ ▇▇▇▇▇▇▇▇.
(c) The authorized capital stock of Opco consists of 200 shares of
common stock. Immediately following the Closing the outstanding capital stock of
Opco will be 100 shares of common stock. The Seller owns all the outstanding
capital stock of Opco.
(d) Except as set forth in this Section 3.05 there are, and immediately
after the Closing there will be, no outstanding (i) shares of capital stock or
voting securities of the Seller or Opco, (ii) securities of the Seller or Opco
convertible into or exchangeable for shares of capital stock or voting
securities of the Seller or Opco, as the case may be, (iii) options or other
rights to acquire from the Seller or Opco, or other obligation of the Seller or
Opco to issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of the Seller or
Opco, or (iv) other than as expressly permitted in the Transaction Documents, no
obligation of the Seller or Opco to repurchase or otherwise acquire or retire
any shares of capital stock or any convertible securities, rights or options of
the type described in (i), (ii), or (iii).
SECTION 3.06. Valid Issuance of Securities. Each of the Securities
which are being issued to the Buyers hereunder have been duly and validly
authorized
10
and when issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be fully paid and nonassessable.
SECTION 3.07. Litigation. (a) There is no action, suit, investigation
or proceeding pending against, or to the knowledge of Seller, threatened against
or affecting Seller or any of its properties before any court or arbitrator or
any governmental body, agency or official which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement or which could reasonably be expected to have a
material adverse effect on the business, financial condition, properties or
operations of Seller, nor is Seller aware that there is any basis for the
foregoing.
(b) There is no action, suit, investigation or proceeding pending
against, or to the knowledge of Opco, threatened against or affecting Opco or
any of its properties before any court or arbitrator or any governmental body,
agency or official which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated by this Agreement or
which could reasonably be expected to have a material adverse effect on the
business, financial condition, properties or operations of Opco, nor is Opco
aware that there is any basis for the foregoing.
SECTION 3.08. Newly Formed Corporation. Seller was incorporated on July
8, 1998 in the State of Delaware solely for the purpose of effectuating the
transactions contemplated in this Agreement and the other Transaction Documents
and has not conducted any business or entered into any agreements or commitments
except with respect to the foregoing and, as of the date hereof, has no
obligations or liabilities other than (i) those arising under, or contemplated
by, the Transaction Documents or the Financings, (ii) those representing amounts
due to its outside professional advisors in connection with services rendered by
them to the Company and/or Opco to prepare for or facilitate consummation of the
transactions contemplated to occur at the Closing and (iii) other miscellaneous
immaterial obligations and liabilities that in the aggregate collectively amount
to less than $10,000.
SECTION 3.09. Representations of Buyers. Seller has not relied on any
representations or warranties of Buyers or any Affiliate of Buyers not made in
this Agreement or any of the other Transaction Documents. Seller has not relied
on and acknowledges that no representations have been made by any Buyers or any
officers, employees, Affiliates, agents or representatives of Buyers, or any
Management Stockholder, except for representations and warranties expressly set
forth in this Agreement and the other Transaction Documents. Seller has not
relied on and acknowledges that no representations or warranties have been made
11
by NWIP with respect to FCC matters and FCC Law except for representations and
warranties expressly set forth in Section 4.11.
SECTION 3.10. Use of Proceeds. The proceeds from the Financings will be
used to fund the build out of, and operating and transaction expenses relating
to, the Seller's wireless communications network (including reimbursement of
certain capital expenditures and operating expenses incurred by Nextel (and/or
its subsidiaries) and Eagle River) in accordance with the Company's business
plan.
