1
EXHIBIT 99.1
MASTER EQUIPMENT FINANCING AGREEMENT
dated as of
February 4, 1999
by and between
NEXTEL INTERNATIONAL, INC.,
THE LENDERS NAMED HEREIN,
and
MOTOROLA CREDIT CORPORATION,
as Administrative Agent and as Collateral Agent
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TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.2 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 1.3 Accounting Principles and Terms . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 2 ADVANCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.1 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.2 Procedure for Borrowing; Advances . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.3 Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.4 Repayment of Principal of Advances . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.5 Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.6 Interest; Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.7 Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.8 Conversion and Continuation . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 2.9 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 2.10 Change in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 2.11 Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 2.12 Pro Rata Treatment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 2.13 Sharing of Setoffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 3 FUNDING AND YIELD PROTECTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.1 Taxes, Duties, Fees and Charges . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 3.2 Change in Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 4 EXPENSES; INDEMNIFICATION; FEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.1 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 4.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 5 GUARANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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Section 5.1 Parent Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 5.2 Borrowing Affiliate Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6 SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.1 Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 7 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 7.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.2 Power; Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.3 Governmental Approvals; Licenses . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 7.4 Execution, Enforceability, Violation of Law and Agreements . . . . . . . . . . . 51
Section 7.5 Financial Statements; Business Plan . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.7 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.8 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 7.9 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.10 Burdensome Documents; Agreements with Affiliates; Other
Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.11 Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 7.12 Judgments, Actions, Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.13 No Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.14 Strikes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.16 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.17 Accuracy of Information. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 7.18 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . 58
Section 7.19 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.20 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 7.21 Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 8 AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 8.1 Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.2 Annual Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 8.3 Quarterly Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . 61
Section 8.4 Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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Section 8.5 Access to Books; Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 8.6 Governmental Approvals; Licenses . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.7 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Section 8.8 Continuance of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 8.9 Maintenance and Repairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 8.10 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 8.11 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 8.12 Security; Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 8.13 Construction of the Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Section 8.14 Maintenance of Licenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.15 Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 8.16 Failure to Perform of Third Party Guarantor. . . . . . . . . . . . . . . . . . . 74
Section 8.17 Update of Security Documents . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 9 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.1 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.2 Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.3 Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.4 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.5 Mergers; Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.6 Distributions; Redemptions . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 9.7 Stock Issuance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 9.8 Amendment of Documents and Organization . . . . . . . . . . . . . . . . . . . . . 77
Section 9.9 Investments; Loans; Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 9.10 [Reserved] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.11 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Section 9.12 Changes in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.13 Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.14 ERISA Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.15 Sale and Leaseback Transactions . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 9.16 New Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 9.18 Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
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SECTION 10 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.1 Conditions to Initial Advance . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 10.2 Conditions to All Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 11 EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 11.3 Cumulative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 11.4 Waiver of Demand; Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 11.5 Waiver of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
SECTION 12 The Administrative Agent and the Collateral Agent . . . . . . . . . . . . . . . . . . . . . 94
SECTION 13 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.1 Waiver of Sovereign Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.2 Venue for Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 13.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 13.4 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 13.5 Binding Effect; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 13.6 Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 13.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 13.8 Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 13.9 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 13.10 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 13.11 Term of Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
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EXHIBITS
Exhibit A Form of Borrowing Affiliate Note
Exhibit B Form of Request for Financing
Exhibit C Form of Financing Note
Exhibit D-1 Form of Third Party Guaranty
Exhibit D-2 Form of Affiliated Parent Guaranty
Exhibit E Form of Borrowing Affiliate Guaranty
Exhibit F Form of Company Pledge Agreement
Exhibit G Form of Third Party Pledge Agreement
Exhibit H Form of Affiliated Parent Pledge Agreement
Exhibit I Form of Borrowing Affiliate Pledge Agreement
Exhibit J Invested Capital Schedule
Exhibit K-1 Form of Opinion of United States Counsel
Exhibit K-2 Form of Opinion of Foreign Counsel
Exhibit L Initial Approved Business Plans
Exhibit M Form of Company Security Deposit Agreement
Exhibit N Form of Assignment and Acceptance
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SCHEDULES
Schedule 1.1(a) iDEN Equipment and Service Agreements
Schedule 1.1(b) Existing Indebtedness
Schedule 1.1(c) Political Risk Insurance Coverages
Schedule 1.1(d) Additional Subordinated Debt Terms
Schedule 1.1(e) Wholly-Owned Subsidiaries
Schedule 1.1(f) Intercompany Loans
Schedule 1.1(g) Intercompany Loan Agreements
Schedule 2.1(a) Lenders; Initial Commitments
Schedule 5.1 Third Party Guarantors
Schedule 7.1(a) Credit Party Structure; Ownership; Subsidiaries
Schedule 7.1(b) Qualification Jurisdictions
Schedule 7.3(a) Governmental Approvals
Schedule 7.3(b) Licenses
Schedule 7.4 Ownership and Pledge Restrictions; Violation of Law
Schedule 7.5 Recent Events; Contingent Liabilities; Taxes
Schedule 7.7 Existing Liens
Schedule 7.9 Intellectual Property
Schedule 7.10 Management Agreements; Affiliate Transactions
Schedule 7.12 Litigation
Schedule 8.7(b) Political Risk Insurance
Schedule 8.11 Principal Place of Business
Schedule 9.6 Existing Put Agreements
Schedule 11.1(w) Change of Control ▇▇▇▇▇▇▇▇▇▇
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MASTER EQUIPMENT FINANCING AGREEMENT, dated as of February
4, 1999 (as amended, modified or supplemented in accordance with the terms
hereof, this "Agreement"), by and between NEXTEL INTERNATIONAL, INC., a
corporation organized under the laws of the State of Washington, U.S.A., with
its principal office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. (the "Company"), the LENDERS (hereinafter defined) and MOTOROLA
CREDIT CORPORATION, a corporation duly organized under the laws of the State of
Delaware, U.S.A., with its principal office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, U.S.A. as administrative agent (in such
capacity, the "Administrative Agent") and as collateral agent (in such
capacity, the "Collateral Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Company has requested that the Lenders provide Advances
(as hereinafter defined) in the principal amount not exceeding $225,000,000 (as
the same may be reduced pursuant to Section 8.16, the "Maximum Commitment")
solely to (i) finance the Company's purchase of iDEN Equipment and Services
(hereinafter defined) pursuant to the iDEN Equipment and Service Agreements,
(ii) reimburse the Company for payments made by the Company and certain of its
affiliates in respect of certain purchases of iDEN Equipment and Services and
(iii) refinance certain existing credit arrangements; and
WHEREAS, the Lenders are willing to make Advances to the Company upon
the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and in order to
induce the Lenders to make the Advances and to induce the Lenders, the
Administrative Agent and the Collateral Agent to enter into the agreements
referred to herein, the parties agree as follows:
SECTION 1 DEFINITIONS
SECTION 1.1 DEFINED TERMS.
In addition to the terms defined above, when used in this Agreement,
the following terms shall have the following meanings:
"1997 Infocom Facility" means that certain Credit Agreement dated June
18, 1997, as amended, by and between Infocom and Motorola, Inc.
"Acceptable Guarantor" means a guarantor whose creditworthiness is
satisfactory to the Lenders in the Lenders' sole determination.
"additional amount" has the meaning ascribed to such term in
subsection 3.1(a).
"Additional System Documents" means, with respect to each System, all
contracts and agreements related to the construction, maintenance, repair or
operation of such System or the related Telecommunications Business entered
into by the Company or the Related Borrowing
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Affiliate subsequent to the Closing Date (a) in replacement of an existing
System Document or (b) which, if terminated, could reasonably be expected to
have a Material Adverse Effect or (c) having, together with related or
ancillary documents, an aggregate net present value or cost in excess of
$5,000,000.
"Adjusted EBITDA" means, as to the Borrowing Affiliates and for any
period, the sum of the products for each Borrowing Affiliate of (i) EBITDA for
such Borrowing Affiliate for such period times (ii) the Company's Ownership
Percentage of such Borrowing Affiliate.
"Adjusted Indebtedness" means, at any time, the Consolidated
Indebtedness of the Company at such time minus the sum of the Indebtedness at
such time of Nextel Brazil and Nextel Argentina.
"Adjusted Paid-in Capital" means, at any time, (i) the paid-in capital
of the Company reflected on the most recent financial statements delivered
pursuant to Section 8.2 or 8.3 (whichever is later) plus (ii) any increases in
paid-in capital since the end of the reporting period relating to such
financial statements minus (iii) any decreases in paid-in capital since the end
of the reporting period relating to such financial statements minus (iv) the
Utilized EBITDA Adjustment.
"Adjusted Recurring Revenues" means the sum of the products for each
Borrowing Affiliate of (i) the Recurring Revenues of such Borrowing Affiliate
times (ii) the Company's Ownership Percentage of such Borrowing Affiliate.
"Adjusted Shareholders' Equity" means, at any time, the difference of
(i) (A) if the financial statements most recently delivered pursuant to Section
8.3 relate to a quarterly period occurring after the financial statements most
recently delivered pursuant to Section 8.2, the lesser of (I) the shareholders'
equity of the Company as reported in the most recent balance sheet delivered
pursuant to Section 8.3 and (II) the sum of (1) the shareholders' equity of the
Company as reported in the most recent balance sheet delivered pursuant to
Section 8.2 plus (2) 90% of the increase, if any, in the shareholders' equity
of the Company reflected in the most recent balance sheet delivered pursuant to
Section 8.3 from the shareholders' equity of the Company reflected on the
balance sheet delivered pursuant to Section 8.2, otherwise (B) the
shareholders' equity of the Company as reported in the most recent balance
sheet delivered pursuant to Section 8.2 minus (ii) the principal amount of
Indebtedness incurred prior to such time pursuant to clause (n) of the
definition of "Permitted Indebtedness" (whether or nor then outstanding).
"Adjusted Subscribers" means the sum of the products for each
Borrowing Affiliate of (i) the Subscriber Units for each Borrowing Affiliate
times (ii) the Company's Ownership Percentage of such Borrowing Affiliate.
"Administrative Agent" has the meaning ascribed to such term in the
Preamble.
"Advance" has the meaning ascribed to such term in subsection 2.1(a)
hereof.
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"Affected Party" has the meaning ascribed to such term in subsection
3.2(a).
"Affiliate" means with respect to any Person, any other Person (a)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such first Person, (b) which
beneficially owns or holds 10% or more of any class of the Voting Stock of such
first Person, or (c) whereby 10% or more of the Voting Stock (or in the case of
a Person which is not a corporation, 10% or more of the equity interest) of
such other Person is beneficially owned or held by such first Person or by a
Subsidiary of such first Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Affiliated Credit Parties" collectively refers to the Company, the
Borrowing Affiliates, the Affiliated Parent Guarantors and the Supplemental
Credit Parties and individually refers to the Company, each Borrowing
Affiliate, each Affiliated Parent Guarantor and each Supplemental Credit Party;
provided, that notwithstanding anything to the contrary contained herein, the
Supplemental Credit Parties shall be deemed to be Affiliated Credit Parties
only for the purposes of Sections 7.1, 7.2, 7.8(a), 7.12, 7.13, 7.17, 7.18,
8.1, 8.2, 8.3, 8.4(a), 8.4(e), 8.5, 8.7(a), 8.8, 8.10(a), 8.10(c) and 9.18,
Article 11 and Article 13 hereof.
"Affiliated Parent Guarantor" means (a) each Wholly-Owned Subsidiary
of the Company having a direct or indirect equity interest (including, without
limitation, by ownership or Control of securities which are convertible or
exercisable into direct or indirect equity interests) in a Borrowing Affiliate
and (b) any Acceptable Guarantor executing and delivering an Affiliated Parent
Guaranty.
"Affiliated Parent Guaranty" has the meaning ascribed to such term in
subsection 5.1(b).
"Affiliated Parent Pledge Agreement" has the meaning ascribed to such
term in subsection 6.1(b)(ii).
"Aggregate Borrowing Affiliate Excess Cash Flow" means, for any
period, the sum of each Borrowing Affiliate's Excess Cash Flow for such period.
"Agents" has the meaning ascribed to such term in Section 12 hereof.
"Agreement" means this Master Equipment Financing Agreement, dated as
of February 4, 1999, by and between the Company, the Collateral Agent, the
Administrative Agent and the Lenders, as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof.
"Applicable Margin" means (a) with respect to any LIBOR Advance, 5.00%
per annum, and (b) with respect to any Prime Advance, 2.50% per annum.
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"Approved Business Plan" means each of the ten year business plans of
(a) the Company, taken as a whole and (b) each of the Borrowing Affiliates
individually, for establishing and operating (together with the Related
Borrowing Affiliate) the Systems in the Relevant Countries. The initial
Approved Business Plans are attached hereto as Exhibit L (the "Initial Plans").
"Arm's-Length Affiliate" has the meaning ascribed to such term in
Section 9.11 hereof.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit N or such other form as shall be approved by the
Administrative Agent.
"Attributable Borrowing Sublimit" means, with respect to each
Borrowing Affiliate, $125,000,000. The Attributable Borrowing Sublimit for a
Borrowing Affiliate shall be reduced as provided in Section 8.16.
"Attributable Borrowings" means, with respect to each Borrowing
Affiliate, all Invoice Advances (certified by the Company in the related
Request for Financing and as evidenced by the related Invoice), all Refinancing
Advances obtained by the Company in respect of such Borrowing Affiliate and all
Rollover Loans.
"Authorized Officer" means (a) with respect to any Person that is a
corporation, the President, Vice President or Chief Financial Officer of such
Person, (b) with respect to any Person that is a partnership, the President,
Vice President or Chief Financial Officer of a general partner of such Person,
in each case whose names appear on a certificate of incumbency of such Person
delivered concurrently with the execution of this Agreement, or (c) with
respect to Person that is a limited liability company, the Person (or
Authorized Officer thereof, if not a natural Person) that is the managing
member thereof.
"Available Commitment" means an amount equal to (a) the Maximum
Commitment minus (b) the sum of (i) the aggregate principal amount of all
Advances made to and including the date of determination, including, without
limitation, Advances that have been repaid or prepaid plus (ii) to the extent
not being repaid as of the date of determination, the outstanding principal
balance as of the date of determination of each of the Infocom Bridge Facility
and the 1997 Infocom Facility.
"Availability Period" means the period beginning with the Closing Date
and ending on the Commitment Termination Date.
"Borrowing" means a group of Advances of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
"Borrowing Affiliate" means each of Infocom, J-Com, Nextel Mexico,
Nextel Peru and each other Affiliate of the Company which owns or operates an
IDEN System and which has been approved in writing by the Required Lenders.
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"Borrowing Affiliate Guaranty" has the meaning ascribed to such term
in Section 5.2 hereof.
"Borrowing Affiliate Note" means, with respect to each Borrowing
Affiliate, a promissory note in the form attached hereto as Exhibit A, executed
by such Borrowing Affiliate in a face amount equal to such Borrowing
Affiliate's Attributable Borrowing Sublimit and made payable to the Company and
concurrently pledged by the Company as Collateral to secure the Obligations.
"Borrowing Affiliate Pledge Agreement" has the meaning ascribed to
such term in subsection 6.1(c).
"Business Day" means (a) any day other than Saturday, Sunday or any
other day on which commercial banks in Chicago are authorized or required under
the laws of the State of Illinois, or pursuant to other government action, to
close, and (b) with respect to all notices and determinations in connection
with any payment of principal and interest on LIBOR Advances, any day which
satisfies the conditions set forth in clause (a) above and which is also a day
for trading by and between banks for U.S. dollar deposits in the London
interbank market.
"Capital Lease Obligations" means the obligations of a Person and its
Subsidiaries (determined on a consolidated basis (without duplication) in
accordance with GAAP) to pay rent or other amounts under any leases for real or
personal property which obligations are required to be classified and accounted
for as capital leases in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether now outstanding or
issued after the Closing Date, including, without limitation, all common stock
and preferred stock.
"Change of Control" means such time as (i) (a) prior to the occurrence
of a Public Market, a "person" or "group" (within the meaning of Section 13(d)
or 14(d)(2) of the Exchange Act) becomes the ultimate "beneficial owner" (as
defined in Rule 13d-3 of the Exchange Act) of Voting Stock representing a
greater percentage of the total voting power of the Voting Stock of the
Company, on a fully diluted basis, than is held by the Existing Stockholders
and their Affiliates on such date and (b) after the occurrence of a Public
Market, a "person" or "group" (within the meaning of Section 13(d) and 14(d)(2)
of the Exchange Act) becomes the ultimate "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 35% of the total voting power
of the Voting Stock of the Company on a fully diluted basis and such ownership
is greater than the amount of voting power of the Voting Stock, on a fully
diluted basis, held by the Existing Stockholders and their Affiliates on such
date; or (ii) individuals who on the Closing Date constitute the Board of
Directors (together with any new directors whose election by the Board of
Directors or whose nomination for election by the Company's stockholders was
approved by a vote of at least two-thirds of the members of the Board of
Directors then in office who either were members of the Board of Directors on
the Closing Date or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the members of the
Board of Directors then in office.
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"Closing Date" means February 8, 1999.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time, and the regulations promulgated thereunder.
"Collateral" means all property (including, without limitation, the
Borrowing Affiliate Notes and any pledged stock) which is subject to the
security interests or Lien granted by any of the Security Documents.
"Collateral Agent" has the meaning ascribed to such term in the
Preamble.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Advances hereunder as set forth on Schedule 2.1(a), or in
the Assignment and Acceptance pursuant to which such Lender assumed its
Commitment, as applicable, as the same may be (a) reduced from time to time
pursuant to Section 2.5(b)(ii) or Section 8.16 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to
Section 13.5.
"Commitment Termination Date" means (a) the earlier of December 31,
2000 and (b) the date on which the obligations of the Lenders to make Advances
hereunder terminate in accordance with the terms of this Agreement.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Agreement, including, without limitation, all
series and classes of such common stock.
"Company" has the meaning ascribed to such term in the Preamble.
"Company Pledge Agreement" has the meaning ascribed to such term in
subsection 6.1(a)(i)(A) hereof.
"Company Security Deposit Agreement" has the meaning ascribed to such
term in subsection 6.1(a)(i)(A) hereof.
"Consolidated Fixed Charges" means, as to any Person and for any
period, without duplication, the sum of (a) the total cash interest expense for
such Person and its Subsidiaries on a consolidated basis for such period, (b)
the scheduled principal amount of all amortization payments on all Indebtedness
for borrowed money of such Person and its Subsidiaries on a consolidated basis
for such period, and (c) all payments made in respect of Capital Lease
Obligations by such Person and its Subsidiaries on a consolidated basis for
such period.
"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries with those of the Company, if and to the extent that
the accounts of each such
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Restricted Subsidiary would normally be consolidated with those of the Company
in accordance with GAAP; provided, however, that "consolidation" shall not
include consolidation of the accounts of any Unrestricted Subsidiary, but the
interest of the Company or any Restricted Subsidiary in any Unrestricted
Subsidiary shall be accounted for as an investment. The term "consolidated"
has a correlative meaning.
"Control" means at any time, the possession (on a fully diluted
basis), directly or indirectly, of the power to direct or cause the direction
of the management and policies of a Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which as of the relevant date, together with the Company, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001(b)(1) of ERISA.
"could reasonably be expected" means as would be determined by a
prudent Person, familiar with the general substance at issue, in like
circumstances with the Person making the decision.
"Credit Documents" means, individually and collectively, this
Agreement, each Financing Note (if any), the Security Documents, the Borrowing
Affiliate Guaranties, the Parent Guaranties, the Borrowing Affiliate Notes and
each other document entered into pursuant thereto.
"Credit Parties" collectively refers to the Affiliated Credit Parties
and the Third Party Guarantors and individually refers to each Affiliated
Credit Party and each Third Party Guarantor.
"Default" means any event, occurrence, factual or legal condition
which, if continued uncured or unchanged would, with the passage of time or the
giving of notice or both, become or constitute an Event of Default.
"Distributions" has the meaning ascribed to such term in subsection
9.6(a) hereof.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Drawdown Date" has the meaning ascribed to such term in subsection
2.2(a) hereof.
"EBITDA" means, as to any Person and for any period, net income of
such Person and its Subsidiaries as measured in accordance with GAAP on a
consolidated basis for such period adjusted as follows: (i) plus interest
expense for such period to the extent such amount was deducted in calculating
net income; (ii) minus interest income for such period to the extent such
amount was added in calculating net income; (iii) plus income taxes for such
period to the extent such amount was deducted in calculating net income; (iv)
minus income tax benefits for such period to the extent such amount was added
in calculating net income; (v) plus amortization and depreciation expenses for
such period to the extent such amount was deducted in calculating net income;
(vi) plus all other non-cash items for such period to the extent reducing net
income; (vii)
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minus all non-cash items for such period to the extent increasing net income;
(viii) minus extraordinary gains and gains on sales of assets to the extent
such amount was added in calculating net income; and (ix) plus extraordinary
and non-recurring losses and charges to the extent such amount was deducted in
calculating net income.
"Environmental Laws" means any and all governmental statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, guidelines, interpretations,
policies, agreements or other restrictions or requirements (herein, "laws and
regulations") relating to Materials of Environmental Concern or protection of
human or animal health or the environment (including, without limitation,
ambient air, indoor air, surface water, ground water, land surface or
sub-surface strata), including, without limitation, laws and regulations
relating to emissions, discharges, health or safety, noise abatement, releases
or threatened releases of Materials of Environmental Concern or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, recycling, reporting or handling of Materials of
Environmental Concern, and all such laws and regulations that may be enacted in
the future.
"Environmental Matters" has the meaning ascribed to such term in
subsection 7.8(d) hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time, and the regulations promulgated
thereunder.
"Event of Abandonment" means, with respect to a System or a
Telecommunications Business, the abandonment of such System or such
Telecommunications Business or cessation of the operation of such System or
such Telecommunications Business which reasonably indicates to the Required
Lenders that the Company or the Related Borrowing Affiliate intends to abandon
such System or such Telecommunications Business.
"Event of Default" means any of the events specified in Section 11.1
hereof.
"Excess Cash Flow" means, for any Person for any period, the amount
(if any) by which (i) EBITDA of such Person for such period exceeds (ii) the
sum of (1) consolidated debt service consisting of scheduled or mandatory
principal payments and related cash interest expense payments of such Person
for such period plus (2) the aggregate amount of actual capital expenditures
made by such Person on a consolidated basis during such period plus (3) cash
income taxes paid by such Person on a consolidated basis for such period, plus
(4) $10,000,000.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
of the United States of America.
"Existing Intercompany Loans" means all of the intercompany loans to
Infocom and J-Com as of the Closing Date, including those set forth on Schedule
1.1(f), which loans may continue to be evidenced by notes executed from time to
time pursuant to the Intercompany Loan Agreements; provided, that in the case
of notes executed pursuant to the Infocom Intercompany
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Loan Agreement in an aggregate face amount not exceeding $50,000,000 and
irrevocably designated in writing by the Company to the Administrative Agent,
such notes shall be deemed to be, and subject to the provisions of the Credit
Documents relating to, Borrowing Affiliate Notes.
"Existing Stockholders" means ▇▇▇▇▇ ▇. ▇▇▇▇▇ and Nextel.
"Fee Letter" means the Fee Letter dated November 11, 1998, between the
Company and the Initial Lender.
"Financing Note" has the meaning ascribed to such term in subsection
2.3(d) hereof.
"Fixed Charge Coverage Ratio" means, as at any date, the ratio of (i)
EBITDA to (ii) Consolidated Fixed Charges.
"Force Majeure" means any fire, explosion, accident, strike, lockout
or other labor dispute, drought, storm, hail, earthquake, embargo, act of God
or of the public enemy or other casualty (whether or not covered by insurance)
or other event of force majeure which could reasonably be expected to have a
Material Adverse Effect.
"GAAP" means generally accepted accounting principles used, from time
to time, in the United States of America.
"Governmental Approval" means any authorization, consent, approval,
license (other than the Licenses), franchise, concession, lease, ruling,
permit, certification, exemption, filing or registration by or with any
Governmental Authority or legal or administrative body material and necessary
for the design, location, construction, completion, ownership, operation,
repair or maintenance of a System or a Telecommunications Business, authority
to conduct business, the execution and delivery of the Credit Documents, the
making of Advances or the creation and perfection of the Liens contemplated by
the Security Documents.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative authority or functions of
or pertaining to government.
"Governmental Rule" means any statute, law, regulation, ordinance,
rule, judgment, order, writ, decree, directive, guideline, policy or
requirement, or any similar form of decision of or determination by, or any
interpretation or administration of any of the foregoing by, any Governmental
Authority (including, without limitation, any Environmental Law), whether now
or hereafter in effect.
"Guarantors" collectively refers to the Parent Guarantors and the
Borrowing Affiliates (in respect of their Borrowing Affiliate Guaranty
obligations) and individually refers to each Parent Guarantor and each
Borrowing Affiliate.
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17
"Hedge Agreement" means an interest rate swap, cap, floor or collar
agreement, any spot or forward contracts, interest rate future or option
contracts, currency swap agreements, commodities future contracts, currency
future or option contracts or other similar agreement or arrangement, as the
same shall be modified and supplemented and in effect from time to time.
"Hedge Termination Value" means, in respect of any one or more Hedge
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedge Agreements, (a) for any date on or
after the date such Hedge Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a) the amount(s)
determined as the ▇▇▇▇-to-market value(s) for such Hedge Agreements, as
determined by the Company based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Hedge Agreements
(which may include any Lender).
"IDEN" means the Integrated Digital Enhanced Network created by the
Motorola Entities.
"IDEN Equipment and Service Agreements" means each Integrated Digital
Enhanced Network Equipment Purchase Agreement and each Integrated Digital
Enhanced Network Installation and Optimization Agreement listed on Schedule
1.1(a) hereto, together with any amendments thereto or any other similar
agreements entered into from time to time between the Company, a Borrowing
Affiliate, Nextel Brazil or Nextel Argentina and the Vendor for the purchases
of IDEN Equipment and Services for use in a Relevant Country.
"IDEN Equipment and Services" means IDEN infrastructure equipment and
related services supplied by the Motorola Entities (including ancillary
products and services such as switches which have been ordered from and
provided by the Motorola Entities but excluding subscriber equipment and
accessories) and related transportation and shipping costs, but excluding
import taxes, duties and other like costs.
"IDEN System" means, with respect to each System, the wireless
communications system using IDEN technology which is being operated in
connection with such System.
"Indebtedness" means, with respect to any Person, without duplication
and on a consolidated basis (a) all indebtedness of such Person for borrowed
money (whether by loan or the issuance and sale of debt securities), (b) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services (excluding current trade payables incurred in the ordinary
course of business of such Person which are due no later than 90 days after the
date of invoice), (c) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (d) the obligations of such
Person under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of
others of the types referred to in clauses (a) and (c) above, (e) all
obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for
the account of such Person, (including, without limitation, reimbursement
obligations with respect thereto but excluding (i) letters of credit (including
trade letters of credit) securing obligations (other than obligations described
in (a), (b), (c) and (d) above and (f) and
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18
(g) below), entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if drawn upon, to the
extent such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement and (ii) letters
of credit secured by cash in a manner not in breach of this Agreement which is
deposited in a segregated account held by a non-affiliate of such Person), (f)
all indebtedness of others secured by a Lien on any asset of such Person
whether or not such indebtedness is assumed by such Person, provided, that, in
the case where such Person has no obligation with respect to the Indebtedness
of such other Person other than such Lien, the amount of Indebtedness shall be
the lesser of (i) the fair market value of such asset at such date of
determination and (ii) the amount of such Indebtedness, (g) all Capital Lease
Obligations, and (h) to the extent not otherwise included in this definition,
the net payment obligations in respect of Hedge Agreements (including, without
limitation, Hedge Termination Values to the extent consisting of liabilities of
such Person).
"Indemnitees" has the meaning ascribed to such term in subsection
4.2(a) hereof.
"Infocom" means Infocom Communications Network, Inc., a company
incorporated in the Philippines.
"Infocom Bridge Facility" means that certain Financing Agreement dated
August 27, 1998 by and between the Company and Motorola.
"Infocom Intercompany Loan Agreement" means that certain Credit
Agreement dated as of February 2, 1998 between the Company and Infocom and the
promissory notes executed in connection therewith evidencing the shareholder
loans advanced to Infocom by the Company thereunder.
"Intercompany Loan Agreements" means the loan agreements listed on
Schedule 1.1(g), which agreements have been executed on or prior to the Closing
Date in connection with the Existing Intercompany Loans, and the promissory
notes executed in connection therewith, each as amended, modified or otherwise
supplemented from time to time in accordance with the terms hereof.
"Information" has the meaning ascribed to such term in Section 13.10
hereof.
"Initial Funding Date" means the date upon which each of the
conditions precedent set forth in Section 10.1 and 10.2 have been satisfied (as
required thereunder) and the initial Advance is made.
"Initial Lender" means Motorola Credit Corporation, in its capacity as
initial lender hereunder.
"Initial Plans" has the meaning ascribed to such term in the
definition of "Approved Business Plan".
"Intellectual Property" has the meaning ascribed to such term in
Section 7.9 hereof.
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19
"Interest Payment Date" means, with respect to any Advance, the last
day of the Interest Period applicable to the Advance, and, in addition, the
date of any prepayment of such Advance or conversion of such Advance to an
Advance of a different Type.
"Interest Period" means (a) as to any LIBOR Advance, the period
commencing on the date of such Advance and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Company may elect, and (b) as to any Prime Advance, the period commencing on
the date of such Advance and ending on the earliest of (i) the next succeeding
June 30 or December 31, (ii) the Maturity Date, and (iii) the date such Advance
is converted to an Advance of a different Type in accordance with Section 2.8
or repaid or prepaid in accordance with Section 2.5; provided, however, that if
any Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Investment" means, with respect to any Person, any loan or advance to
such Person, any purchase or other acquisition of any capital stock,
obligations or other securities of such Person, any capital contribution to
such Person or any other investment in or acquisition of any interest in such
Person.
"Invoice" has the meaning ascribed to such term in subsection 2.2(a)
hereof.
"Invoice Advance" means an Advance (or portion thereof) made to, or on
behalf of, the Company and certified by the Company in the related Request for
Financing for use to finance the purchase price of IDEN Equipment and Services
purchased by or for the direct benefit of a Borrowing Affiliate or a Subsidiary
of a Borrowing Affiliate pursuant to invoices which are issued during the
Availability Period, which are payable, and which have not previously been
submitted for an Advance or for financing under any financing arrangement with
a Motorola Entity.
"IRS" means the Internal Revenue Service.
"J-Com" means J-Com Co., Ltd., a corporation organized under the laws
of Japan.
"knowledge" means as it applies to the Company, an Affiliated Parent
Guarantor or a Borrowing Affiliate, the actual knowledge of a Vice President
(or equivalent officer, as applicable) or more senior officer of the Company,
such Affiliated Parent Guarantor or such Borrowing Affiliate or any other
officer of the Company, such Affiliated Parent Guarantor or such Borrowing
Affiliate having responsibility for the transactions contemplated by the
Operative Documents.
"Leases" mean the various lease agreements executed by the Company or
any of the other Affiliated Credit Parties as lessee in connection with the
lease of such interests of real and
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personal property as shall be necessary to install, operate and maintain a
System or a Telecommunications Business.
"Lending Office" means, with respect to a Lender or the Administrative
Agent, any office, branch, subsidiary or affiliate of such Lender or the
Administrative Agent listed on the administrative information sheets provided
to the Administrative Agent by such Lender in connection herewith or otherwise
selected by such Lender or the Administrative Agent pursuant to subsection
3.1(f).
"Lender Party" means, as the context may require, the Administrative
Agent, the Collateral Agent, any Lender and each of their respective
successors, transferees and assigns.
"Lenders" means (a) the financial institutions listed on Schedule
2.1(a) (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"LIBOR Advance" means each Advance the interest on which is determined
on the basis of rates referred to in the definition of LIBOR Base Rate.
"LIBOR Base Rate" means, during an Interest Period for LIBOR Advances,
the rate per annum equal to the rate determined by reference to the LIBOR Page
on the ▇▇▇▇▇▇ Monitor Money Rates Services, or any successor thereto as of
11:00 a.m., London, England time two Business Days prior to the beginning of
such Interest Period, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the LIBOR Advances to be made by the Lenders for such Interest Period. If
quotes for the foregoing rates are not available on the ▇▇▇▇▇▇ Monitor Money
Rates Services or any successor thereto, the "LIBOR Base Rate" shall mean,
during an Interest Period for LIBOR Advances, the rate of interest per annum
determined by the Administrative Agent to be the weighted average (rounded
upwards, if necessary, to the nearest whole multiple of 1/100 of 1% per annum,
if such weighted average is not such a multiple) of the rates per annum at
which deposits in Dollars are offered to major money center banks in the London
interbank market at 11:00 a.m. London time two Business Days prior to the first
day of such Interest Period, in the approximate amount equal to the principal
amount of the LIBOR Advances to be made by the Lenders for such Interest Period
and for a period equal to such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of LIBOR Advances.
"LIBOR Rate" means, with respect to a LIBOR Advance, for any Interest
Period therefor, the LIBOR Base Rate for such Advance for such Interest Period
divided by the difference of 1 minus the Reserve Requirement for such Advance
for such Interest Period.
"Licenses" means collectively all those licenses and concessions that
both (i) permit the Company, the Borrowing Affiliates, Nextel Argentina and
Nextel Brazil to conduct a wide range of mobile radio services, including but
not limited to, radio dispatch service, paging, telephone
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21
interconnect services, and other mobile communication, and personal
communication services; and (ii) are materially necessary for the ownership,
operation or maintenance of the Systems in the Major Market Areas as is
contemplated by the Approved Business Plans and the Telecommunications
Businesses currently engaged in (including for this purpose the
telecommunications businesses and business plans for Nextel Argentina and
Nextel Brazil, respectively), together with any amendments or changes to each
such license or concession.
"Lien" means, with respect to any Person, any security interest, lien,
pledge, mortgage, deed, charge or encumbrance (including, without limitation,
any agreement to give any of the foregoing), conditional sale agreement, title
retention agreement, finance lease or trust receipt or a consignment or
bailment for security purposes, or other security arrangement or any other
arrangement on or with respect to any asset or revenue of such Person.
"Major Market Area" means, with respect to the System and
Telecommunications Business in each of the Relevant Countries, the following
cities: (i) in Japan: Kanto, Kansai and Tokai, (ii) in Mexico: Mexico City,
Monterrey, Guadalajara, and Tijuana, (iii) in Peru: greater Lima area, (iv) in
the Philippines: greater Manila area and (v) with respect to any other Relevant
Country, such cities or regions as specified, at the time such country becomes
a Relevant Country, in writing by the Required Lenders.
"Majority-Owned Foreign Affiliate" means each and any Affiliate,
organized under the laws of a jurisdiction other the United States of America
(including the states, territories and instrumentalities thereof), in which the
Company directly or indirectly through one or more intermediaries beneficially
owns more than 50.0% of the voting stock or equity interest, as the case may
be.
"Management Agreements" means collectively the Management Agreements
referred to on Schedule 7.10 hereto.
"Material Adverse Effect" means, generally with respect to any Person,
event or occurrence, a material adverse effect on (i) such Person's business,
financial condition, assets, properties or operations (including, without
limitation, the construction, completion and operation of the relevant System
or the ability to achieve its Approved Business Plan with respect to any Major
Market Area in the case of the Company and the Borrowing Affiliates), (ii) such
Person's ability to perform its obligations under the Operative Documents to
which such Person is a party, (iii) the security interests granted by such
Person under the Security Documents or the value of the Collateral thereunder,
(iv) any System or Telecommunications Business or (v) such Person's Licenses or
Governmental Approvals.
(a) With respect to any of the Company and any of the Borrowing
Affiliates, or the Borrowing Affiliates taken as a whole, Material Adverse
Effect means a material adverse effect set forth in clauses (i) through (v)
above (in the latter case, with the Borrowing Affiliates as a whole treated as
a Person).
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(b) With respect to any Parent Guarantor or Supplemental Credit
Party, Material Adverse Effect means a material adverse effect set forth in
clauses (i), (ii) and (iii) above, unless, in the case of a Parent Guarantor,
with respect to clause (ii) above in respect of a failure to perform under its
Parent Guaranty (the "Relevant Guarantor"), (x) within thirty (30) days after
notice of such Material Adverse Effect, an Acceptable Guarantor (which may be
another Parent Guarantor if so determined by the Lenders) shall have assumed
the liability of such Relevant Guarantor under its Parent Guaranty, and (y)
there shall be no adverse effect on the stock or quotas or intercompany
Indebtedness pledged by such Relevant Guarantor.
"Materials of Environmental Concern" means chemicals, pollutants,
polychlorinated biphenyls, contaminants, wastes, toxic or hazardous substances,
asbestos, petroleum and petroleum products.
"Maturity Date" means December 31, 2004, provided, if such date is not
a Business Day, then the Maturity Date shall be the immediately preceding
Business Day.
"Maximum Commitment" has the meaning ascribed to such term in the
first recital hereof.
"▇▇▇▇▇" means ▇▇▇▇▇ International (Brazil), Ltd., a company organized
under the laws of the Commonwealth of Virginia.
"Motorola Entity" means Motorola, Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware, United States of
America, and each of its Affiliates (other than Nextel and its Subsidiaries)
and Subsidiaries and their successors and assigns.
"Nextel" means Nextel Communications, Inc., a Delaware corporation.
"Nextel Argentina" means Nextel Argentina S.R.L., an Argentine
sociedad de responsibilidad limitatda.
"Nextel Argentina Parent" means Nextel International (Argentina) Ltd.,
a Cayman Islands company.
"Nextel Argentina Facility" means that certain Credit Agreement, dated
as of February 27, 1998, as amended, modified or supplemented, among Nextel
Argentina, The Chase Manhattan Bank, as administrative agent, and the lenders
party thereto.
"Nextel Brazil" means Nextel S.A., a Brazilian sociedad anonima.
"Nextel Brazil Facility" means that certain Equipment Financing Credit
Agreement dated as of October 31, 1997, as amended, by and between ▇▇▇▇▇
International (Brazil), Ltd. and Motorola Credit Corporation.
"Nextel Mexico" means Communicaciones Nextel de Mexico S.A. de C.V., a
corporation organized under the laws of Mexico.
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23
"Nextel Peru" means Communicaciones Nextel del Peru, S.A., a
corporation organized under the laws of Peru.
"Non-U.S. Lender" shall have the meaning ascribed to such term in
subsection 3.1(e).
"Obligations" means collectively, all of the Indebtedness, liabilities
and obligations of the Company to the Lender Parties under the Credit
Documents, whether now existing or hereafter arising, whether or not currently
contemplated.