SECTION 3.11. Corporate Documents. All requisite action has been taken
(including all action required under the applicable laws of the State of
Delaware) to cause the Restated Certificate and the by-laws of the Company and
the Certificate of Incorporation and the by-laws of Opco to be duly and validly
adopted, properly filed and in full force and effect.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer (or in the case of Section 4.09, DLJMB only, and Sections
4.11 and 4.12, NWIP only) represents and warrants to Seller (or in the case of
Section 4.06, to Seller, NWIP and Nextel), severally as to itself only and not
jointly or as to any other Buyer that as of the date hereof (and in the case of
Sections 4.11 and 4.12, as of the date of the completion of the License
Transfer):
SECTION 4.01. Existence and Power. Such Buyer, if not an individual, is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all powers (corporate, partnership or
otherwise) and all Licenses required to carry on its business as now conducted.
Such Buyer, if an individual, has the legal capacity to enter into this
Agreement and the Shareholders' Agreement.
SECTION 4.02. Authorization. The execution, delivery and performance by
such Buyer of each of this Agreement, and when executed, the Shareholders'
Agreement (and, in the case of each of NWIP and Motorola, each of the other
Transaction Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby are or, when executed, will be
within the powers (corporate, partnership or otherwise) of such Buyer and have
been or will have been duly authorized by all necessary action on the part of
such Buyer. This Agreement constitutes and the Shareholders' Agreement (and, in
the case of each of NWIP and Motorola, each of the other Transaction Documents
to which it is a party), when executed, will constitute a valid and binding
agreement of such Buyer, each enforceable in accordance with their respective
terms, except (i) as limited by the applicable bankruptcy, insolvency,
reorganization,
12
moratorium, and other laws of general application affecting enforcement or
creditors' rights generally, or (ii) as limited by laws relating to the
availability of specific performance, injunctive relief, or other equitable
remedies.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of this Agreement and the Shareholders' Agreement
(and, in the case of each of NWIP and Motorola, each of the other Transaction
Documents to which it is a party) and the consummation of the transactions
contemplated hereby and thereby require no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental body, agency or
official except as contemplated by Section 2.02(b)(i) and as set forth in
Article 5.
SECTION 4.04. Noncontravention. The execution, delivery and performance
by such Buyer of each of the relevant Transaction Documents and the consummation
of the transactions contemplated hereby and thereby do not and will not (i)
violate the organizational documents of such Buyer, (ii) violate any applicable
law, rule, regulation, judgment, injunction, order or decree, (iii) require any
consent or other action by any Person under, constitute a default under (with
due notice or lapse of time or both), or give rise to any right of termination,
cancellation or acceleration of any right or obligation of such Buyer (or, in
the case of NWIP, NWIP or License Co.) or to a loss of any material benefit to
which such Buyer (or, in the case of NWIP, NWIP or License Co.) is entitled
under any provision of any agreement or other instrument binding upon such Buyer
(or, in the case of NWIP, NWIP or License Co.) or any of its assets or
properties, to the extent that any of the foregoing would have a material
adverse effect on such Buyer or would prevent or otherwise render such Buyer
unable to perform its obligations under any Transaction Document to which it is
a party or (iv) result in the creation or imposition of any material Lien on any
property or asset of such Buyer (or, in the case of NWIP, NWIP or License Co.),
to the extent that any of the foregoing would have a material adverse effect on
such Buyer or would prevent or otherwise render such Buyer unable to perform its
obligations under any Transaction Document to which it is a party.
SECTION 4.05. Purchase for Investment. Such Buyer is purchasing the
relevant Securities for investment for its own account and not with a view to,
or for sale in connection with, any distribution thereof.
SECTION 4.06. Private Placement. (a) Such Buyer understands that (i)
the offering and sale of the Securities hereby is intended to be exempt from
registration under the 1933 Act and (ii) there is only a limited market for the
Securities, and there can be no assurance that any Buyer will be able to sell or
dispose of the Securities to be purchased by such Buyer.
13
(b) Such Buyer's financial situation is such that such Buyer can afford
to bear the economic risk of holding the relevant Securities acquired hereunder
for an indefinite period of time, and such Buyer can afford to suffer the
complete loss of the investment in such Securities.