"Operative Documents" means, collectively, the Credit Documents and
the System Documents.
"Other Taxes" shall have the meaning ascribed to such term in
subsection 3.1(b).
"Ownership Percentage" means, with respect to a particular Person
(e.g., the Company or a Third Party Guarantor) and a particular Borrowing
Affiliate, such Person's direct and indirect equity ownership, on a fully
diluted basis, of such Borrowing Affiliate.
"Parent Guaranties" collectively refers to the Third Party Guaranties
and the Affiliated Parent Guaranties and individually refers to each Affiliated
Parent Guaranty and each Third Party Guaranty.
"Parent Guarantor Pledge Agreements" collectively refers to the
Affiliated Parent Pledge Agreements and the Third Party Pledge Agreements and
individually refers to each Affiliated Parent Pledge Agreement and each Third
Party Pledge Agreement.
"Parent Guarantors" collectively refers to the Affiliated Parent
Guarantors and the Third Party Guarantors and individually refers to each
Affiliated Parent Guarantor and each Third Party Guarantor.
"Payment Date" means each Semi Annual Date in each year commencing
with the June 30, 2001 Semi Annual Date and the last day of any Interest Period
for interest due on a LIBOR Advance.
"Payment Location" means an office, branch or other place of business
of the Company.
"PBGC" means the Pension Benefit Guaranty Corporation or its
successor.
"Permitted Indebtedness" means, collectively, (a) the Obligations, (b)
trade accounts payable which are due no later than 120 days after invoice (or,
in the case of trade accounts payable owed to a Motorola Entity, on payment and
other terms as agreed to from time to time between the relevant obligor(s) and
the Motorola Entity) and other similar Indebtedness of the Company, the
Borrowing Affiliates and their Subsidiaries incurred in the ordinary course of
business (including, without limitation, subscriber equipment and accessories
purchased in the
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ordinary course of business) and as permitted in this Agreement, (c)
obligations under long-term real property leases of the Company, the Borrowing
Affiliates and their Subsidiaries in respect of the cell sites, switch sites,
retail space and office space incurred in the ordinary course of business, (d)
short-term lease obligations of the Company, the Borrowing Affiliates and their
Subsidiaries in an amount per annum not exceeding $5,000,000 in the aggregate,
(e) Indebtedness of the Company and its Subsidiaries, the Borrowing Affiliates
and their Subsidiaries to be used for working capital purposes and not
exceeding $100,000,000 in the aggregate, having a weighted average life to
maturity longer than the Obligations for Advances of the Company under this
Agreement and which may be secured by the Collateral on a pari passu basis on
terms and conditions reasonably satisfactory to the Required Lenders, (f)
Indebtedness of the Company and its Subsidiaries, the Borrowing Affiliates and
their Subsidiaries not exceeding $100,000,000 in the aggregate, having a
weighted average life to maturity longer than the Obligations for Advances of
the Company under this Agreement and which shall be unsecured and otherwise be
on terms and conditions reasonably satisfactory to the Required Lenders, (g)
Indebtedness of the Company and its Subsidiaries, and the Borrowing Affiliates
and their Subsidiaries existing on the Closing Date as identified on Schedule
1.1(b) ("Existing Indebtedness"), (h) unsecured subordinated indebtedness of
the Company and its Subsidiaries, having no principal payments, cash interest
payments or fee payments permitted or scheduled prior to the repayment in full
of the Obligations and in amounts and on other terms (including, without
limitation, payment and remedies subordination terms) as described on Schedule
1.1(d), (i) swingline loans of the Company not exceeding $500,000 which shall
be pari passu with the Obligations and secured by the Collateral hereunder, (j)
any refinancing, extension, renewal or refunding of any Existing Indebtedness
(or other "Permitted Indebtedness" hereunder, which, when refinanced, extended,
renewed or refunded, is incurred pursuant to and in accordance with one or more
of the clauses of this definition) not involving an increase in the principal
amount thereof or a reduction in the remaining weighted average life to
maturity thereof (computed in accordance with standard financial practice), (k)
Indebtedness of the Company and its Subsidiaries, the Borrowing Affiliates and
their Subsidiaries owing to Motorola Credit Corporation; provided that, before
and after giving effect to such Indebtedness, the Company and its Restricted
Subsidiaries shall be in compliance with each of the financial covenants set
forth in Section 8.15, (l) Indebtedness (A) in respect of performance, surety
or appeal bonds provided in the ordinary course of business, (B) under Hedge
Agreements; provided that such Hedge Agreements (I) are designed solely to
protect the Company or its Restricted Subsidiaries against fluctuations in
foreign currency exchange rates or interest rates and (II) do not increase the
Indebtedness of the obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest rates or by reason
of fees, indemnities and compensation payable thereunder; and (C) arising from
agreements providing for indemnification, adjustment of purchase price or
similar obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any Restricted
Subsidiary pursuant to such agreements, in any case incurred in connection with
the disposition of any business, assets or Restricted Subsidiary (other than
Guarantees of Indebtedness incurred by any Person acquiring all or any portion
of such business, assets or Restricted Subsidiary for the purpose of financing
such acquisition), in a principal amount not to exceed the gross proceeds
actually received by the Company or any Restricted Subsidiary in connection
with such disposition; (m) guaranties of Indebtedness of the Company by any
Restricted Subsidiary, so long as any such guaranty is subordinated to the
prior
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indefeasible payment in full in cash of the Obligations; (n) Indebtedness,
incurred in an aggregate amount not to exceed the lesser of $200,000,000 and
the Adjusted Shareholders' Equity, having a weighted average life to maturity
longer than the Obligations for Advances of the Company under this Agreement
and which shall be unsecured and otherwise be on terms and conditions
reasonably satisfactory to the Required Lenders; and (o) guaranties of any of
the foregoing.
"Permitted Investments" means:
(a) debt obligations maturing within twelve months of the time of
acquisition thereof which from time to time are accorded a rating of AA- or
better by S&P (or an equivalent rating by another recognized credit rating
agency of similar standing if such division is not then in the business of
rating long term debt obligations);
(b) commercial paper with a maturity of 270 days or less which
from time to time is accorded a rating of A4 or better by S&P (or an equivalent
rating by another recognized credit rating agency of similar standing if such
division is not then in the business of rating commercial paper);
(c) certificates of deposit maturing within twelve months of the
time of acquisition thereof issued by commercial banks that are accorded a
rating by an internationally recognized rating service then in the business of
rating commercial banks which is in the first quartile of the rating categories
used by such service;
(d) obligations maturing within twelve months of the time of
acquisition thereof of any Governmental Authority which obligations from time
to time are accorded a rating of BBB or better by S&P (or an equivalent rating
by another recognized credit rating agency of similar standing if such division
is not then in the business of rating governmental obligations); and
(e) demand deposits, certificates of deposit, bankers acceptance
and time deposits (having a term of less than one year) of United States having
total assets in excess of $1,000,000,000.
"Permitted Liens" means, as of any particular time, (a) with respect
to Collateral located in the United States, Liens for taxes, assessments or
governmental charges not then delinquent or which the Company may, pursuant to
the provisions of Section 8.1 hereof, permit to remain unpaid, (b) Liens
created pursuant to the Security Documents, (c) with respect to Collateral
located in the United States, any mechanic's, worker's, repairer's,
materialmen's, supplier's, vendor's or like Liens securing obligations arising
in the ordinary course of business that (x) are not mature and not overdue, or
(y) are being contested in good faith and (1) as to which adequate reserves
have been established on the books of the Company in accordance with GAAP or
(2) that do not materially impair the value or marketability of the security
granted to the Collateral Agent, for the benefit of the Lender Parties,
pursuant to the Security Documents and could not result in an aggregate
liability in excess of $1,000,000, (d) with respect to Collateral located in
the United States, all utility, access and other similar easements,
rights-of-way and restrictions granted in the ordinary course of business, (e)
with respect to Collateral located in the United
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States, pledges or deposits by the Company under workers' compensation laws,
unemployment insurance laws, social security or pension obligations or similar
legislation, in respect of which adequate reserves shall have been established,
or good faith deposits not to exceed $1,000,000 in the aggregate in connection
with bids, tenders, contracts (other than for the payment of Indebtedness of
the Company) or leases to which the Company is permitted hereunder to be a
party, or deposits to secure public or statutory obligations of the Company, or
deposits of cash or bonds to secure surety or appeal bonds which the Company is
obligated to provide in accordance with activities permitted of it hereunder,
or deposits as security for contested taxes or import duties or for the payment
of rent, (f) Liens upon tangible personal property (which was acquired after
the date hereof, and the cost of which, individually or in the aggregate, does
not exceed $100,000) granted by the Company or any Borrowing Affiliate, each of
which Liens was created solely to secure Indebtedness representing, or incurred
to finance, refinance or refund, the cost of such property (provided that no
such Lien shall extend to cover any property of the Company other than the
property so acquired), (g) with respect to Collateral located in the United
States, inchoate rights reserved to or vested in any Governmental Authority as
of the date hereof to condemn, appropriate, control or regulate the System or
any portion thereof, (h) Liens securing Permitted Indebtedness of the types
described in clauses (e), (g) (to the extent of the collateral therefor as of
the Closing Date), (i), (j) (to the extent of the collateral securing the
Indebtedness being refinanced) and (k) of the definition thereof so long as the
subject Indebtedness is pari passu with, and not senior to, the Obligations,
(i) Liens in foreign jurisdictions comparable to the Liens permitted by clauses
(a), (c), (d), (e) and (g) of this definition, (j) Liens securing the Infocom
Bridge Facility, (k) leases or subleases of property of the Company and the
Restricted Subsidiaries granted to others in the ordinary course of business
that could not reasonably be expected to have a Material Adverse Effect, (l)
Liens encumbering property or assets under construction arising from progress
or partial payments by a customer of the Company or any Restricted Subsidiary
relating to such property subject to any Capitalized Lease permitted hereunder
or operating lease, (m) Liens arising from filing Uniform Commercial Code
financing statements (or substantially equivalent filings outside the United
States) regarding operating leases, (n) Liens on property of, or on shares of
capital stock or Indebtedness of, any Person existing at the time such Person
becomes, or becomes a part of, any Restricted Subsidiary; provided that such
Liens do not extend to or cover any property or assets of the Company or any
Restricted Subsidiary other than the property or assets acquired and were not
created in connection with or in contemplation of such Person becoming a
Restricted Subsidiary, (o) Liens in favor of the Company or any Restricted
Subsidiary subordinated to the Liens securing the Obligations and to the prior
payment of the Obligations, (p) Liens arising from the rendering of a final
judgment or order against the Company or any Restricted Subsidiary that does
not give rise to an Event of Default and which attach to assets which, in the
aggregate, have a fair market value of less than $5,000,000; (q) Liens securing
reimbursement obligations with respect to performance letters of credit that
encumber documents and the property which is the subject of such performance
letters of credit and the products and proceeds thereof; (r) Liens in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods; (s) Liens
encumbering customary initial deposits and margin deposits, and other Liens
that are either within the general parameters customary in the industry and
incurred in the ordinary course of business, in each case, securing
Indebtedness under Hedge Agreements; (t) Liens arising out of conditional sale,
title retention, consignment or similar arrangements for the sale of goods
entered
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into by the Company or any Restricted Subsidiary in the ordinary course of
business in accordance with the past practices of the Company and its
Subsidiaries prior to the Closing Date, provided, that the obligations secured
by the liens described in the foregoing clauses (l), (q), (r), (s) and (t)
shall not at any time exceed $5,000,000 in the aggregate, and (u) Liens on the
capital stock of Subsidiaries of the Company which are not Restricted
Subsidiaries. A contest referred to in this definition shall be permitted only
if the execution or enforcement of the Lien being contested shall have been
stayed or is stayed as a result thereof and such contest could not reasonably
be expected to (i) have a Material Adverse Effect, or (ii) create or materially
increase the risk of imposition of any material penalties or liabilities,
whether civil or criminal, upon any Lender Party.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, unincorporated association, trust or other
juridical entity, or any Governmental Authority.
"Plan" means at any time an employee pension benefit plan as defined
in Section 3(2) of ERISA that is covered by Title IV of ERISA or that is
subject to the minimum funding standards under Section 412 of the Code and is
either: (a) maintained by the Company or any member of the Controlled Group
for employees of the Company, or by the Company or any other member of the
Controlled Group for employees of any member of the Controlled Group, or (b)
maintained pursuant to a collective bargaining agreement or any other
arrangement under which more than one employer makes contributions and to which
the Company or any member of the Controlled Group is then making or accruing an
obligation to make contributions or has within the preceding five plan years
made or been obligated to make contributions.
"Pledge Agreements" collectively refers to the Company Pledge
Agreement, the Borrowing Affiliate Pledge Agreements, the Affiliated Parent
Pledge Agreements and the Third Party Pledge Agreements and individually refers
to the Company Pledge Agreement, each Borrowing Affiliate Pledge Agreement,
each Affiliated Parent Pledge Agreement and each Third Party Pledge Agreement.
"Political Risk Insurance" means insurance insuring against the
non-payment of the Obligations and arising out of the events or circumstances
set forth on Schedule 1.1(c).
"Political Risk Insurer" means each responsible insurance carrier
reasonably acceptable to the Required Lenders which provides Political Risk
Insurance.
"Post-Default Rate" means (a) in respect of any Advances not paid when
due (whether at stated maturity, by acceleration or otherwise), a rate per
annum during the period commencing on the due date until such Advances are paid
in full equal to: (i) if such Advances are Prime Advances, 2% above the Prime
Rate as in effect from time to time plus the Applicable Margin for Prime
Advances (but in no event less than the interest rate in effect on the due
date), or (ii) if such Advances are LIBOR Advances, 2% above the rate of
interest in effect thereon at the time of such default until the end of the
then current Interest Period therefor and, thereafter, 2% above the Prime Rate
as in effect from time to time plus the Applicable Margin for Prime Advances
(but in no event less than the interest rate in effect on the due date); and
(b) in respect of other
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amounts payable by the Company hereunder (other than interest) not paid when
due (whether at stated maturity, by acceleration or otherwise), a rate per
annum during the period commencing on the due date until such other amounts are
paid in full equal to 2% above the Prime Rate as in effect from time to time
plus the Applicable Margin for Prime Advances (but in no event less than the
interest rate in effect on the due date). In each case, the Post-Default Rate
shall not exceed the maximum post-default interest rate permitted by applicable
law.
"Prepayment Account" shall have the meaning ascribed to such term in
subsection 2.5(a)(iv).
"Prepayment Escrow Deposit Account" means the U.S. Receipt Account (as
defined in the Company Security Deposit Agreement) established pursuant to the
Company Security Deposit Agreement.
"Prime Advances" means Advances which bear interest at a rate based
upon the Prime Rate.
"Prime Rate" means the prime commercial lending rate from time to time
as published in The Wall Street Journal (United States edition). Each change
in any interest rate provided for herein based upon the Prime Rate resulting
from a change in the Prime Rate shall take effect on the beginning of the day
of such change in the Prime Rate.
"Prime Rate Borrowing" shall mean a Borrowing comprised of Prime
Advances.
"Public Equity Offering" means an underwritten primary public offering
of Common Stock of the Company pursuant to an effective registration statement
under the Securities Act.
"Public Market" shall be deemed to exist if (i) a Public Equity
Offering has been consummated and (ii) at least 15% of the total issued and
outstanding common stock of the Company has been distributed by means of an
effective registration statement under the Securities Act or sales pursuant to
Rule 144 under the Securities Act or any combination thereof.
"Rate" has the meaning ascribed to such term in the definition of
"Type".
"Recurring Revenues" means total gross revenues earned by the
Borrowing Affiliates and their Subsidiaries from recurring revenue sources
(including, without limitation, interconnect fees, monthly fees, usage fees,
roaming fees, air time charges, value-added services, each adjusted for
inflation in accordance with GAAP, and additional service charges, less the bad
debt expense for that period indicated on the income statement of the Borrowing
Affiliates). Recurring Revenues shall not include equipment sales or leases of
IDEN or other Subscriber units.
"Redeemable Stock" means any class or series of capital stock of a
Person that by its terms or otherwise is (i) required to be redeemed prior to
the Maturity Date, (ii) redeemable at the option of the holder thereof at any
time prior to the Maturity Date, (iii) convertible into or exchangeable for
capital stock referred to in (i) or (ii) above or Indebtedness having a
scheduled
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maturity prior to the Maturity Date; provided that any capital stock that would
not constitute "Redeemable Stock" but for the provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such capital
stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to the Maturity Date shall not constitute Redeemable Stock if the "asset
sale" or "change of control" provisions applicable to such stock specifically
provide that such Person will not repurchase or redeem any such stock pursuant
to such provision prior to the Company's indefeasible repayment in full in cash
of the Obligations.
"Refinancing Advance" means an Advance (or portion thereof) requested
by the Company in a Request for Financing and specified therein as intended to
be used by the Company and Infocom to refinance the loans under the 1997
Infocom Facility and the Infocom Bridge Facility.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
"Regulatory Change" means any change after the date of this Agreement
in United States federal, state or foreign laws or regulations (including,
without limitation, Regulation D and the laws or regulations that designate any
assessment rate relating to certificates of deposit or otherwise) or the
adoption or making after such date of any interpretations, directives or
requests applying to a class of banks of or under any United States federal,
state or foreign laws or regulations (whether or not having the force of law)
by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reimbursable Payments" means the aggregate of payments made by the
Company, a Borrowing Affiliate or Nextel Argentina during the Reimbursement
Period to Motorola, Inc. (other than payments made to Motorola, Inc. using
funds obtained (a) under the 1997 Infocom Facility, (b) under the Infocom
Bridge Facility, (c) with the proceeds of Attributable Borrowings, (d) with the
proceeds of Reimbursement Advances or (e) with the proceeds of loans, if any,
by the Motorola Entities under the Nextel Argentina Facility) related to the
purchase of IDEN Equipment and Services by or for the direct benefit of a
Borrowing Affiliate or Nextel Argentina.
"Reimbursement Advance" means an Advance (or portion thereof)
requested by the Company in a Request for Financing and specified therein as
intended to be used to reimburse the Company for Reimbursable Payments.
"Reimbursement Period" means the period from and including January 1,
1997 through and including the Commitment Termination Date.
"Related Borrowing Affiliate" means (a) with respect to the System to
be built and operated, and the Telecommunications Business to be conducted, in
Japan, J-Com, (b) with respect to the System to be built and operated, and the
Telecommunications Business to be conducted, in Mexico, Nextel Mexico, (c) with
respect to the System to be built and operated, and the Telecommunications
Business to be conducted, in Peru, Nextel Peru, (d) with respect to the System
to be built and operated, and the Telecommunications Business to be conducted,
in the Philippines, Infocom.
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"Relevant Country" means each of Japan, Mexico, Peru, the Philippines
and each other country approved in writing by the Required Lenders in which the
Company and/or a Borrowing Affiliate is establishing or operating a System and
related Telecommunications Business.
"Relevant Guarantor" has the meaning ascribed to such term in the
definition of "Material Adverse Effect".
"Request for Financing" means a request described in subsection 2.2(a)
hereof substantially in the form of Exhibit B hereto, duly completed and
executed by the Company.
"Required Lenders" shall mean, prior to an assignment by the Initial
Lender pursuant to Section 13.5, the Initial Lender, and thereafter, those
lenders hereunder having proportionate exposure with respect to remaining
Commitments, if any, and unpaid Advances, in excess of 50% of the total
remaining Commitments, if any, and unpaid Advances of all Lenders.