(c) Such Buyer's knowledge and experience in financial and business
matters are such that it is capable of evaluating the merits and risks of the
investment in the relevant Securities, or such Buyer has been advised by a
representative possessing such knowledge and experience.
(d) Such Buyer understands that the Securities acquired hereunder are a
speculative investment which involves a high degree of risk of loss of the
entire investment therein, that there are substantial restrictions on the
transferability of the Securities as set forth in the Shareholders' Agreement,
and that for an indefinite period following the date hereof there will be no (or
only a limited) public market for the Securities and that, accordingly, it may
not be possible for such Buyer to sell the Securities in case of emergency or
otherwise.
(e) Such Buyer and its representatives, including, to the extent it
deems appropriate, its professional, financial, tax and other advisors, have
reviewed all documents provided to them in connection with the investment in the
Securities, and such Buyer understands and is aware of the risks related to such
investment.
(f) Such Buyer and its representatives have been given the opportunity
to examine all documents and to ask questions of, and to receive answers from,
Seller and its representatives and Nextel and its representatives concerning the
terms and conditions of the acquisition of the Securities and related matters
and to obtain all additional information which such Buyer or its representatives
deem necessary.
(g) All written information which such Buyer has provided to Seller and
its representatives and Nextel and its representatives concerning such Buyer and
such Buyer's financial position was true, complete and correct at the time it
was provided.
(h) Such Buyer is an "ACCREDITED INVESTOR" as such term is defined in
Regulation D under the 1933 Act.
(i) Such Buyer is not relying on and acknowledges that no
representation is being made by any other Buyer, or any of its officers,
employees, Affiliates, agents or representatives, the Seller or any of its
officers, employees, Affiliates, agents or representatives, Nextel or any of its
officers, employees, Affiliates, agents or representatives, or any Management
Stockholder, except for
14
representations and warranties expressly set forth in this Agreement and the
other Transaction Documents.
SECTION 4.07. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer threatened against
or affecting, such Buyer before any court or arbitrator or any governmental
body, agency or official which could be reasonably expected to have a material
adverse effect on its ability to consummate the transactions contemplated by
this Agreement or the Shareholders' Agreement.
SECTION 4.08. Brokers or Finders' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by, will be
retained by or is authorized to act on behalf of such Buyer who might be
entitled to any fee or commission from the Seller upon consummation of the
transactions contemplated by this Agreement.
SECTION 4.09. Capital of DLJMB. DLJ Merchant Banking II, Inc. ("DLJMB
II, INC.") is an indirect wholly-owned subsidiary of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, Inc. ("DLJ") and is the managing general partner of DLJMB and certain
affiliated investment vehicles that coinvest with DLJMB. DLJMB and the other DLJ
Entities have committed capital of $3 billion, of which approximately 60%
remains available for investment. The scheduled term of DLJMB extends through
2005 and no event or circumstance has occurred that would reasonably be expected
to cause the term of DLJMB to expire or be subject to termination prior to the
last Subsequent Payment Date. Through DLJMB and the other DLJ Entities, DLJMB
II, Inc. has access to freely available cash in an amount sufficient to make in
full and in a timely manner all committed investments contemplated to be made by
it (including its transferees, if any) hereunder, including the Subsequent Cash
Contributions, in the aggregate amount of $74,249,720. As of the date hereof,
each of the DLJ Entities is an Affiliate of DLJ.
SECTION 4.10. Capital Commitment. Each Cash Investor has, and will have
on the Closing Date and on any Subsequent Payment Date, cash available to it in
an amount sufficient to make its Initial Cash Contribution or Subsequent Cash
Contribution, as the case may be, in accordance with the terms of Article 2.