"Reserve Requirement" means, with respect to any Lender, for any LIBOR
Advances made or maintained by such Lender for any Interest Period as to which
interest is payable hereunder, the average rate at which reserves (including,
without limitation, any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period by such Lender against
"Eurocurrency liabilities" (as such term in used in Regulation D).
"Restricted Subsidiary" means any Subsidiary (for this purpose,
including each Borrowing Affiliate and its Subsidiaries, whether or not a
Subsidiary of the Company) other than an Unrestricted Subsidiary.
"SEC Reports" means the annual, quarterly or current reports and proxy
statements filed from time to time by the Company pursuant to the Securities
and Exchange Act of 1934, as amended.
"S&P" means Standard & Poor's Rating Services Group, a division of The
McGraw Hill Companies, Inc.
"Securities Act" means the Securities Act of 1933, as amended, of the
United States of America.
"Security Documents" means individually and collectively the Company
Deposit Security Agreement and the Pledge Agreements, and any financing
statements, registrations or similar documents filed or recorded in connection
with, or in addition to, the foregoing.
"Semi Annual Dates" means June 30 and December 31.
"Subscriber Units" means with respect to any System, as at any date,
the aggregate number of units employing digital technology, subscribing to, and
paying for, communications services provided by the Related Borrowing Affiliate
in connection with such System, excluding
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any such unit to the extent that accounts receivable generated by operation of
such unit are more than ninety (90) days past due as of such date.
"Subsidiary" shall mean, with respect to any Person (herein referred
to as the "parent"), any corporation, partnership, association or other
business entity (a) of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary
voting power or more than 50% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held by the parent,
or (b) that is, at the time any determination is made, otherwise Controlled by,
the parent or one or more Subsidiaries of the parent or by the parent and one
or more Subsidiaries of the parent.
"Supplemental Credit Parties" means ▇▇▇▇▇, Nextel Brazil, the
Subsidiaries of Nextel Brazil, the Nextel Argentina Parent and Nextel
Argentina.
"System" means each wireless communications system to be constructed
and operated in a Relevant Country by the Company and the Related Borrowing
Affiliate utilizing an IDEN System.
"System Documents" means, for each System, to the extent constituting
agreements or documents material to the System (i) the IDEN Equipment and
Services Agreements, (ii) the Management Agreements, (iii) the Leases, and (iv)
any Additional System Document, and for all the Systems, all such agreements.
"Taxes" means, with respect to the Administrative Agent, the
Collateral Agent and any Lender, any present or future taxes, levies, imposts,
stamp duties, fees, charges, deductions, withholding, restrictions or
conditions of any nature whatsoever imposed, levied, collected, assessed or
withheld by or within any Relevant Country or any political subdivisions or
taxing authority thereof or therein or by or within any jurisdiction from which
payment is made on account of the transactions contemplated by the Credit
Documents or by or imposed on the Administrative Agent, the Collateral Agent or
any Lender (a) by the jurisdiction under the laws of which the Administrative
Agent (in the case of payments to the Administrative Agent), the Collateral
Agent (in the case of payments to the Collateral Agent) or such Lender is
organized or any Governmental Authority or taxing authority thereof or therein,
or (b) by any jurisdiction in which the Administrative Agent's (in the case of
payments to the Administrative Agent), the Collateral Agent's (in the case of
payments to the Collateral Agent) or such Lender's applicable Lending Offices
are located or any Governmental Authority or taxing authority thereof or
therein; excluding (i) taxes imposed on the net income, gross revenues or net
worth of the Administrative Agent, the Collateral Agent or any Lender (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income of
the Administrative Agent, the Collateral Agent or any Lender (or Transferee),
in each case by the jurisdiction under the laws of which the Administrative
Agent, the Collateral Agent or such Lender (or Transferee) is organized or any
political subdivision thereof.
"Telecommunications Business" means, with respect to each System, the
radio paging, mobile communications, personal communications services and
related wireless services in the Relevant Country in which the Company and the
Related Borrowing Affiliate are engaged.
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"Third Party Guarantors" means each Person executing and delivering a
Third Party Guaranty as listed on Schedule 5.1(a) hereto and each other
Acceptable Guarantor executing and delivering a Third Party Guaranty.
"Third Party Guaranty" has the meaning set forth in subsection 5.1(a).
"Third Party Pledge Agreement" has the meaning ascribed to such term
in subsection 6.1(b)(i) hereof.
"Transferee" has the meaning ascribed to such term in the definition
of "Taxes".
"Type", when used in respect of any Advance, shall refer to the Rate
by reference to which interest on such Advance is determined. For purposes
hereof, the term "Rate" shall include the LIBOR Rate and the Prime Rate.
"Utilized EBITDA Adjustment" has the meaning set forth in Section
8.15(i).
"Unrestricted Subsidiary" means a Subsidiary of the Company designated
as an "Unrestricted Subsidiary" pursuant to and in accordance with the terms of
Section 9.18.
"Vendor" shall mean Motorola, Inc., a Delaware corporation.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wholly-Owned Subsidiary" of any Person shall mean a Subsidiary of
such Person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100% of the equity or 100% of the
ordinary voting power or 100% of the general partnership interests are, at the
time any determination is being made, owned, controlled or held by such Person
or one or more Wholly-Owned Subsidiaries of such Person or by such Person and
one or more Wholly-Owned Subsidiaries of such Person. Without regard to the
foregoing, "Wholly-Owned Subsidiary" shall include each of the entities set
forth on Schedule 1.1(e).
SECTION 1.2 INTERPRETATION.
In this Agreement the singular includes the plural and the plural the
singular; words importing any gender include the other gender; references to
statutes or regulations are to be construed as including all statutory or
regulatory provisions consolidating, amending or replacing the statute or
regulation referred to; references to "writing" include printing, typing,
lithography and other means of reproducing words in a tangible visible form,
references to articles, sections (or subdivisions of sections), exhibits,
annexes or schedules are to this Agreement unless otherwise indicated;
references to agreements and other contractual instruments shall be deemed to
include all schedules and exhibits to such agreement and all subsequent
amendments and other modifications to such agreements and contractual
instruments, but only to the extent such
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amendments and other modifications are not prohibited by the terms of this
Agreement, unless otherwise indicated; and references to Persons include their
respective permitted successors and assigns and, in the case of Governmental
Authorities, Persons succeeding to their respective functions and capacities.
SECTION 1.3 ACCOUNTING PRINCIPLES AND TERMS.
Except as otherwise provided in this Agreement: (a) all computations
and determinations as to financial matters, and all financial statements to be
delivered under this Agreement, shall be made or prepared in accordance with
GAAP (including, without limitation, principles of consolidation where
appropriate) applied on a consistent basis; and (b) all accounting terms used
in this Agreement shall have the meanings respectively ascribed to such terms
by such principles; provided, however, that if the Company notifies the
Administrative Agent that the Company wishes to amend any covenant in Sections
2.5, 8.15 or any related definition as a result of a change in GAAP or its
application to an Affiliated Credit Party after the date of this Agreement to
eliminate the effect of such change on the operation of such covenant (or if
the Administrative Agent notifies the Company that the Required Lenders wish to
amend Section 2.5 or Section 8.15 or any related definition for such purpose),
then the Company's compliance with such covenant shall be determined on the
basis of GAAP and its application in effect immediately before the relevant
change in generally accepted accounting principles or their application became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Company and the Required Lenders.
SECTION 2 ADVANCES
SECTION 2.1 COMMITMENT.
(a) Upon the terms and subject to the conditions hereinafter set
forth, each Lender agrees, severally but not jointly, to make credit available
in Dollars to the Company during the period from the Closing Date through and
including the Commitment Termination Date in an aggregate principal amount up
to but not exceeding the Available Commitment (each such advance being referred
to as an "Advance"; and collectively as the "Advances"). All Advances shall be
Invoice Advances, Reimbursement Advances or Refinancing Advances. All Invoice
Advances and Refinancing Advances shall be Attributable Borrowings of the type
specified in the Request for Financing delivered by the Company in respect
thereof pursuant to Section 2.2. Notwithstanding anything to the contrary
contained in this Agreement: (i) no Lender shall be under any obligation to
make any Advance hereunder if, on the date proposed for such Advance and after
giving effect thereto, the aggregate Attributable Borrowings of the type
specified for such Advance (including, without limitation, the then requested
Advance and all previously made Attributable Borrowings, whether or not paid or
prepaid) would exceed the Attributable Borrowing Sublimit (it being understood
for purposes of this clause (a)(i) that the outstanding principal amount and
accrued and unpaid interest thereon under the 1997 Infocom Facility and the
Infocom Bridge Facility shall, to the extent such Attributable Borrowing is not
a Refinancing Advance, be considered to be Attributable Borrowings of Infocom),
(ii) no Lender shall have any obligation to make any requested Reimbursement
Advance if, after giving effect thereto, the aggregate of all Reimbursement
Advances made hereunder (including, without limitation, the then
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requested Advance and all previously made Reimbursement Advances, whether or
not paid or prepaid) would exceed the lesser of $100,000,000 and the aggregate
amount of Reimbursable Payments, (iii) no Lender shall be under any obligation
to make any Invoice Advance or Reimbursement Advance hereunder if the amount of
the requested Advance exceeds the amount due and payable (excluding import
taxes and/or duties) set forth in the applicable Invoice, (iv) no Lender shall
be under any obligation to make any Refinancing Advance hereunder if the amount
of the requested Advance exceeds the principal amount outstanding and accrued
and unpaid interest thereon under the Infocom Bridge Facility and the 1997
Infocom Facility and (v) no Lender shall have any obligation to make any
requested Advance if, after giving effect thereto, the aggregate amount of all
Advances made by the Lender would exceed its Commitment. Each Lender
represents, warrants and covenants that no part of the funds to be used by it
to make or hold any Advance constitutes, directly and indirectly, the assets of
an "employee benefit plan", within the meaning of Section 3(3) of ERISA, or a
"plan", within the meaning of Section 4975(e)(1) of the Code.
(b) Subject to and upon the terms and conditions of this
Agreement, the Company may, at its option, avail itself of the Available
Commitment in one or more drawdowns in the amount of the relevant Invoice (in
the case of Invoice Advances and Reimbursement Advances) or the relevant
Refinancing Advance, but in any event not in excess of the remaining aggregate
amount of the Available Commitment and in all cases subject to the limitations
in subsections 2.1(a) and 2.2(a).
SECTION 2.2 PROCEDURE FOR BORROWING; ADVANCES.
(a) In order to request a Borrowing, the Company shall hand
deliver or telecopy to the Administrative Agent a duly completed Request for
Financing (or telephone the Administrative Agent, promptly confirmed with a
written and duly completed Request for Financing) (i) in the case of a LIBOR
Borrowing not later than 1:00 p.m., Chicago time, three Business Days before a
proposed Borrowing, and (ii) in the case of a Prime Rate Borrowing, not later
than 2:00 p.m., Chicago time, one Business Day before a proposed Borrowing.
Each Request for Financing (including a telephonic Request for Financing) shall
be irrevocable, shall be signed by or on behalf of the Company and shall
specify the following information: (i) whether such Borrowing is to be a LIBOR
Borrowing or a Prime Rate Borrowing; (ii) the date of such Borrowing (which
shall be a Business Day and is defined herein as the "Drawdown Date"); (iii)
the number and location of the account to which funds are to be disbursed
(which shall be an account that complies with the requirements of subsection
2.2(d)) and the identity of the recipient thereof (who shall correspond to the
provisions in subsection 2.2(g)); (iv) the amount of such Borrowing; (v) if
such Borrowing is to be a LIBOR Borrowing, the initial Interest Period with
respect thereto; (vi) if such Advance is an Attributable Borrowing, the
identity of the related Borrowing Affiliate, and (vii) whether such Advance is
an Invoice Advance, a Reimbursement Advance or a Refinancing Advance. If the
requested Advance is an Invoice Advance or a Reimbursement Advance, the Request
for Financing shall be accompanied by proper invoices for IDEN Equipment and
Services (which state the amount due and payable or, in the case of
Reimbursement Advances, reasonably satisfactory evidence that any down payment,
milestone payment or other payment was paid during the
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Reimbursement Period, under the IDEN Equipment and Service Agreement(s) which
is to be paid or reimbursed with the Advance requested in such Request for
Financing) purchased by the Company, the Borrowing Affiliates, Nextel Argentina
or Nextel Brazil under the IDEN Equipment and Service Agreements (such
documents being collectively referred to as an "Invoice") or such other
documentation as is reasonably acceptable to the Administrative Agent;
provided, however, that, notwithstanding any contrary specification in any
Request for Financing, each requested Borrowing shall comply with the
requirements set forth in this Section 2.2. If no election as to the Type of
Borrowing is specified in any such notice, then the requested Borrowing shall
be a Prime Rate Borrowing. If no Interest Period with respect to any LIBOR
Borrowing is specified in any such notice, then the Company shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the Lenders of any notice given pursuant to this
Section 2.2 (and the contents thereof), of each Lender's portion of the
requested Borrowing and the account to which Advances made in connection with
the requested Borrowing are to be wired. The aggregate amount to be advanced
by the Lenders pursuant to a Request for Financing satisfying the foregoing
shall be limited to a principal amount which shall equal the least of (w) the
amount requested as an Advance pursuant to such Request for Financing, (x) in
the case of Reimbursement Advances and Invoice Advances, the amount paid or due
and payable as reflected in the Invoice submitted in connection with such
Request for Financing (exclusive of import taxes and/or other duties), (y) in
the case of Refinancing Advances, the outstanding principal balance under and
interest on the 1997 Infocom Facility and the Infocom Bridge Facility, or (z)
subject to Section 2.1 hereof, the Available Commitment.
(b) Each Advance shall be made as part of a Borrowing consisting
of Advances made by the Lenders ratably in accordance with their applicable
Commitments; provided, however, that the failure of any Lender to make any
Advance shall not in itself relieve any other Lender of its obligation to lend
hereunder (it being understood, however, that no Lender shall be responsible
for the failure of any other Lender to make any Advance required to be made by
such other Lender). The Advances comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 and
not less than $5,000,000, (ii) equal to the remaining Available Commitment or
(iii) equal to the amount stated on the relevant Invoice (in the case of
Invoice Advances and Reimbursement Advances) or the principal amount
outstanding and accrued and unpaid interest thereon under the Infocom Bridge
Facility and the 1997 Infocom Facility (in the case of Refinancing Advances).
(c) Subject to Section 2.11, each Borrowing shall be comprised
entirely of Prime Advances or LIBOR Advances as Company may request pursuant to
subsection 2.1(a). Each Lender may at its option make any LIBOR Advance by
causing any domestic or foreign branch of such Lender to make such Advance;
provided that any exercise of such option shall not affect the obligation of
the Company to repay such Advance in accordance with the terms of this
Agreement. Borrowings of more than one Type may be outstanding at the same
time; provided, however, that Company shall not be entitled to request any
Borrowing that, if made, would result in more than ten (10) LIBOR Borrowings
outstanding hereunder at any time. For purposes of the foregoing, Borrowings
having different Interest Periods, regardless of whether they commence on the
same date, shall be considered separate Borrowings.
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(d) Each Lender shall make each Advance to be made by it hereunder
on the Drawdown Date thereof by wire transfer of immediately available funds to
such account in Chicago as the Administrative Agent may designate not later
than 12:00 p.m. (noon), Chicago time, and the Administrative Agent shall,
promptly upon receipt thereof, credit the amounts so received to an account as
designated by the Company in accordance with subsection 2.2(g), in the
applicable Request for Financing, or, if a Borrowing shall not occur on such
date because any condition precedent herein specified shall not have been met,
return the amounts so received to the respective Lenders.
(e) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with subsection 2.2(d) above and the Administrative Agent may, in
reliance upon such assumption make available to the Company on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Company severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Company until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Company, the
interest rate(s) applicable at the time to the Advances comprising such
Borrowing and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). If such
Lender shall repay to the Administrative Agent such corresponding amount, such
amount shall constitute such Lender's Advance as part of such Borrowing for
purposes of this Agreement.
(f) Notwithstanding any other provision of this Agreement, the
Company shall not be entitled to request any Interest Period with respect to
any LIBOR Borrowing that would end after the Maturity Date.
(g) The Company authorizes and directs the Administrative Agent
and the Lenders to, without any further action or instruction (other than as
set forth in the Request for Financing), disburse the proceeds of such Advance
directly to the Vendor (in the case of Invoice Advances), the Company (in the
case of Reimbursement Advances) or Motorola Credit Corporation (or its assigns)
(in the case of Refinancing Advances), as specified in the Request for
Financing. The Company acknowledges that disbursement of funds to a Person
other than the Company in accordance with the Request for Financing pursuant to
the immediately preceding sentence shall be deemed receipt by the Company of
the proceeds of the Advances made hereunder. The Company further acknowledges
that the proceeds of each Advance consisting of an Invoice Advance or a
Refinancing Advance are being borrowed for the benefit of the Borrowing
Affiliate specified by indication of the type of Attributable Borrowing in the
related Request for Financing and hereby acknowledges that such proceeds are
and will be lent by the Company to such Borrowing Affiliate and such loan shall
be reflected (and the Administrative Agent is hereby
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instructed to reflect each such loan) on the appropriate Borrowing Affiliate
Note (irrespective of whether the funds are disbursed directly to the Vendor,
Motorola Credit Corporation, the Company or such Borrowing Affiliate).
SECTION 2.3 EVIDENCE OF DEBT.
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Company to
such Lender resulting from each Advance made by such Lender from time to time,
including the amounts of principal and interest payable and paid such Lender
from time to time under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Advance made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Company to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder from the Company or any Guarantor and each Lender's share
thereof.
(c) The entries made in the accounts maintained pursuant to
subsections 2.3(a) and 2.3(b) above shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligations of
the Company to repay the Advances in accordance with their terms.
(d) Any Lender may request that Advances made by it be evidenced
by a promissory note. In such event, the Company shall execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns)
substantially in the form of Exhibit C hereto (each a "Financing Note").
SECTION 2.4 REPAYMENT OF PRINCIPAL OF ADVANCES.
(a) The Company shall pay to the Administrative Agent the
principal of the Advances made by the Lenders outstanding at the close of
business on the Commitment Termination Date in eight (8) consecutive
semi-annual installments on the Payment Dates (provided that the last such
payment shall be in an amount sufficient to repay in full the principal amount
of such Advances), with the amount of the installment paid on each Payment Date
to be equal to the respective percentages of the principal of such Advances
outstanding at the close of business on the Commitment Termination Date as set
forth below:
Percentage of Commitment Termination
Date outstanding Principal
Payment Date Payable on such Payment Date
------------ ----------------------------
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June 30, 2001 12.5%
December 31, 2001 12.5%
June 30, 2002 12.5%
December 31, 2002 12.5%
June 30, 2003 12.5%
December 31, 2003 12.5%
June 30, 2004 12.5%
December 31, 2004 12.5%
(b) The Advances shall be repaid (i) as and when necessary to
cause (1) the aggregate principal amount of the Advances outstanding not to
exceed the Available Commitment and to cause (2) the Attributable Borrowings of
a Borrowing Affiliate not to exceed its Attributable Borrowing Sublimit and
(ii) as required by subsection 2.5(a) hereof.
SECTION 2.5 PREPAYMENTS.
(a) Mandatory Prepayments.