SECTION 4.11. FCC Compliance; NWIP FCC Licenses. (a) License Co. is the
holder of the NWIP FCC Licenses. Except as disclosed in Schedule D, each of the
NWIP FCC Licenses is valid and in full force and effect. Except as disclosed
in Schedule D, there are no conditions on the NWIP FCC Licenses that would
likely have a material adverse effect on such licenses or their use in an ESMR
network in the Territories as contemplated by the Joint Venture Agreement other
than those as set forth on the face of the NWIP FCC Licenses or in statutes and
15
FCC rules and policies of general applicability to the commercial mobile radio
industry. Except as disclosed in Schedule D, there is no complaint,
investigation, notice of violation, or other proceeding against, or otherwise
relating to, the NWIP FCC Licenses, License Co. or any member of the Nextel
Controlled Group pending or, to the knowledge of License Co. or any member of
the Nextel Controlled Group, threatened by or before the FCC (i) that would
likely have a material adverse effect on the NWIP FCC Licenses or their use in
an ESMR network in the Territories as contemplated by the Joint Venture
Agreement, (ii) which questions or contests the validity of, or assignment to
the Company or any member of the Nextel Controlled Group, or seeks the
revocation, nonrenewal or suspension of, any of the NWIP FCC Licenses, (iii)
which seeks the imposition of any modification or amendment with respect to any
of the NWIP FCC Licenses, or (iv) which could reasonably be expected to
adversely affect the ability of Seller to build and operate an iDEN system after
the Closing Date substantially as contemplated by the relevant Transaction
Documents other than proceedings which generally affect the commercial mobile
radio industry. Except as disclosed in Schedule D, License Co. and the Nextel
Controlled Group are in compliance in all material respects with the FCC Law,
and the rules and regulations of the FCC, including without limitation all
applicable eligibility criteria for holding the NWIP FCC Licenses, except to the
extent that noncompliance would not likely have a material adverse effect on the
NWIP FCC Licenses or their use in an ESMR Network in the Territories as
contemplated by the Joint Venture Agreement.
(b) NWIP reaffirms the representations and warranties set forth in
Section 4.11(a) as of the date of the License Transfer, provided, that the
Seller acknowledges that NWIP is not responsible for a breach of such
representations and warranties under Section 4.11(a) resulting from any action
or inaction by the Seller or any of its subsidiaries with respect to such NWIP
FCC Licenses.
SECTION 4.12. Newly Formed Corporation. License Co. was incorporated on
November 4, 1998 in the State of Delaware solely for the purpose of effectuating
the transactions contemplated in this Agreement and the other Transaction
Documents and has not conducted any business or entered into any agreements or
commitments except with respect to the foregoing and has no obligations or
liabilities other than (i) those arising under, or contemplated by, the
Transaction Documents or the Financings and (ii) other miscellaneous immaterial
obligations and liabilities that in the aggregate collectively amount to less
than $10,000. License Co. has furnished to the Company a true and correct copy
of its Certificate of Incorporation and by-laws as in effect on the Closing
Date. The authorized capital stock of License Co. consists of 100 shares of
common stock, no par value. The outstanding capital stock of License Co. is 100
shares of common stock, all of which shares have been duly and validly
authorized, and are fully paid and nonassessable. NWIP owns all the outstanding
capital stock of
16
License Co. free and clear of any liens, and License Co. has no subsidiaries.
Except as set forth in this Section 4.12, there are no outstanding (i) shares of
capital stock or voting securities of License Co., (ii) securities of License
Co. convertible into or exchangeable for shares of capital stock or voting
securities of License Co., (iii) options or other rights to acquire from License
Co., or other obligation of License Co. to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of License Co., or (iv) obligation of License Co. to
repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in (i), (ii), or
(iii). License Co. (x) has obtained such proper authorization as may be required
from its Board of Directors and its shareholders of all corporate action taken
by License Co., (y) keeps its assets and liabilities separate from those of
other entities (including Nextel and the Affiliates thereof) and (z) does not
hold itself out as being liable for the debts of Nextel or any Affiliate
thereof.