(i) Not later than the date 90 days after the end of each
fiscal year of the Company (commencing with the fiscal year ending on
December 31, 2000), the Company shall prepay Advances in an aggregate
amount equal to 50% of the Company's Excess Cash Flow for such fiscal
year (determined without regard to the Excess Cash Flows of the
Borrowing Affiliates), if positive.
(ii) Without limiting the Company's obligations under
subsection 2.1(a)(i), promptly upon receipt by the Company or any
Affiliated Parent Guarantor of any optional or mandatory prepayment or
scheduled interest or principal payment in respect of a Borrowing
Affiliate Note or any Existing Intercompany Loan, the Company shall
prepay Advances in an amount equal to 100% of such payment or
prepayment; provided, that a prepayment required under this clause
(ii) resulting from an optional prepayment in respect of a Borrowing
Affiliate Note or from a payment in respect of an Existing
Intercompany Loan may be deposited into the Prepayment Escrow Deposit
Account and, if requested in writing by the Company, so long as no
Default or Event of Default has occurred and is continuing, released
therefrom to the Company for lending to a Borrowing Affiliate as an
Attributable Borrowing hereunder (a "Rollover Loan"). Each Rollover
Loan shall (i) be evidenced by and subject to repayment under a
Borrowing Affiliate Note, (ii) be subject to all conditions to lending
otherwise applicable to a Borrowing Affiliate Note, (iii) reduce the
Attributable Borrowing Sublimit for the relevant Borrowing Affiliate,
and (iv) otherwise be treated as an Attributable Borrowing; provided,
that the Company shall not be required to deliver an Invoice in
connection with any Rollover Loan.
(iii) The Company shall deliver to the Administrative Agent
at the time of each prepayment required under this subsection 2.5(a),
(i) a certificate signed by the chief financial officer of the Company
setting forth in reasonable detail the calculation of the
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amount of such prepayment and (ii) to the extent practicable, at least
three Business Days' prior written notice of such prepayment. Each
notice of prepayment shall specify the prepayment date and the
principal amount of the Advances (or portion thereof) to be prepaid.
All prepayments of Borrowings under this subsection 2.5(a) shall be
subject to subsection 2.5(c), but shall otherwise be without premium
or penalty.
(iv) To the extent possible, amounts to be applied
pursuant to this subsection 2.5(a) to the prepayment of Advances shall
be applied, as applicable, first to prepay outstanding Prime Advances.
Any amounts remaining after each such application shall, at the option
of the Company be applied to prepay LIBOR Advances immediately and/or
shall be deposited in the Prepayment Account (as defined below). The
Administrative Agent shall apply any cash deposited in the Prepayment
Account to prepay LIBOR Advances, in each case on the last day of
their respective Interest Periods (or, at the direction of the
Company, on any earlier date) until all outstanding LIBOR Advances
have been prepaid or until the allocable cash on deposit with respect
to such Advances has been exhausted. For purposes of this Agreement,
the term "Prepayment Account" shall mean an account established by the
Company with the Administrative Agent (or if requested by the
Administrative Agent, with a bank designated by the Administrative
Agent) and over which the Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal for
application in accordance with this subsection 2.5(a). The
Administrative Agent will, at the request of the Company, invest
amounts on deposit in the Prepayment Account in Permitted Investments
that mature prior to the last day of the applicable Interest Periods
of the LIBOR Borrowings to be prepaid; provided, however, that (i) the
Administrative Agent shall not be required to make any investment that
in its sole judgment, would require or cause the Administrative Agent
to be in, or would result in any, violation of any law, statute, rule
or regulation and (ii) the Administrative Agent shall have no
obligation to invest amounts on deposit in the Prepayment Account if a
Default or Event of Default shall have occurred and be continuing.
The Company shall indemnify the Administrative Agent for any losses
relating to the investments so that the amount available to prepay
LIBOR Borrowings on the last day of the applicable Interest Period is
not less than the amount originally deposited in the Prepayment
Account (which original deposit shall be in an amount sufficient to
pay the relevant LIBOR Advance and interest through the applicable
Interest Period). Other than any interest earned on such investments
(which shall be for the account of the Company, to the extent not
necessary for the prepayment of LIBOR Advances in accordance with this
subsection 2.5(a)), the Prepayment Account shall not bear interest.
Interest or profits, if any, on such investments shall be deposited in
the Prepayment Account and reinvested and disbursed as specified
above. If the maturity of the Advances have been accelerated pursuant
to Section 11, the Administrative Agent may, in its sole discretion,
apply all amounts on deposit in the Prepayment Account to satisfy any
of the Obligations. The Company hereby grants to the Administrative
Agent, for its benefit and the benefit of the Lenders, a security
interest in its Prepayment Account to secure the Obligations.
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(b) Optional Prepayment; Voluntary Reduction of Commitment.
(i) The Company may prepay Advances, in whole or in part, in
integral multiples of $500,000 upon not less than three Business Days prior
written notice to the Administrative Agent of the principal amount to be
prepaid and the date of such prepayment. On the date specified for prepayment,
the Company shall pay such principal amount plus accrued interest on such
principal amount prepaid to the date of such prepayment. Notwithstanding the
foregoing, unless the conditions set forth in subsection 2.5(c) hereof shall be
simultaneously satisfied, LIBOR Advances may be only repaid on the last day of
the Interest Period for such LIBOR Advance.
(ii) The Company shall have the right, at any time and from
time to time, without premium or penalty, to permanently reduce the Maximum
Commitment hereunder; provided, that any such reduction in the Maximum
Commitment shall reduce the respective Commitment of each Lender pro rata; and,
provided further, that no such reduction shall reduce the Maximum Commitment to
an amount less than the sum of the then outstanding Advances. The right of the
Company to voluntarily reduce the Maximum Commitment shall be exercisable by
delivery of written notice (including by facsimile) or telephonic notice
(thereafter promptly confirmed in writing) to the Administrative Agent prior to
12:00 noon, Chicago time, at least three Business Days prior to the proposed
permanent reduction in the Maximum Commitment, which notice shall specify the
amount by which the Company proposes to permanently reduce the Maximum
Commitment and the proposed date of such reduction.
(c) Broken Funding Indemnification.
The Company shall pay to the Agents and each Lender, such
amount or amounts as shall compensate the Agents and each Lender for any loss,
cost or expense incurred by an Agent or a Lender (as reasonably determined and
documented by affected Agent or Lender) as a result of:
(i) prepayment or repayment of a LIBOR Advance on a date
other than the last day of the Interest Period for such LIBOR Advance;
or
(ii) any failure by the Company to borrow a LIBOR Advance
on the Drawdown Date specified in the relevant Request for Financing
under Section 2.2 hereof, such compensation to include, without
limitation, an amount equal to: (x) any actual loss or expense
suffered by either Agent or any Lender during the period from such
failure to borrow to the last day of such Interest Period if the rate
of interest obtainable by such Lender or Agent upon the redeployment
of an amount of funds equal to the amount not borrowed is less than
the rate of interest applicable to such LIBOR Advance for such
Interest Period (excluding any margin) or (y) any loss or expense
suffered by the any Agent or any Lender in liquidating deposits in
respect of LIBOR Advances prior to maturity.
The Company shall pay any amount due hereunder no later than
seven (7) days after receipt of an invoice therefor from the affected Agent or
Lender.
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(d) Effect of Prepayment.
All Advances prepaid (other than pursuant to Section 2.2(e)),
whether by mandatory or optional prepayment, may not be reborrowed other than
pursuant to a Rollover Loan made in accordance with Section 2.5(a)(ii). All
prepayments shall be applied ratably to the remaining principal installments
due under Section 2.4; provided, if the Commitment Termination Date has not
occurred prepayments shall be applied to the principal balance of then
outstanding Advances.
(e) Certain Reimbursements In Respect of Prepayments.
Without affecting the obligations of the Company set forth
above in subsections 2.5(a) and 2.5(c), each Agent and each Lender acknowledges
that the primary source of funds for the prepayments described above will be
revenue generated in the Relevant Countries by the operations of the Borrowing
Affiliates. In the event that the Company is prohibited by applicable law from
obtaining the funds from a Borrowing Affiliate necessary to make the prepayment
or requires the approval of a Governmental Authority in order to do so (which
has not theretofore been obtained) and therefore is unable to make the
prepayment within the period specified above (notwithstanding the reasonable
efforts of the Company), the Company shall cause the affected Borrowing
Affiliate to establish a restricted escrow account, for the benefit of the
Collateral Agent (on behalf of the Lender Parties), into which such funds shall
be deposited and the period for making such prepayment shall be extended by up
to 270 days (i.e., a total of 360 days from the end of the relevant fiscal
year) with such funds released to the Collateral Agent from escrow (unless the
Company has separately made the required payment to the Collateral Agent) on
the earlier of the end of such extended prepayment period and the date the
necessary consents and/or waivers are obtained. At the sole discretion of the
Required Lenders and in lieu of the escrow account referred to in the preceding
sentence, the Collateral Agent may require (at the direction of the Required
Lenders), if the Company is unable to make the prepayment required above due to
the circumstances described in the immediately preceding sentence, the Company
to cause the affected Borrowing Affiliate to make, on behalf of the Company,
the affected portion of such prepayment to the Administrative Agent in the
local currency of the Relevant Country in an amount equal, at the then
prevailing spot rates (as determined at such time by the Administrative Agent)
for conversion of such currency into Dollars, to the required prepayment amount
in Dollars.
SECTION 2.6 INTEREST; FEES.
(a) The Company shall pay to the Administrative Agent for the
ratable benefit of the Lenders interest on the outstanding principal amount of
each Advance made by the Lenders, for the period commencing on the date of such
Advance until such Advance is paid in full, at the following rate per annum:
(i) if such Advance is a Prime Advance, a rate per annum
equal to the Prime Rate (as in effect from time to time) plus the
Applicable Margin; and
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(ii) if such Advance is a LIBOR Advance, for each Interest
Period relating thereto, the LIBOR Rate for such Advance plus the
Applicable Margin.
Accrued interest on each Advance shall be paid in arrears on
the Interest Payment Dates. Notwithstanding the foregoing, interest that is
payable at the Post-Default Rate shall be payable from time to time on demand
of the Administrative Agent or the Required Lenders.
(b) Anything herein to the contrary notwithstanding, if, on or
prior to the determination of an interest rate for any LIBOR Advance for any
Interest Period therefor, any Lender reasonably determines (which determination
shall be conclusive absent manifest error):
(i) by reason of any event affecting the money markets in
the United States of America or the London interbank market,
quotations of interest rates for the relevant deposits are not being
provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such LIBOR Advances
under this Agreement; or
(ii) the rates of interest referred to in the definition
of "LIBOR Base Rate" in Section 1.1 hereof upon the basis of which the
rate of interest on any LIBOR Advance for such period is determined,
do not accurately reflect the cost to such Lender of making or
maintaining such LIBOR Advance for such period, then, in addition to
the Lender's rights under Sections 2.11 and 3.2,
such Lender shall give the Company and the Administrative prompt notice thereof
(and shall thereafter give the Company prompt notice of the cessation, if any,
of such condition), and so long as such condition remains in effect, such
Lender shall be under no obligation to make LIBOR Advances or to convert Prime
Advances into LIBOR Advances pursuant to subsection 2.2(a) or Section 2.8
hereof and the Company shall, on the last day(s) of the then current Interest
Period(s) for the outstanding LIBOR Advances either prepay such LIBOR Advances
in accordance with subsection 2.5(b) hereof or convert such LIBOR Advances into
Prime Advances.
(c) Without prejudice to the provisions of Section 11.2 hereof, in
the event of default by the Company in payment of any principal amount of the
Advances or interest thereon when due (whether at the stated maturity, by
acceleration or otherwise), the Company shall pay to the Lenders interest on
such past due and unpaid principal amount and (to the extent permitted by
applicable law) on such defaulted interest from the due date until the date of
payment in full (both before as well as after judgment), at the Post-Default
Rate. Each determination of any loss or expense by a Lender or an Agent under
this subsection 2.6(c) shall be conclusive in the absence of manifest error.
(d) Interest on all Prime Advances shall be computed on the basis
of a year of 365/366 days and actual days elapsed (including the first day but
excluding the last) occurring in the period for which payable and interest on
all LIBOR Advances shall be computed on the basis of 360 days
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and actual days elapsed (including the first day but excluding the last)
occurring in the period for which payable.
(e) The Company agrees to pay in arrears to the Administrative
Agent on behalf of the Lenders on each Semi Annual Date commencing with June
30, 2000 through and including December 31, 2000, and, if earlier, on the date
the Obligations are paid in full, a commitment fee equal to 0.50% per annum of
the average daily unused amount of the Commitments (excluding the Commitments,
if any, in respect of the incremental Indebtedness described in clause (e) of
the definition of "Permitted Indebtedness", if incurred under this Agreement)
in excess of $100,000,000 during the preceding semi annual period. The
commitment fees required hereunder shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. Additionally, the Company agrees
to pay on the Closing Date to the Administrative Agent such other fees as
described in the Fee Letter.
SECTION 2.7 PAYMENTS.
(a) Except as otherwise provided herein, all payments whatsoever
by the Company to the Administrative hereunder or in respect of any Financing
Note shall be made in Dollars in same-day funds to the order of the Motorola
Credit Corporation at ▇▇▇▇▇▇ Trust and Savings Bank, Chicago, Illinois, USA,
ABA# ▇▇▇-▇▇▇-▇▇▇, for the account of the Administrative Agent, Account #
▇▇▇▇▇▇▇ (or such other place as the Administrative Agent shall have designated
in writing to the Company at least five Business Days prior to the scheduled
payment date), not later than 2:00 p.m. Chicago time, on the day on which such
payment shall become due. Any amounts received after such time on any date
shall be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon.
(b) If any payment hereunder or in respect of any Financing Note
would otherwise be due on a day that is not a Business Day, such payment shall
be made on the next succeeding day that is a Business Day and including the
additional days elapsed in the computation of the interest payable on such next
succeeding Business Day.
SECTION 2.8 CONVERSION AND CONTINUATION. The Company shall have the right
at any time upon prior irrevocable notice to the Administrative Agent (a) not
later than 12:00 p.m., Chicago time, one Business Day prior to conversion, to
convert any LIBOR Advance into a Prime Advance, (b) not later than 11:00 a.m.,
Chicago time, three Business Days prior to conversion or continuation, to
convert any Prime Advance into a LIBOR Advance or to continue any LIBOR Advance
as a LIBOR Advance for an additional Interest Period, and (c) not later than
11:00 a.m., Chicago time, three Business Days prior to conversion, to convert
the Interest Period with respect to any LIBOR Advance to another permissible
Interest Period, subject in each case to the following:
(i) each conversion shall be effected by each of the
Lenders by recording for the account of such Lender the continued
Advance of such Lender resulting from such
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conversion and reducing the Advance being converted by an equivalent
principal amount; accrued interest on any Advance (or portion thereof)
being converted shall be paid by the Company at the time of
conversion;
(ii) if any LIBOR Advance is converted at a time other
than the end of the Interest Period applicable thereto, the Company
shall pay, upon demand, any amounts due to the Lenders pursuant to
subsection 2.5(c);
(iii) any portion of an Advance maturing or required to be
repaid in less than one month may not be converted into or continued
as a LIBOR Advance with an Interest Period ending after the date such
repayment is required;
(iv) any portion of a LIBOR Advance that cannot be
converted into or continued as a LIBOR Advance by reason of the
immediately preceding clause shall be automatically converted at the
end of the Interest Period in effect for such Advance into a Prime
Advance;
(v) no Interest Period may be selected for any LIBOR
Advance that would end later than the Maturity Date; and
(vi) upon notice to the Company from the Administrative
Agent, after the occurrence and during the continuance of a Default or
Event of Default, (A) no outstanding Advance may be converted into, or
continued as, a LIBOR Advance, and (B) unless repaid, each LIBOR
Advance shall be converted to a Prime Advance at the end of the
Interest Period applicable thereto.
Each notice pursuant to this Section 2.8 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Advance that the Company requests be converted or continued, (ii) whether such
Advance is to be converted to or continued as a LIBOR Advance or a Prime
Advance, (iii) if such notice requests a conversion, the date of such
conversion (which shall be a Business Day) and (iv) if such Advance is to be
converted to or continued as a LIBOR Advance, the Interest Period with respect
thereto. If no Interest Period is specified in any such notice with respect to
any conversion to or continuation as a LIBOR Advance, the Company shall be
deemed to have selected an Interest Period of one month's duration. If the
Company shall not have given notice in accordance with this Section 2.8 to
continue any Advance into a subsequent Interest Period (and shall not otherwise
have given notice in accordance with this Section 2.8 to convert such Advance),
such Advance shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be continued into a
new Interest Period as a Prime Advance.
SECTION 2.9 USE OF PROCEEDS.
The Company agrees that the proceeds of the Attributable Borrowings
will be used by the Company solely (i) to make loans to the Borrowing
Affiliates, evidenced by the Borrowing
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Affiliate Notes, to finance the purchase of equipment and services acquired
pursuant to the IDEN Equipment and Service Agreements (including, without
limitation, down payments, milestone payments and other payments due under the
IDEN Equipment and Service Agreements) to be used in connection with the
Systems and related transportation and shipping costs but excluding import
taxes and/or duties related thereto or (ii) if a Refinancing Advance, to repay
(whether or not then due), the outstanding principal amount owing under the
Infocom Bridge Facility and the 1997 Infocom Facility. The Company further
agrees to use the proceeds of the Reimbursement Advances for capital
expenditures or for general corporate or working capital purposes.
SECTION 2.10 CHANGE IN LAW
If any change in any applicable Governmental Rule has made (or has
made it apparent that it is) unlawful for any Credit Party to perform any of
its obligations under any of the Credit Documents and such change could
reasonably be expected to have a Material Adverse Effect then (i) the Lenders
shall be discharged from all obligations to make, renew or maintain the
Advances, and (ii) the Company shall on demand pay to the Administrative Agent
for the benefit of the Lenders, without premium or penalty except as provided
in subsection 2.5(c), the outstanding principal amount of the Advances (as to
itself and each affected Borrowing Affiliate, as applicable) together with
accrued interest thereon and all other moneys due to the Lenders hereunder;
provided, that for so long as the Company is diligently pursuing the contest of
the same by appropriate proceedings and such contest could not reasonably be
expected to have a Material Adverse Effect and adequate reserves have been
established in accordance with GAAP, then the Lenders shall not be so
discharged and the Company shall not be required to so pay upon demand;
provided, further, that if the resultant or potential Material Adverse Effect
does not relate to the Company as a whole or to Nextel Mexico and only relates
to one or more (but not all) Parent Guarantors (other than the Parent
Guarantors with respect to Nextel Mexico) or one or more (but not all)
Borrowing Affiliates (other than Nextel Mexico), then the Lenders' Commitments
will remain in effect, subject to the limitations in Sections 2.1 and 10, with
respect to the Borrowing Affiliates which are unaffected thereby. A Borrowing
Affiliate shall be deemed to be "affected" by a resultant or potential Material
Adverse Effect with respect to itself or to one or more of its Parent
Guarantors (as identified in Schedule 5.1 hereto.)
SECTION 2.11 ILLEGALITY.
(a) Notwithstanding any other provision of this Agreement, if,
after the date hereof, any change in any Governmental Rule shall make it
unlawful for any Lender to make or maintain any LIBOR Advance or to give effect
to its obligations as contemplated hereby with respect to any LIBOR Advance,
then, by written notice to the Company and to the Administrative Agent:
(i) such Lender may declare that LIBOR Advances will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
Prime Advances will not thereafter (for such duration) be converted
into LIBOR Advances), whereupon any request for a LIBOR Borrowing (or
to convert a Prime Rate Borrowing to a LIBOR Borrowing or to continue
a LIBOR Borrowing for an additional Interest Period) shall, as to such
Lender only, be deemed a
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request for a Prime Advance (or a request to continue a Prime Advance
as such for an additional Interest Period or to convert a LIBOR
Advance into a Prime Advance), unless such declaration shall be
subsequently withdrawn; and
(ii) such Lender may require that all outstanding LIBOR
Advances made by it be converted to Prime Advances in which event all
such LIBOR Advances shall be automatically converted to Prime Advances
as of the effective date of such notice as provided in subsection
2.11(b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the LIBOR Advances that would have been made by such Lender or the
converted LIBOR Advances of such Lender shall instead be applied to repay the
Prime Advances made by such Lender in lieu of, or resulting from the conversion
of, such LIBOR Advances.
(b) For purposes of this Section 2.11, a notice to the Company by
any Lender shall be effective as to each LIBOR Advance made by such Lender, if
lawful, on the last day of the Interest Period(s) currently applicable to LIBOR
Advances of such Lender; in all other cases such notice shall be effective on
the date of receipt by the Company.
SECTION 2.12 PRO RATA TREATMENT. Except as required under Sections 2.7 and
2.11, each Borrowing, each payment or prepayment of principal of any Borrowing,
each payment of interest on the Advances, each payment of the fees required
under the Fee Letter or under Section 2.6, each reduction of the Commitments
and each conversion of any Borrowing to or continuation of any Borrowing as a
Borrowing of any Type shall be allocated pro rata among the Lenders in
accordance with their respective applicable Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Advances). Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's percentage
of such Borrowing to the next higher or lower whole Dollar amount.
SECTION 2.13 SHARING OF SETOFFS. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim
against the Company or any other Credit Party, or pursuant to a secured claim
under Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Advance or Advances as a result of which the unpaid principal
portion of its Advances shall be proportionately less than the unpaid principal
portion of the Advances of any other Lender, it shall be deemed simultaneously
to have purchased from such other Lender at face value, and shall promptly pay
to such other Lender the purchase price for, a participation in the Advances of
such other Lender, so that the aggregate unpaid principal amount of the
Advances and participation in Advances held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Advances then
outstanding as the principal amount of its Advances
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prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Advances outstanding prior to such exercise
of banker's lien, setoff or counterclaim or other event; provided, however,
that if any such purchase or purchases or adjustments shall be made pursuant to
this Section 2.13 and the payment giving rise thereto shall thereafter be
recovered, such purchase or purchases or adjustments shall be rescinded to the
extent of such recovery and the purchase price or prices or adjustment restored
without interest. The Company expressly consents to the foregoing arrangements
and agrees that any Lender holding a participation in an Advance deemed to have
been so purchased may exercise any and all rights of banker's lien, setoff or
counterclaim with respect to any and all moneys owing by the Company to such
Lender by reason thereof as fully as if such Lender had made an Advance
directly to the Company in the amount of such participation.
SECTION 3 FUNDING AND YIELD PROTECTION
SECTION 3.1 TAXES, DUTIES, FEES AND CHARGES.
(a) Any and all payments by or on behalf of the Company or any
Credit Party hereunder and under any other Credit Document shall be made, in
accordance with Section 2.7, free and clear of and without deduction for any
and all current or future Taxes. If the Company or any Credit Party shall be
required to deduct any Taxes from or in respect of any sum payable hereunder or
under any other Credit Document to any Agent or any Lender (or any Transferee),
(i) the sum payable shall be increased by the amount (an "additional amount")
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 3.1) such Agent or
such Lender (or Transferee), as the case may be, shall receive an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Company or such Credit Party shall make such deductions and (iii) the Company
or such Credit Party shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Company agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies (including, without limitation, mortgage recording taxes and similar
fees) that arise from any payment made hereunder or under any other Credit
Document or from the execution, delivery, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Credit Document imposed
by any Governmental Authority in the United States, the Relevant Countries or
the jurisdiction of any Payment Location ("Other Taxes").
(c) The Company will indemnify each of the Agents and each Lender
(or Transferee) for the full amount of Taxes and Other Taxes paid by such Agent
or such Lender (or Transferee), as the case may be, and any liability
(including penalties, interest and expenses (including reasonable attorney's
fees and expenses)) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability prepared by the
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Administrative Agent, the Collateral Agent or a Lender (or Transferee), or the
Administrative Agent on its behalf, absent manifest error, shall be final,
conclusive and binding for all purposes. Such indemnification shall be made
within 30 days after the date the Administrative Agent, the Collateral Agent or
any Lender (or Transferee), as the case may be, makes written demand therefor.
(d) As soon as practicable after the date of any payment of Taxes
or Other Taxes by the Company or any other Credit Party to the relevant
Governmental Authority, the Company or such other Credit Party will deliver to
the Administrative Agent, at its address referred to in Section 13.7, the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws
of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") that is entitled to an exemption
from or reduction of, withholding tax under the law of the jurisdiction in
which the Company is located, or any treaty to which such jurisdiction is a
party, with respect to payments by the Company under this Agreement and the
other Credit Documents shall deliver to the Company (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Company as will permit such payments to be made
without withholding or at a reduced rate. In addition, each Non-U.S. Lender
shall deliver such documentation promptly upon the obsolescence or invalidity
of any documentation previously delivered by such Non-U.S. Lender.
Notwithstanding any other provision of this subsection 3.1(e), a Non-U.S.
Lender shall not be required to deliver any documentation pursuant to this
subsection 3.1(e) that such Non-U.S. Lender is not legally able to deliver.
(f) The Company shall not be required to indemnify any Non-U.S.
Lender or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to subsection 3.1(a) or (c)
above to the extent that (i) the obligation to withhold amounts with respect to
United States Federal withholding tax existed and would apply to payments made
to such Non-U.S. Lender on the date such Non-U.S. Lender became a party to this
Agreement (or, in the case of a Transferee that is a participation holder, on
the date such participation holder became a Transferee hereunder) or, with
respect to payments to a new Lending Office, the date such Non-U.S. Lender
designated such new Lending Office with respect to an Advance; provided,
however, that this subsection 3.1(f) shall not apply (x) to any Transferee or
new Lending Office that becomes a Transferee or new Lending Office as a result
of an assignment, participation, transfer or designation made at the request of
the Company and (y) to the extent the indemnity payment or additional amounts
any Transferee, or any Lender (or Transferee), acting through a new Lending
Office, would be entitled to receive (without regard to this subsection 3.1(f))
do not exceed the indemnity payment or additional amounts that the person
making the assignment, participation or transfer to such Transferee, or Lender
(or Transferee) making the designation of such new Lending Office, would have
been entitled to receive in the absence of such assignment, participation,
transfer or designation or (ii) the obligation to pay such
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additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of subsection 3.1(e) above.
(g) Nothing contained in this Section 3.1 shall require any Lender
(or any Transferee) or the Administrative Agent or the Collateral Agent to make
available any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 3.2 CHANGE IN CIRCUMSTANCES.
(a) In the event that there shall hereafter occur any change in
any Governmental Rule which increases or will increase (i) the cost to any
Agent or any Lender of maintaining any reserves or special deposits against the
LIBOR Advances or (ii) any other cost of any Agent or any Lender of complying
with any law, regulation or condition with respect to the LIBOR Advances, and
the result of any of the foregoing is or will be to increase the cost to any
Agent or any Lender (each such affected party being referred to as an "Affected
Party") of making or maintaining such Affected Party's LIBOR Advances or to
reduce the amount of any payment (whether of principal, interest or otherwise)
receivable by the Affected Party hereunder, then upon receipt of a request from
the Affected Party, the Company shall pay or reimburse to the Affected Party,
such amount as will compensate the Affected Party for such additional cost or
reduction of payment; provided that the Company shall only be liable for such
costs applicable to LIBOR Advances then outstanding. Amounts payable hereunder
shall be due three (3) days after invoice therefor.
(b) The protection of subsection 3.2(a) hereof shall apply to
voluntary compliance by the Agents and the Lenders with restraints, guidelines
or policies not having the force of law and shall apply if any Agent or any
Lender shall comply with any law, regulation or condition irrespective of any
possible contention of invalidity or non-applicability thereof.
(c) The Affected Party will promptly (but in no event later than
forty-five (45) days after actual knowledge of the occurrence of the event
described in subsection 3.2(a) hereof) inform the Company and the
Administrative Agent by facsimile of its intention to claim indemnification
under this Section 3.2. The facsimile statement of the Affected Party as to
the amount sufficient to indemnify the Affected Party against any increased
cost, reduction or payment incurred, suffered or made by the Affected Party
supported by the computations made by the Affected Party in arriving at such
figure, shall, in the absence of manifest error, be conclusive as to the amount
thereof and binding on Company.
A claim made under this Section 3.2 may be made before or after the
end of the Interest Period to which such claim relates and before or after any
repayment of all or part of the Advance to which such Interest Period relates.
An increased cost shall be an increased cost for the purpose of subsection
3.2(a) hereof even if the payment or quantification of such increased cost is
not or cannot be made until after the expiry of any Interest Period to which it
relates.
(d) In the event of any such change or request as is contemplated
by subsection 3.2(a) hereof, the Affected Party will use reasonable efforts to
mitigate the effect or likely effect of such
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change or request by transferring its LIBOR Advances to another jurisdiction or
otherwise; provided, however, that the Affected Party shall be under no
obligation to transfer the LIBOR Advances to another jurisdiction or to take
any other action to mitigate the effect or likely effect of such change or
request if, in the reasonable opinion of the Affected Party, such transfer or
other action could reasonably be expected to have an adverse effect upon the
Affected Party, whether as a result of taxes, credit policies, political
considerations or otherwise; provided, further, that the Company shall
reimburse the Affected Party on demand for all expenses (including, without
limitation, attorney's fees) incurred by the Affected Party in effecting such
transfer and the Affected Party shall have no obligation to effect any such
transfer unless the Affected Party is satisfied that it will not suffer any
adverse consequences as a result of such transfer for which it has not been
indemnified by the Company. If any Affected Party is entitled to reimbursement
under this subsection 3.2(d) for any cost, the Affected Party shall deliver to
the Company a statement of the nature and amount of such cost which statement
shall constitute prima facie evidence as to the amount due to the Affected
Party under this subsection 3.2(d).
(e) If the Company elects (which election shall be irrevocable) by
giving at least two (2) Business Days prior written notice to the Affected
Party, the Company may, without penalty or premium, prepay to any Affected
Party any of such Affected Party's Advances outstanding Advances on any
Interest Payment Date applicable to such Advances with respect to which the
Company has received a claim under this Section 3.2 together with accrued
interest thereon and all other sums due to the Affected Party (including,
without limitation, amounts accrued or due under this Section 3.2).
(f) If any Lender requests compensation under this section 3.2, or
if the Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to this Section
3.2, or if any Lender defaults in its obligation to fund Advances hereunder,
then the Company may, at its sole expense and effort, upon Notice to such
Lender and the Agents, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 13.5), all of its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided, that (i) the
Company shall have received the prior written consent of the Administrative
Agent if such assignee is not a Lender at the time of assignment, which consent
shall not be unreasonably withheld or delayed, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its
Advances, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Company (in the case of all other
amounts), and (iii) in the case of any such assignment resulting from a claim
for compensation under this Section 3.2 or payments required to be made under
Section 3.1, such assignment will result in a reduction in such compensation or
payments. A Lender shall not be required to make any such assignment or
delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Company to require such assignment
or delegation cease to apply.
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SECTION 4 EXPENSES; INDEMNIFICATION; FEES
SECTION 4.1 EXPENSES.
The Company agrees to pay, whether or not any Advance is made hereunder, on
demand: (a) all reasonable out-of-pocket costs and expenses of the Agents
incurred in connection with the negotiation, preparation, execution and
delivery of the Credit Documents (including, without limitation, all costs and
expenses of registering, recording and perfecting the security interests
contemplated by the Security Documents) and the review prior to the Initial
Funding Date of the System Documents, Licenses and Governmental Approvals, if
requested, and any of the other documents, agreements and instruments referred
to in this Agreement or relating to the transactions contemplated hereby; (b)
the reasonable fees and expenses of the Agents' expert consultants; (c) the
reasonable fees and disbursements of ▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇, counsel to the
Agents, and of local counsel to the Agents in each of the Relevant Countries,
incurred in connection with such negotiation, preparation, execution and
delivery of the Credit Documents and the review prior to the Initial Funding
Date of the System Documents, Licenses and Governmental Approvals, if
requested, and any of the other documents, agreements and instruments referred
to in this Agreement or relating to the transactions contemplated hereby; (d)
all reasonable out-of-pocket costs and expenses of the Lenders and the Agents
(including, without limitation, the reasonable fees and disbursements of
counsel) incurred in connection with the negotiation, preparation, execution
and delivery of any amendment or waiver of, or supplement or modification to,
the Credit Documents and not solely requested by the Lenders; (e) all costs and
expenses (including, without limitation, legal fees and disbursements of
counsel) incident to the enforcement, protection or preservation of any right
or claim of the Lenders or the Agents under any of the Credit Documents; and
(f) all transfer, stamp, documentary or other similar taxes, assessments or
charges, if any, upon any of the Credit Documents; provided the Company's
aggregate obligations with respect to clauses (a), (b) and (c) above (and to
the extent incurred prior to the Initial Funding Date, clause (f) above) shall
not exceed $325,000. Fees shall be deemed reasonable to the extent they are
reviewed and approved by the Administrative Agent.
SECTION 4.2 INDEMNIFICATION
(a) Without in any way limiting the applicability of subsection
4.2(b) hereof, and without regard to whether the Company or any other Person
has disclosed any fact to the Agents or the Lenders, the Company hereby
indemnifies and holds harmless the Agents, the Lenders and each of their
respective officers, directors, employees, consultants, advisors and agents
(collectively, the "Indemnitees") from and against any and all actions, suits,
claims, damages, demands, judgments, losses, liabilities, costs or expenses
whatsoever, including, without limitation, reasonable attorneys' fees, which
any Indemnitee may sustain or incur (or which may be claimed against the
Indemnitee by any Person or entity whatsoever) to the extent arising by reason
of or in connection with the construction, ownership or operation of the
Systems or the Telecommunications Businesses or the execution and delivery of,
or payment or failure to pay the Obligations, or the occurrence of an Event of
Default or the pursuit by the Agents, the Lenders or any one of them, of any
legal remedy in connection with an Event of Default or arising out of or in
connection with the Agents' or the Lenders' entering into this Agreement or the
Security
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Documents, or enforcing their remedies hereunder or thereunder; provided that,
the Company shall not be required to indemnify an Indemnitee for any actions,
suits, claims, damages, demands, judgments, losses, liabilities, costs or
expenses to the extent, but only to the extent, caused by the Indemnitee's
willful misconduct or gross negligence. Fees shall be deemed reasonable to the
extent they are reviewed and approved by the Administrative Agent.
(b) Notwithstanding anything in subsection 4.2(a) hereof to the
contrary, and without regard to whether the Company or any other Person has
disclosed any fact to an Indemnitee, the Company agrees to indemnify, defend
and hold the Indemnitees free and harmless from and against any and all
actions, suits, claims, demands, judgments, liabilities, losses, costs, damages
and expenses (including, without limitation, reasonable attorneys' fees and
expenses and other expenses incurred in connection with environmental
compliance and clean-up obligations imposed under any Environmental Laws) any
such Indemnitee may sustain by reason of the assertion against it by any party
of any claim (including, without limitation, claims for indemnification or
contribution and claims by third parties for death, personal injury, illness or
loss of or damage to property or economic loss) in connection with any
Materials of Environmental Concern used, generated, treated, stored, recycled,
disposed of, handled, discharged or otherwise located or released in, on, under
or from the Systems, the Telecommunications Businesses, the Collateral or
related property, except to the extent resulting from such Indemnitee's grossly
negligent act or willful misconduct with respect to such Materials of
Environmental Concern.
(c) Nothing contained in this Section 4.2 shall in any way
diminish any of the Company's rights or the Vendor's rights and obligations
under the iDEN Equipment and Service Agreements or Infocom's or Motorola Credit
Corporation's rights and obligations under the 1997 Infocom Facility or under
the Infocom Bridge Facility.
SECTION 5 GUARANTIES
SECTION 5.1 PARENT GUARANTIES.
(a) The due payment and performance of the Obligations shall be
guaranteed to the Lender Parties by the Third Party Guarantors, in proportion
to their Ownership Percentages of the Borrowing Affiliates and with respect to
the Attributable Borrowings thereof, as reflected on Schedule 5.1 hereto, by
the execution and delivery to the Collateral Agent by the Third Party
Guarantors of guaranties in the form of Exhibit D-1 hereto (together with all
other guaranties heretofore or hereafter executed by a Third Party Guarantor in
favor of the Collateral Agent, hereinafter referred to individually as a "Third
Party Guaranty"; and collectively, the "Third Party Guaranties"). To the
extent additional Third Party Guaranties are executed as a result of the
issuance of options, securities, shares or other equity interests pursuant to
Section 9.7, the proportionate guaranty obligations of the Third Party
Guarantors with respect to the relevant Borrowing Affiliate immediately prior
to such issuance shall be reduced on percentage and absolute amount bases so
that after giving effect thereto, each such Third Party Guarantor's (including
the new Third Party Guarantor) maximum guaranty liability shall equal the
Attributable Borrowing Sublimit (or, if less, the Attributable Borrowings of
such Borrowing Affiliate outstanding from time to time) times its Ownership
Percentage of such Borrowing Affiliate
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relative to the other Third Party Guarantors for such Borrowing Affiliate. For
example, assuming arguendo that Nextel Peru initially had four related Third
Party Guarantors each of which owned 25 shares of the equity of Nextel Peru
(out of a total of 100 shares issued and outstanding) and there was a
subsequent issuance to a new, fifth Third Party Guarantee of 50 new shares of
Nextel Peru equity, each of the original Third Party Guarantors' guaranty
exposure would reduce to 25/150ths (from 25/100ths) of Nextel Peru's
Attributable Borrowing Sublimit and the new, fifth Third Party Guarantor's
guaranty exposure would equal 50/150ths of Nextel Peru's Attributable Borrowing
Sublimit.
(b) The due payment and performance of the Obligations shall be
guaranteed to the Lender Parties by the Affiliated Parent Guarantors, by the
execution and delivery to the Collateral Agent, simultaneously with the
execution and delivery of this Agreement, by the Affiliated Parent Guarantors
of guaranties in the form of Exhibit D-2 hereto (together with all other
guaranties heretofore or hereafter executed by an Affiliated Parent Guarantor
in favor of the Collateral Agent, hereinafter referred to individually as a
"Affiliated Parent Guaranty"; and collectively, the "Affiliated Parent
Guaranties").
SECTION 5.2 BORROWING AFFILIATE GUARANTIES.