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and Seller. The
obligations of each Buyer and Seller to consummate the Closing are subject to
the satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation and no
effective or pending judgment, injunction, order or decree by any governmental
entity of competent jurisdiction shall prohibit the consummation of the Closing.
(b) All material actions by or in respect of, or filings with, any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or obtained.
(c) The conditions to the execution and delivery of the other
Transaction Documents shall have been satisfied or waived and each of the other
Transaction Documents shall have been executed and delivered with any waiver of
conditions and any other changes having been consented to by each of NWIP,
DLJMB, Eagle River, and Motorola.
(d) The Restated Certificate shall have been duly filed at the office
of the Secretary of State of the State of Delaware.
17
(e) Subject to Section 2.01, each other Buyer shall have purchased the
Securities to be purchased by it hereunder by paying the Purchase Price
applicable thereto in accordance with Section 2.02.
(f) Seller shall have received cash proceeds of at least $575 million
from debt financing on terms and conditions acceptable to each of DLJMB, Eagle
River, Motorola and NWIP.
(g) The Company shall reimburse NWIP and Eagle River for Pre- Closing
Expenditures set forth in a detailed written estimate provided to the Company,
DLJMB and each other Shareholder at least ten days prior to Closing. Within 60
days after the date hereof, representatives of the Company shall meet with
representatives of NWIP and Eagle River to adjust such estimates and to agree on
the amount of any additional reimbursement by (or refund to) the Company. Any
dispute that arises as a result of such discussions shall be submitted to
arbitration pursuant to Section 12.7 of the Joint Venture Agreement.
"PRE-CLOSING EXPENDITUREs" means capital expenditures and operating expenses
made and incurred by Nextel (and its Affiliates) and Eagle River prior to the
date hereof for assets, properties, rights or services (other than the capital
expenditures and operating expenses paid for or reimbursed pursuant to the Asset
Transfer Agreement)) in order to facilitate the construction of the Company's
ESMR Network in the Territory (as such terms are defined in the Joint Venture
Agreement).
(h) Each of the Management Stockholders shall have executed and
delivered to Seller an Employment Agreement.
(i) Any applicable waiting period under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended shall have expired or been terminated.
SECTION 5.02. Conditions to Obligation of Each Buyer. The obligation of
each Buyer to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) (i) Seller shall have performed in all material respects all of its
obligations hereunder required to be performed by it on or prior to the Closing
Date and (ii) the representations and warranties of Seller contained in this
Agreement and in any certificate or other writing delivered by Seller pursuant
hereto shall be true in all material respects when made and at and as of the
Closing Date, as if made at and as of such date.
(b) Each Buyer shall have received all documents and evidence it may
reasonably request relating to the existence of Seller and the authority of
Seller to
18
execute, deliver and perform this Agreement, all in form and substance
reasonably satisfactory to such Buyer.
SECTION 5.03. Conditions to Obligation of Seller. The obligation of
Seller to consummate the Closing with respect to any Buyer is subject to the
satisfaction of the following further conditions:
(a) (i) Each Buyer shall have performed in all material respects all of
its obligations hereunder required to be performed by it at or prior to the
Closing Date and (ii) the representations and warranties of such Buyer contained
in this Agreement and in any certificate or other writing delivered by such
Buyer pursuant hereto shall be true in all material respects when made and at
and as of the Closing Date, as if made at and as of such date.
(b) Seller shall have received all documents it may reasonably request
relating to the existence of such Buyer and the authority of such Buyer to
execute, deliver and perform this Agreement, all in form and substance
reasonably satisfactory to Seller. Seller shall have received from NWIP true and
correct copies of all the documentation relating to (i) the transfer of assets
contemplated by the Asset Transfer Agreement and (ii) the provision by Nextel
and/or its subsidiaries to NWIP of the rights necessary to perform its
obligations under the Collateral Agreements.