The due payment and performance of the Obligations shall be guaranteed to
the Lender Parties by each Borrowing Affiliate, by the execution and delivery
to the Collateral Agent, simultaneously with the execution and delivery of this
Agreement, by each Borrowing Affiliate of a guaranty in the form of Exhibit E
hereto (as hereinafter referred to individually as the "Borrowing Affiliate
Guaranty"; and collectively the "Borrowing Affiliate Guaranties"); provided
that in all cases except for Nextel Mexico, the maximum amount of obligations
guaranteed by the Borrowing Affiliate Guaranties at any time shall be limited
with respect to each Borrowing Affiliate to such Borrowing Affiliate's unpaid
obligations in respect of its related Attributable Borrowings at such time (or
if a continuing Event of Default exists, at the most recent time during which
no Default or Event of Default existed). Nextel Mexico's obligations in
respect of its Borrowing Affiliate Guaranty shall include the due payment and
performance of all Obligations.
SECTION 6 SECURITY
SECTION 6.1 SECURITY.
(a) In order to secure the due payment and performance by the
Company of the Obligations, simultaneously with the execution and delivery of
this Agreement:
(i) The Company shall:
(A) Grant to the Collateral Agent (for the
benefit of the Lender Parties) a Lien on and pledge with the
Collateral Agent, all of the issued and outstanding quotas, shares or
other forms or evidences of ownership owned by it (whether now owned
or hereafter acquired), as the case may be, of each Parent Guarantor,
each Borrowing
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Affiliate and ▇▇▇▇▇, and all Indebtedness owing by any Borrowing
Affiliate, any Subsidiary of a Borrowing Affiliate or any Borrowing
Affiliate Owner (as defined in the Company Pledge Agreement) to the
Company however evidenced together with all related rights,
agreements, documents and notes (including, without limitation, the
Borrowing Affiliate Notes and in all cases whether then owned or
thereafter acquired) by the execution and delivery to the Collateral
Agent of a Pledge Agreement in the form of Exhibit F hereto (the
"Company Pledge Agreement") and ▇▇▇▇▇ ▇ ▇▇▇▇ on and pledge certain
cash deposit accounts by executing and delivering to the Collateral
Agent a Security Deposit Agreement in the form of Exhibit M hereto
(the "Company Security Deposit Agreement") and execution and delivery
of all related documents necessary to give effect thereto; and
(B) Execute and deliver or cause to be executed
and delivered such other agreements, instruments and documents as the
Collateral Agent may reasonably require in order to effect the
purposes of the Company Pledge Agreement, the Company Security Deposit
Agreement, this subsection 6.1(a) and this Agreement.
(b) In order to secure the due payment and performance by each
Parent Guarantor of all of the Indebtedness, liabilities and obligations of
such Parent Guarantor and, in the case of Affiliated Parent Guarantors, the
Company, to the Lender Parties, whether now existing or hereafter arising,
whether or not currently contemplated, including, without limitation, those
arising under its Parent Guaranty and, in the case of the Affiliated Parent
Guarantors, this Master Equipment Financing Agreement, simultaneously with the
execution and delivery of this Agreement, as a condition precedent to the
initial Advance (subject to the proviso at the end of this subsection 6.1(b)),
each Parent Guarantor shall have:
(i) In the case of each of the Third Party Guarantors,
granted to the Collateral Agent (for the benefit of the Lender Parties)
a Lien on and pledge with the Collateral Agent, all of the issued and
outstanding quotas, shares or other forms or evidences of direct or
indirect ownership owned by it (whether now owned or hereafter
acquire), as the case may be, of the Borrowing Affiliates, and all
Indebtedness owing by the Borrowing Affiliates to such Third Party
Guarantor however evidenced together with all related rights,
agreements, documents and notes (in all cases whether then owned or
thereafter acquired), by the execution and delivery to the Collateral
Agent of a Pledge Agreement in the form of Exhibit G hereto and the
execution and delivery of all related documents necessary to give
effect thereto (each a "Third Party Pledge Agreement");
(ii) In the case of each of the Affiliated Parent
Guarantors, granted to the Collateral Agent (for the benefit of the
Lender Parties) a Lien on and pledge with the Collateral Agent, all of
the issued and outstanding quotas, shares or other forms or evidences
of direct or indirect ownership owned by it (whether now owned or
hereafter acquired), as the case may be, of the Parent Guarantors and
the Borrowing Affiliates, and all Indebtedness owing by the Parent
Guarantors and the Borrowing Affiliates to such Affiliated Parent
Guarantor however evidenced together with all related rights,
agreements, documents and notes (in all cases whether then owned or
thereafter
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acquired), by the execution and delivery to the Collateral Agent of a
Pledge Agreement in the form of Exhibit H hereto and the execution and
delivery of all related documents necessary to give effect thereto
(each an "Affiliated Parent Pledge Agreement"); and
(iii) Executed and delivered, or cause to be
executed and delivered, such other agreements, instruments and
documents as the Collateral Agent may reasonably require in order to
effect the purposes of the Parent Guaranties, the Pledge Agreements,
this subsection 6.1(b) and this Agreement;
provided, the execution of a Third Party Pledge Agreement shall only be a
condition precedent for Advances which consist of Attributable Borrowings with
respect to the Borrowing Affiliate in which the relevant Third Party Guarantor
owns a direct or indirect equity interest.
(c) In order to secure the due payment and performance by each
Borrowing Affiliate of all of the Indebtedness, liabilities and obligations of
such Borrowing Affiliate and, in the case of Nextel Mexico, of the Company, to
the Lender Parties, whether now existing or hereafter arising, whether or not
currently contemplated, including, without limitation, those arising under its
Borrowing Affiliate Guaranty and, in the case of Nextel Mexico, those arising
under this Master Equipment Financing Agreement, simultaneously with the
execution and delivery of this Agreement, as a condition precedent to the
initial Advance (subject to the proviso at the end of this subsection 6.1(c)),
each Borrowing Affiliate shall have:
(i) Granted to the Collateral Agent (for the
benefit of the Lender Parties) a Lien on and pledge with the
Collateral Agent, all of the issued and outstanding quotas, shares or
other forms or evidences of direct or indirect ownership owned by it
(whether now owned or hereafter acquired), as the case may be, of each
Person in which such Borrowing Affiliate owns a direct or indirect
equity interest, and all Indebtedness owing by the Company, any Parent
Guarantor, any other Borrowing Affiliates or any such Person in which
it owns a direct or indirect equity interest to such Borrowing
Affiliate however evidenced together with all related rights,
agreements, documents and notes (in all cases whether then owned or
thereafter acquired), by the execution and delivery to the Collateral
Agent of a Pledge Agreement in the form of Exhibit I hereto and the
execution and delivery of all related documents necessary to give
effect thereto (each a "Borrowing Affiliate Pledge Agreement"); and
(ii) Executed and delivered, or cause to be
executed and delivered, such other agreements, instruments and
documents as the Collateral Agent may reasonably require in order to
effect the purposes ofthe Parent Guaranties, the Pledge Agreements,
this subsection 6.1(c) and this Agreement;
provided, the execution of a Borrowing Affiliate Pledge by any Borrowing
Affiliate other than Nextel Mexico shall only be a condition precedent for
Advances which consist of Attributable Borrowings with respect to such
Borrowing Affiliate.
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(d) In order to secure the due payment and performance by the Company
and Infocom in respect of Attributable Borrowings for Infocom, on or prior to
the first Advance of such Attributable Borrowings, the Company and Infocom
shall have executed and delivered, or cause to be executed and delivered, such
other agreements, instruments and documents (including, without limitation,
opinions of local and foreign counsel) as the Collateral Agent may reasonably
require in order to effect the purposes of this subsection 6.1(d) and this
Agreement.
SECTION 7 REPRESENTATIONS AND WARRANTIES
The Company makes the representations and warranties attributed to it,
as an Affiliated Credit Party or Credit Party, as the case may be, in this
Section 7 and the Company makes, on behalf of the Affiliated Credit Parties,
the representations and warranties attributable to such Affiliated Credit
Party, as an Affiliated Credit Party, or Credit Party, as the case may be, in
this Section 7 and the Company makes, on behalf of the Third Party Guarantors,
the representations and warranties attributable to such Third Party Guarantors,
as Credit Parties, in this Section 7. Where a representation and warranty is
not attributed to any particular Affiliated Credit Party or Credit Party; it
shall be deemed made by and on behalf of the Company, each Affiliated Parent
Guarantor, each Borrowing Affiliate and each Third Party Guarantor each as to
themselves, it being understood that the Company shall, subject to the
limitations on remedies set forth in Section 11.2(l), be deemed to be making
such representations and warranties on behalf of all such Persons.
SECTION 7.1 ORGANIZATION.
(a) Each Affiliated Credit Party that is not a natural Person is duly
organized and validly existing under the laws of its state or jurisdiction of
organization. Schedule 7.1(a) hereto accurately and completely lists, as to
such Affiliated Credit Party: (i) the jurisdiction of incorporation or
organization of each such entity, and the type of legal entity that each of
them is, (ii) as to each Affiliated Credit Party that is a corporation, the
classes and number of authorized and outstanding shares of capital stock of
each such corporation, and the owners of such outstanding shares of capital
stock, and (iii) as to each Affiliated Credit Party that is a legal entity
other than a corporation (but not a natural Person), the type and amount of
equity interests authorized and outstanding of each such entity, and the owners
of such equity interests. All of the shares, quota shares or other equity
interests of the Affiliated Credit Parties that are issued and outstanding have
been duly and validly issued and are fully paid and non-assessable, and are
owned by the Persons referred to on Schedule 7.1(a) hereto, free and clear of
any Lien except for Permitted Liens. Except as set forth on Schedule 7.1(a)
hereto, there are no outstanding warrants, options, contracts or commitments of
any kind entitling any Person to purchase or otherwise acquire any shares of
capital stock or other equity interests of any Affiliated Credit Party nor are
there outstanding any securities that are convertible into or exchangeable for
any shares of capital stock or other equity interests of such Affiliated Credit
Party. Except as set forth on Schedule 7.1(a) hereto, no Affiliated Credit
Party (other than the Company) has any Subsidiaries. The Company has no
Subsidiaries other than those listed on Schedule 7.1(a) hereof and after the
Closing Date any additional Subsidiaries to the extent permitted hereunder.
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(b) Each Affiliated Credit Party is in good standing (to the extent
that such jurisdiction recognizes the legal concept of good standing) in its
state or jurisdiction of organization and in each state or jurisdiction in
which it is qualified to do business. There are no jurisdictions other than as
set forth on Schedule 7.1(b) hereto in which the character of the properties
owned or proposed to be owned by any Affiliated Credit Party or in which the
transaction of the business of any Affiliated Credit Party as now conducted or
as proposed to be conducted requires or will require such Affiliated Credit
Party to qualify to do business and as to which failure so to qualify could
reasonably be expected to have a Material Adverse Effect.
SECTION 7.2 POWER; AUTHORITY.
(a) Each Credit Party has full legal right, power and authority to
carry on its respective present business, to own its respective properties and
assets, to incur the obligations thereunder, to execute and deliver each
Operative Document to which it is a party, and, to the extent it is a party
thereto, to perform and observe the terms and conditions thereof except, solely
with respect to the Operative Documents which are not Credit Documents, to the
extent the failure to have such right, power or authority could not reasonably
be expected to have a Material Adverse Effect.
(b) All appropriate and necessary corporate, partnership and legal
actions have been taken by each Credit Party to authorize the execution,
delivery and performance of each Operative Document to which it is a party, and
each Credit Party is duly authorized to execute and deliver and to perform its
obligations under each of the Operative Documents to which it is a party
except, solely with respect to the Operative Documents which are not Credit
Documents, to the extent the failure to take such action or to have such due
authorization could not reasonably be expected to have a Material Adverse
Effect.
SECTION 7.3 GOVERNMENTAL APPROVALS; LICENSES.
(a) All Governmental Approvals under all applicable Governmental Rules
in connection with (i) the due execution, delivery and performance by each
Credit Party of its obligations, and the exercise of its rights, under the
Operative Documents, (ii) the construction, completion, ownership, operation
and maintenance of the Systems in the Major Market Areas (except such
Governmental Approvals which are ministerial in nature or which the failure to
obtain such could not reasonably be expected to have a Material Adverse
Effect), (iii) the Telecommunications Businesses currently engaged in, and (iv)
the grant by the Credit Parties of the assignments and security interests
granted by the Security Documents and the validity and enforceability thereof
and for the perfection of and the exercise by the Lender Parties of their
respective rights and remedies thereunder, are, in all cases, identified on
Schedule 7.3(a) hereto (which Schedule shall (A) be true, correct and complete
as of the date of this Agreement and as of the date(s) that annual financial
statements are delivered pursuant to Section 8.2, and (B) set forth: the
applicant; the issuing governmental agency (or agencies); the date of
application (or, if not yet applied for, when it will be necessary to obtain
such Governmental Approval to achieve the Approved Business Plans and the date
the application is expected to be submitted); the term
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of the expected (or granted) approval, and if not yet granted, when approval is
necessary to achieve the Approved Business Plans and when approval is expected;
any appeal periods which are pending; and a brief description of the matters
governed by such approval); provided, Schedule 7.3(a) shall not list any
Governmental Approval with respect to clauses (ii) and (iii) above to the
extent the failure to obtain such Governmental Approval could not reasonably be
expected to have a Material Adverse Effect. All Governmental Approvals
identified on Part I of each of Sections A and B of Schedule 7.3(a) hereto have
been duly obtained on or before the Closing Date and are final, in full force
and effect and all administrative appeal periods with respect thereto have
terminated and are all that are necessary to conduct the business as presently
being conducted. Those Governmental Approvals set forth on Part II of each of
Sections A and B of Schedule 7.3(a) are expected to be obtained in due course.
Except to the extent set forth on Schedule 7.3(a), there is no proceeding
pending or (to the Affiliated Credit Parties' knowledge after due inquiry)
threatened, that could reasonably be expected to rescind, terminate, modify or
suspend any Governmental Approval listed in Part II of Sections A and B of
Schedule 7.3(a) hereto, and no such disclosed matter could reasonably be
expected to have a Material Adverse Effect. None of the Affiliated Credit
Parties, respectively, have any knowledge that the information set forth in
each application submitted by the relevant Credit Party in connection with each
such Governmental Approval is inaccurate or incomplete in all respects as of
the date submitted and as of the Closing Date and true and complete copies of
such Governmental Approvals have been (to the extent requested by the
Administrative Agent) delivered to the Administrative Agent. Except for those
Governmental Approvals set forth on Schedule 7.3(a) hereto and the Licenses set
forth on Schedule 7.3(b) hereto, no other consent, approval or authorization
of, or declaration or filing with, any other Person is required in connection
with (i) the construction, ownership, operation or maintenance by the Company
or the Borrowing Affiliates of the Systems in the Major Market Areas (except
such Governmental Approvals which are ministerial in nature or which the
failure to obtain such Governmental Approvals or Licenses could not reasonably
be expected to have a Material Adverse Effect), (ii) the Telecommunications
Businesses currently engaged in, or (iii) as to such Affiliated Credit Party
and, to the Affiliated Credit Parties' knowledge after due inquiry, as to
Persons affiliated with any Credit Party, the execution, delivery, performance,
validity or enforceability of this Agreement or any other Operative Document.
Part II of Schedule 7.3(a) hereto sets forth the Governmental Approvals
necessary for the grant by the Credit Parties of the assignments and security
interests granted by the Security Documents and the validity and enforceability
thereof and for the perfection of and the exercise by the Lender Parties of
their respective rights and remedies all of which will be obtained by the
registration or filing of the Security Documents in the locations indicated on
Schedule 7.3 hereto.
(b) Schedule 7.3(b) sets forth all Licenses. Except to the extent
expressly set forth in Schedule 7.3(b) hereof, each such License is in full
force and effect. Those Licenses set forth in Part II of Schedule 7.3(b)
hereof are expected to be obtained in due course, except to the extent set
forth therein. No default has occurred which is continuing under or in respect
of any of the provisions of any License except for defaults resulting from the
failure to meet certain milestones set forth in such Licenses which failure
could not reasonably be expected to have a Material Adverse Effect. No
authorization, approval, application, filing, registration, consent or other
action of any local, state or federal authority is required to enable the
Company or any Borrowing
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Affiliate to operate under its respective License (except such Licenses which
are ministerial in nature or which the failure to obtain such License could not
reasonably be expected to have a Material Adverse Effect with respect to the
Company or the Borrowing Affiliates taken as a whole to achieve the Approved
Business Plans in the Major Market Areas) other than those filings made and
referred to on Schedule 7.3(b) hereto. Except to the extent set forth on
Schedule 7.3(b), there is no proceeding pending, or to the knowledge of the
Affiliated Credit Parties after due inquiry, threatened, which could rescind,
terminate, modify or suspend any such approval, filing, registration or
consent, and no such disclosed proceeding could reasonably be expected to have
a Material Adverse Effect. None of the Affiliated Credit Parties have any
knowledge that the information set forth in each application submitted by any
Credit Party in connection with each such approval, filing, registration or
consent is inaccurate or incomplete in any material respect.
SECTION 7.4 EXECUTION, ENFORCEABILITY, VIOLATION OF LAW AND AGREEMENTS.
Each of the Operative Documents to which a Credit Party is a party has
been duly executed and delivered by such Credit Party and constitutes, the
legal, valid and binding contract, agreement and obligation of such Credit
Party enforceable in accordance with its terms, except, solely with respect to
the Operative Documents which are not Credit Documents, to the extent the
failure to have such due execution and delivery or such legality, validity and
binding nature could not reasonably be expected to have a Material Adverse
Effect and except as (x) the enforceability of the Operative Documents may be
limited by bankruptcy, insolvency or similar laws relating or affecting
creditors' rights generally, (y) the availability of equitable remedies, and
(z) rights to indemnification and contribution as they may be limited by public
policy; provided, however, that such exceptions shall not materially interfere
with the practical realization of the benefits of the Security Documents or the
Liens created thereby, except for: (i) possible delay, (ii) situations that may
arise under Chapter 11 of the Bankruptcy Code and comparable statutes of the
Relevant Countries, and (iii) equitable orders of the Bankruptcy Court and
comparable courts in the Relevant Countries. The execution, delivery and
performance of the terms of each of the Operative Documents by each Credit
Party and the payment by such Credit Party of all amounts due on the dates and
in the currency provided for therein (i) will not, except as is set forth on
Schedule 7.4 hereto, violate or contravene any Governmental Rule or other
provision of law or other governmental directive, whether or not having the
force of law, which is applicable to such Credit Party, which violation or
contravention thereof individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect; (ii) will not, except as is set
forth on Schedule 7.4 hereto, contravene any governmental guideline or policy
statement applicable to such Credit Party but not having the force of law,
which contravention thereof individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect; (iii) will not conflict with,
violate or breach the Articles of Incorporation or By-laws (or any other
organizational documents), as the case may be, of such Credit Party, except,
solely with respect to the Operative Documents which are not Credit Documents,
to the extent such conflict, violation or breach could not reasonably be
expected to have a Material Adverse Effect; (iv) will not conflict with or
result in the breach of any provision of, or result in the creation or
imposition of any Lien or other preferential arrangement under, any other
indenture, agreement, mortgage, contract or other undertaking, or instrument to
which such Credit Party is a party or by which it or any of its properties or
assets is bound other than the Credit Documents, except, solely with
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respect to the Operative Documents which are not Credit Documents, to the
extent such conflict or breach or creation or imposition could not reasonably
be expected to have a Material Adverse Effect; (v) will not constitute a
default or an event that, with the giving of notice or the passing of time, or
both, would constitute a default under any such agreement or instrument,
except, solely with respect to the Operative Documents which are not Credit
Documents, to the extent such default could not reasonably be expected to have
a Material Adverse Effect; and (vi) except for the approvals, consents and
registrations described in subsection 10.1(e) hereof (all those described in
clause (iv) thereof have been obtained on or prior to the Initial Funding Date
or prior to the date an Attributable Borrowing is made with respect to the
Relevant Borrowing Affiliate (if other than Nextel Mexico), as applicable, and
are and will remain in full force and effect and no further action will be
needed with respect thereto) do not require any governmental consent,
registration or approval, except, solely with respect to the Operative
Documents which are not Credit Documents, to the extent such requirement and
the failure to adhere thereto could not reasonably be expected to have a
Material Adverse Effect. To the extent the representations and warranties
contained in this Section 7.4 relate to any law, Governmental Rule,
governmental directive or other matter related to an "employee benefit plan",
within the meaning of Section 3(3) of ERISA, or a "plan", within the meaning of
Section 4975(e)(1) of the Code, such representations and warranties are made
assuming the truth of the representation, warranty and covenant contained in
the last sentence of subsection 2.1(a).