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival. The representations and warranties of the
parties hereto contained in this Agreement or in any certificate delivered
pursuant hereto or in connection herewith shall survive the Closing until three
years after the Closing Date, provided that any party's representations and
warranties herein relating to payment in full of the Purchase Price or issuance
or delivery of Securities upon payment therefore, shall survive until such
payments, issuances and deliveries have been made or performed in full.
Notwithstanding the preceding sentence, any representation or warranty in
respect of which indemnity may be sought under this Agreement shall survive the
time at which it would otherwise terminate pursuant to the preceding sentence,
if written notice of the inaccuracy or breach thereof giving rise to such right
of indemnity shall have been given to the party against whom such indemnity may
be sought prior to such time, but only as to such inaccuracy or breach. Any
actual or alleged breach of any representation or warranty made in this
Agreement shall not affect in any manner
19
whatsoever the relative rights and obligations of the parties to and under the
Shareholders' Agreement.
SECTION 6.02. Indemnification. (a) Seller hereby indemnifies, severally
and not jointly, each Buyer and its Affiliates, limited partners, general
partners, directors, officers and employees (each, a "BUYER INDEMNIFIED PARTY")
against and agrees to hold each of them harmless from any and all damage, loss,
liability and expense (including, without limitation, reasonable expenses of
investigation and reasonable attorneys' fees and expenses in connection with any
action, suit or proceeding) ("DAMAGES") incurred or suffered by any Buyer
Indemnified Party arising out of any misrepresentation or breach of warranty,
covenant or agreement made or to be performed by Seller pursuant to this
Agreement except to the extent (but only to the extent) any such Damages arise
out of or result from the gross negligence or willful misconduct of such Buyer
Indemnified Party or its Affiliates.
(b) Each Buyer hereby indemnifies, severally and not jointly, Seller
and its Affiliates, limited partners, general partners, directors, officers and
employees (each, a "SELLER INDEMNIFIED PARTY") against and agrees to hold each
of them harmless from any and all Damages incurred or suffered by any Seller
Indemnified Party arising out of any misrepresentation or breach of warranty,
covenant or agreement made or to be performed by such Buyer pursuant to this
Agreement except to the extent (but only to the extent) any such Damages arise
out of or result from the gross negligence or willful misconduct of such Seller
Indemnified Party or its Affiliates.
SECTION 6.03. Exclusivity. After the Closing, Section 6.02 will provide
the exclusive remedy for any misrepresentation, breach of warranty, covenant or
other agreement or other claim arising out of this Agreement or the transactions
contemplated hereby except that Sections 2.03 and 2.04 will also provide
remedies for any breach under Article 2 (it being understood that the remedial
provisions of the other Transaction Documents shall apply to any
misrepresentation, breach of warranty, covenant or other agreement or other
claim arising thereunder).
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given,
20
if to any Buyer, to such Buyer at the address specified by such Buyer
on the signature pages of this Agreement or in a notice given by such Buyer to
Seller for such purpose, provided that in the case of Buyers that are DLJ
Entities, a copy shall be sent to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
if to Seller , to:
Nextel Partners, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to 5
p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business day in the place of
receipt.
SECTION 7.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
21
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 7.03. Expenses. The Company shall pay the fees and expenses set
forth in Section 8.06 of the Shareholders' Agreement. Notwithstanding the
preceding sentence, any Buyer that defaults in its payment obligations under
Article 2 shall pay on demand the Seller's costs (including reasonable
attorney's fees and expenses) of enforcement.
SECTION 7.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns and indemnified persons; provided
that except as provided in Section 2.03 no party may assign, delegate or
otherwise transfer any of its rights or obligations under this Agreement without
the consent of each other party hereto; provided however, that the Company may
collaterally assign its rights and interest in this Agreement to Opco's senior
lenders that have granted to members of the Nextel Group the rights described on
Exhibit 4.13 to the Joint Venture Agreement (or other rights as Nextel may
agree).
SECTION 7.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 7.06. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 7.01 shall be deemed
effective service of process on such party.
22
SECTION 7.07. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 7.08. Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other parties hereto. No
provision of this Agreement shall confer upon any Person other than the parties
hereto (and Persons entitled to indemnification under Article 6 and Nextel,
which is entitled to rely on the representations and warranties made in Section
4.06) any rights or remedies hereunder.
SECTION 7.09. Entire Agreement. This Agreement along with the
Shareholders' Agreement (including the documents, schedules and exhibits
referred to herein and therein) and the other Transaction Documents constitute
the entire agreement between the parties with respect to the subject matter of
this Agreement and supersedes all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter of this
Agreement.
SECTION 7.10. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 7.11. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
SECTION 7.12. Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 7.13. Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise or beginning
of the exercise of any thereof by any party shall not preclude the simultaneous
or later exercise of any other such right, power or remedy by such party.
23
SECTION 7.14. Subrogation. Madison Dearborn acknowledges that DLJMB is
a third party beneficiary of its obligations to make Subsequent Cash
Contributions pursuant to Section 2.03. Upon a payment to Seller by DLJMB of a
Madison Dearborn Subsequent Cash Contribution pursuant to Section 2.03(d), DLJMB
shall be subrogated to the rights of Seller against Madison Dearborn with
respect to such Subsequent Cash Contribution payment obligations.
24
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
NEXTEL PARTNERS, INC., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
NEXTEL WIP CORP., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy of notice to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
North Point
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy of notice to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited
Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc., as
advisory general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc., as
managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ FIRST ESC, L.P.,
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
UK INVESTMENT PLAN 1997 PARTNERS,
a Delaware Limited Partnership
By: UK Investment Plan 1997 Partners,
Inc. as general partner
By: /s/ ▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: c/o DLJ Merchant Banking II,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
MADISON DEARBORN CAPITAL
PARTNERS II, L.P.
By: Madison Dearborn Partners II, L.P.,
its General Partner
By: Madison Dearborn Partners, Inc.,
its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
EAGLE RIVER INVESTMENTS, LLC,
a Washington limited liability company
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
MOTOROLA, INC., a Delaware corporation
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President and
General Manager Network
Systems Group
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
CASCADE INVESTMENTS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Business Manager
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
MADRONA INVESTMENT GROUP, L.L.C.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
AMPERSAND HOLDINGS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Manager, Operations
Address: c/o GE Capital Services
Structured Finance Group,
Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Portfolio-
Operations
Fax: ▇▇▇-▇▇▇-▇▇▇▇
NMS CAPITAL, L.P.
By: NMS Capital Management, LLC,
the sole General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Member
Address: ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES Management, L.P.
By: ARES Operating Member, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ARES LEVERAGED INVESTMENT
FUND II, L.P.
By: ARES Management II, L.P.
By: ARES Operating Member II, LLC,
its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
THE ▇▇▇▇ ALTERNATIVE INCOME FUND, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President of General Manager
Address: 1776 On the Green
▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
TCW/CRESCENT MEZZANINE PARTNERS II, L.P.
TCW/CRESCENT MEZZANINE TRUST II
By: TCW/CRESCENT MEZZANINE II, L.P.,
its general partner or managing owner
By: TCW/CRESCENT MEZZANINE, L.L.C.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇ ▇▇ the Green
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW ASSET MANAGEMENT COMPANY,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SHARED OPPORTUNITY FUND IIB, LLC
By: TCW ASSET MANAGEMENT COMPANY,
as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW INVESTMENT MANAGEMENT
COMPANY, as Investment Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (▇▇▇▇ ▇▇), L.P.,
as General Partner
By: TCW ADVISORS (BERMUDA), LTD.,
as General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
By: TCW INVESTMENT MANAGEMENT
COMPANY, as Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW (BERMUDA), LIMITED,
as General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Group Managing Director
By: TCW INVESTMENT MANAGEMENT
COMPANY, as Investment Advisor
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
JDT-JRT L.L.C.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
JRC COHO L.L.C.
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Manager