SECTION 7.5 FINANCIAL STATEMENTS; BUSINESS PLAN.
(a) The consolidated audited balance sheets of the Company and its
Subsidiaries and consolidated statements of operations, changes in
stockholders' equity and cash flows of the Company and its Subsidiaries each as
of December 31, 1997, and all other information and data heretofore furnished
by the Company, or any agent of the Company on behalf of the Company to the
Administrative Agent, including, the quarterly (each as at March 31, 1998, June
30, 1998 and September 30, 1998) consolidated balance sheets and consolidated
statements of operations, changes in stockholders' equity and cash flows, have
been prepared in accordance with GAAP and fairly present the condition and
results of operations of the Company and its Subsidiaries as of such dates or
for such periods. Except for those matters (i) set forth in the Company's SEC
Reports filed on or prior to the Closing Date or (ii) as set forth on Schedule
7.5, since December 31, 1997, no event that could reasonably be expected to
have a Material Adverse Effect with respect to any Credit Party has occurred.
None of the Company or any of its Subsidiaries has contingent obligations,
liabilities for taxes or other outstanding financial obligations which are
material either individually or in the aggregates.
(b) The consolidated audited balance sheets of each of the
Borrowing Affiliates and their respective Subsidiaries and consolidated
statements of operations, stockholders' equity and cash flows of each of the
Borrowing Affiliates and their respective Subsidiaries, each as at December 31,
1997, have been prepared in accordance with GAAP (other than with respect to
J-Com) and fairly represent in all material respects the condition and results
of operations of such Borrowing Affiliate and its Subsidiaries as of such dates
or for such periods. All information and data heretofore furnished by each
Borrowing Affiliate, or any agent of such Borrowing Affiliate on behalf of such
Borrowing Affiliate, to the Administrative Agent are complete and correct in
all
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material respects. None of the Borrowing Affiliates or any of their respective
Subsidiaries have contingent obligations, liabilities for taxes or other
outstanding financial obligations which are material either individually or in
the aggregate, except as disclosed in the above-referenced financials or on
Schedule 7.5 hereto.
(c) The financial and business projections for each of the Systems
contained in the Approved Business Plans submitted to the Administrative Agent
were prepared in good faith and based upon assumptions believed to be
reasonable by the Company and the Related Borrowing Affiliate (as of the dates
of such Approved Business Plans). The Approved Business Plans have been
accompanied by a summary of the key assumptions utilized in preparing the
Approved Business Plans.
SECTION 7.6 TAXES.
Each Affiliated Credit Party has timely paid all required taxes, duties,
fees and assessments of any kind with respect to, or in connection with, its
respective income, business, properties and certificates of stock and each is
current with all the tax returns required to be filed by it except such taxes,
if any, as are being contested in good faith and by proper proceedings and as
to which either (x) adequate reserves have been established in accordance with
GAAP on the books of such Affiliated Credit Party or (y) the aggregate amount
of such taxes, duties, fees and assessments is less than $5,000,000 and the
non-payment of which would not reasonably be expected to have a Material
Adverse Effect under such circumstances. There are no tax liens against any of
the Affiliated Credit Parties or any of their respective properties. No
Affiliated Credit Party is party to any action or proceeding by any
Governmental Authority for the assessment or collection of taxes, nor has any
claim for assessment or collection of taxes been asserted against any of the
Affiliated Credit Parties or any of their respective properties.
SECTION 7.7 PROPERTIES.
All property and assets owned by each Affiliated Credit Party, including,
without limitation, contracts, Governmental Approvals currently held by such
Affiliated Credit Party, entitlements and other rights, titles or interest of
such Affiliated Credit Party relating or incidental to the Systems or the
Telecommunications Businesses are owned by it free and clear of all Liens other
than Permitted Liens. Each Affiliated Credit Party has good title in and to
all of the property now owned by it, and with respect to leased property a
valid and subsisting leasehold estate in and to such property, in each case
free and clear of all Liens other than Permitted Liens. No mortgage or
financing statement or other instrument or recordation or registration covering
all or any part of (i) the assets or property of any Affiliated Credit Party
(including, without limitation, the Collateral) or (ii) to the knowledge of the
Company after reasonable inquiry, the Collateral pledged by the Third Party
Guarantors, is on file in any recording office other than in connection with
the Liens granted under the Security Documents or in connection with Permitted
Liens or as in existence on the date hereof and disclosed on Schedule 7.7. Each
Affiliated Credit Party has been granted (or reasonably expects to be granted)
and has good leasehold right or title reasonably expects to have a good
leasehold right or title) to all material easements, rights-of-way, licenses
and other real property rights reasonably required for access to, and
construction or
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operation of, the related System and the related Telecommunications Business,
free and clear of any Lien other than Permitted Liens.
SECTION 7.8 COMPLIANCE WITH LAWS.
(a) Each Affiliated Credit Party complies and has complied in all
material respects with all applicable Governmental Rules, except to the extent
such non-compliance cannot, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. To the extent the representations
and warranties contained in the preceding sentence relate to any Governmental
Rule related to an "employee benefit plan", within the meaning, of Section 3(3)
of ERISA, or a "plan", within the meaning of Section 4975(e)(1) of the Code,
such representations and warranties are made assuming the truth of the
representation, warranty and covenant contained in the last sentence of
subsection 2.1(a). Except as previously disclosed to the Administrative Agent
and the Lenders in writing or disclosed in the Company's SEC Reports, no
Affiliated Credit Party has received any communication of which the Company has
not made the Administrative Agent and the Lenders aware in writing promptly
after the Company becoming aware thereof, from a Governmental Authority that
alleges that such Affiliated Credit Party is not in full compliance in all
material respects with all applicable Governmental Rules, and to the Affiliated
Credit Parties' knowledge, after due inquiry, there are no circumstances that
may prevent or interfere with such full compliance in all material respects in
the future.
(b) Each Affiliated Credit Party is in compliance in all material
respects with all applicable laws relating, to the employment of labor, wages,
hours and conditions of work, collective bargaining, withholding tax and the
payment of social security contributions and other labor-related taxes, except
to the extent any non-compliances cannot, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect. No Affiliated Credit
Party is liable for any arrears in wages, compensation, benefits, premiums,
taxes or penalties for failure to comply with any of the foregoing laws except
to the extent that the same are being contested in good faith and by proper
proceedings and as to which either (x) adequate reserves have been established
in accordance with GAAP on the books of such Affiliated Credit Party or (y)
nonpayment of which could not have a Material Adverse Effect under such
circumstances and could not result in an aggregate liability in excess of
$5,000,000. To the extent the representations and warranties contained in this
Section 7.8(b) relate to any law related to an "employee benefit plan", within
the meaning of Section 3(3) of ERISA, or a "plan", within the meaning of
Section 4975(e)(1) of the Code, such representations and warranties are made
assuring the truth of the representation, warranty and covenant contained in
the last sentence of subsection 2.1(a).
(c) The operations of each Affiliated Credit Party complies in all
material aspects with all applicable Environmental Laws.
(d) There are no claims, investigations, litigation, administrative
proceedings, whether pending or, to the knowledge of the Company, threatened,
or judgments or orders, relating to any Materials of Environmental Concern or
alleging, the violation of any Environmental Laws
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(collectively "Environmental Matters") relating in any way to any property or
to the operations of such Affiliated Credit Party.
(e) No Materials of Environmental Concern are presently stored or
otherwise located on, in or under real estate owned or leased by any Affiliated
Credit Party except in compliance in all material respects with all
Environmental Laws, and, no part of such real estate or adjacent parcels of
real estate, including, without limitation, the groundwater located thereon, is
to the knowledge of the Affiliated Credit Parties after due inquiry, presently
contaminated by any Materials of Environmental Concern in any material respect.
(f) No Affiliated Credit Party has any material contingent liability
in connection with any release of any Materials of Environmental Concern into
the environment.
SECTION 7.9 INTELLECTUAL PROPERTY.
Each of the Affiliated Credit Parties owns, or is licensed to use, all
trademarks, tradenames, copyrights, patents and other intellectual property
material to its business (the "Intellectual Property"), and the use thereof by
the Affiliated Credit Parties does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
All material fees which are due in respect of the Intellectual Property have
been paid. All Intellectual Property owned by each Affiliated Credit Party,
together with any pending applications therefor is listed on Schedule 7.9
hereto.
SECTION 7.10 BURDENSOME DOCUMENTS; AGREEMENTS WITH AFFILIATES; OTHER
AGREEMENTS.
(a) Except as set forth on Schedule 7.10, no Affiliated Credit
Party is a party to or bound by, nor are any of the properties or assets owned
by any Affiliated Credit Party used in the conduct of its businesses affected
by, any agreement, bond, note, indenture, order or judgment, including, without
limitation, any of the foregoing relating to any Environmental Matter, that a
violation thereof could reasonably be expected to have a Material Adverse
Effect.
(b) No Affiliated Credit Party is a party to any agreement with any
Arm's-Length Affiliate or any of the officers, directors or stockholders of
such Arm's-Length Affiliate except as set forth on Schedule 7.10 (including,
without limitation, the management agreements listed thereon) and except for
agreements (i) with any Restricted Subsidiary of the Company, or (ii) made on
commercially reasonable or more advantageous terms to such Affiliated Credit
Party.
(c) No Affiliated Credit Party is a party to nor is any of its
respective property subject to or bound by any lease, forward purchase contract
or futures contract, covenant not to compete, or other agreement which
restricts such Affiliated Credit Party's ability to conduct its respective
business as presently conducted in such a way as could reasonably be expected
to have a Material Adverse Effect or otherwise could reasonably be expected to
have a Material Adverse Effect.
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(d) No material purchase or other commitment of any Affiliated
Credit Party is in excess of the normal ordinary and usual requirements of its
respective business, or was made at any price in excess of the then current
market price, or contains terms and conditions more onerous than those usual
and customary in the applicable industry.
SECTION 7.11 SECURITY DOCUMENTS.
The Security Documents create in favor of the Collateral Agent (for the
benefit of the Lender Parties) legal, valid and, upon proper recording,
registration or filing for those documents or instruments that require such
filing registration or recording, and possession for those security interests
perfected by possession, perfected security interests in the Collateral. All
filings, recordations, registrations and other actions necessary to perfect and
protect such security interests have been duly effected or taken, and a
perfected Lien on the Collateral, prior and superior to all other Liens (except
for Permitted Liens) has been created in favor of the Collateral Agent.
SECTION 7.12 JUDGMENTS, ACTIONS, PROCEEDINGS.
Except as set forth on Schedule 7.12 hereto, there are no actions, suits
or proceedings by or before any arbitrator or Governmental Authority pending
against or, to the knowledge of any of the Credit Parties after due inquiry,
threatened against or affecting any of the Credit Parties (i) as to which an
adverse determination could reasonably be expected and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
have a Material Adverse Effect or (ii) that involve any of the Credit Documents
or Licenses or the transactions contemplated thereby nor is there any
reasonable basis for the institution of any such action or proceeding.
SECTION 7.13 NO DEFAULTS.
No Default or Event of Default has occurred and is continuing. No Credit
Party is in default under or with respect to any agreement, lease or instrument
(including, without limitation, the System Documents) to which any Credit Party
is a party or by which it or its properties or assets may be bound which could
reasonably be expected to have a Material Adverse Effect.
SECTION 7.14 STRIKES.
There are no strikes, work stoppages or controversies pending or
threatened between any Affiliated Credit Party and its employees, other than
employee grievances arising in the ordinary course of business which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 7.15 [RESERVED].
SECTION 7.16 [RESERVED] .
SECTION 7.17 ACCURACY OF INFORMATION.
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Each of the foregoing representations and warranties attributed to the
Credit Parties (or any group or one of them) and all information heretofore
furnished by the Credit Parties (or any group or one of them) to the Lender
Parties (or any group or one of them) for purposes of or in connection with
this Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Credit Parties (or any group or one of
them) to the Lender Parties (or any group or one of them) will be, true and
accurate in all material respects on the date of this Agreement and as of the
date on which such information is stated or certified; provided that, with
respect to projected financial information the Affiliated Credit Parties
represent only that such information was prepared in good faith and based upon
assumptions believed to be reasonable by such Affiliated Credit Party of
performance for the forecast periods. Each of the Credit Parties has disclosed
to the Administrative Agent in writing or in the Company's SEC Reports any and
all facts which have or could reasonably be expected to have a Material Adverse
Effect.
No representation or warranty of Credit Parties (or any group or one of
them) herein, and no certification, document or statement furnished or to be
furnished to Lender Parties (or any group or one of them) contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements of fact contained herein not misleading.
SECTION 7.18 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
Each of the representations and warranties set forth in Section 7 hereof
shall be deemed repeated on the date of each Advance and on the first day of
each Interest Period as fully as if made on each such date with respect to the
circumstances of the relevant Credit Party existing at such time, except that
the representations and warranties set forth in subsections 7.5(a), (b) and (c)
hereof as to the financial statements of the Company and the Borrowing
Affiliates (other than the representation that no Material Adverse Effect has
occurred since December 31, 1997) shall be deemed a reference to the audited
and unaudited financial statements of the Company and the Borrowing Affiliates
most recently delivered to the Administrative Agent pursuant to Sections 8.2
and 8.3 hereof.
SECTION 7.19 ERISA.
(a) Each Plan is operated and administered in all material
respects in accordance with applicable laws including, but not limited to, all
material applicable provisions of ERISA and the Code, and each Affiliated
Credit Party has timely made all requisite premium payments to the PBGC.
(b) No "Reportable Event", as defined in Section 4043, that is
subject to a 30-day notice requirement under Section 4043 of ERISA (e.g., for
which such 30-day notice requirement has not been waived by statute, regulation
or otherwise) in respect of any Plan has occurred, except for any such
Reportable Event as could not reasonably be expected to have a Material Adverse
Effect. No Affiliated Credit Party has received any notice from the PBGC that
any Plan is being involuntarily terminated or from the Secretary of the
Treasury that any partial or full termination of any Plan has occurred and to
the knowledge of the Affiliated Credit Parties, respectively, after due
inquiry, no event shall have occurred, and to the knowledge of the
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Affiliated Credit Parties, respectively, after due inquiry, there shall exist
as of the date hereof no condition or set of circumstances that present a
material risk of the involuntary termination of any Plan where such termination
could reasonably be expected to have a Material Adverse Effect.
(c) No material unpaid or contingent liability to the PBGC has been
or is expected to be incurred by any Affiliated Credit Party (other than for
payment of PBGC premiums in the ordinary course) with respect to any Plan. To
the knowledge of the Affiliated Credit Parties, respectively, after due
inquiry, no event has occurred and to the knowledge of the Affiliated Credit
Parties, respectively, after due inquiry, there exists no condition or set of
circumstances, that presents a material risk of the termination or partial
termination of any Plan that could reasonably be expected to result in a
material liability on the part of any Affiliated Credit Party to the PBGC with
respect to any Plan.
(d) No non-exempt "prohibited transaction" as defined in Section
406 of ERISA or Section 4975 of the Code that could reasonably be expected to
have a Material Adverse Effect has occurred with respect to any Plan.
(e) Each Affiliated Credit Party has made all material required
contributions under the Plans for all periods through and including September
30, 1998, or adequate accruals therefor have been provided for in the financial
statements referred to in subsection 7.5(a) and (b). No material "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA whether or not waived, has occurred with respect to any Plan.
(f) The actuarial value of vested benefits required to be funded by
each Affiliated Credit Party, or with respect to which such Affiliated Credit
Party is liable, under the Plans, determined using the actuarial methods and
assumptions used by the relevant Plan's actuary as of the last valuation date
for which an actuarial valuation was completed to determine such Plan's funded
status, did not as of the last valuation date as of which an actuarial
valuation has been completed, which in the case of any individual Plan was not
earlier than January 1, 1998, exceed the actuarial value of the assets of the
Plans allocable to such vested and non-vested benefits by a material amount.
(g) No Affiliated Credit Party is a participating employer in: (i)
any Plan under which more than one unrelated employer makes contributions as
described in Section 4063 and 4064 of ERISA, or (ii) a multiemployer plan as
defined in Section 4001 (a)(3) of ERISA.
(h) Subject to the first paragraph of Section 7, all references to
an Affiliated Credit Party in this Section 7.20 or in any other Section of this
Agreement relating to ERISA (other than references relating to the knowledge or
awareness of the Company) shall be deemed to refer to such Affiliated Credit
Party and all other entities that are part of a Controlled Group as of the
relevant date.
SECTION 7.20 USE OF PROCEEDS.
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No part of the proceeds received by any Credit Party from the Advances
will be used directly or indirectly for: (a) any purpose other than as is set
forth in Section 2.9 hereof, or (b) the purpose of purchasing or carrying, or
for payment in full or in part of Indebtedness that was incurred for the
purposes of purchasing or carrying, any margin stock (within the meaning of
Regulation U or X of the Board of Governors of the Federal Reserve System).
SECTION 7.21 INVESTMENT COMPANY.
Neither the Company nor any of the Borrowing Affiliates or their
respective Subsidiaries is an "Investment Company" within the meaning of the
Investment Company Act of 1935.
SECTION 8 AFFIRMATIVE COVENANTS
Until termination of the Commitments and payment in full of the
Advances, any interest due thereon and all other amounts due hereunder, and so
long as this Agreement remains in effect, each Credit Party covenants and
agrees that, unless the Required Lenders shall otherwise consent in writing, it
shall comply in all respects with each of the following covenants and
agreements attributed to it.
In addition, the Company agrees to cause each Borrowing Affiliate and
Affiliated Parent Guarantor to comply in all respects with each covenant and
agreement set forth below and attributed to such Affiliated Credit Party. All
references to the Company, the Borrowing Affiliates or the Affiliated Credit
Parties shall, unless expressly stated otherwise, be deemed to include such
Person's Restricted Subsidiaries.
SECTION 8.1 PERFORMANCE OF OBLIGATIONS.
(a) Each of the Credit Parties shall punctually pay all amounts
due by it under each of the Credit Documents at the times, on the dates and in
the places specified therein, and shall timely perform all of its other
obligations, undertakings and covenants under each of the Credit Documents.
(b) Each of the Affiliated Credit Parties shall punctually pay
all its respective Indebtedness and shall perform promptly all its respective
contractual obligations (except those being diligently contested in good faith
by appropriate proceedings) pursuant to agreements to which it is a party or by
which it is bound at all times during the term of this Agreement.
(c) Each of the Credit Parties shall pay and discharge all
taxes, assessments and governmental charges levied upon it or against any of its
respective properties or assets prior to the date after which penalties attach
for failure to pay, except for such taxes, assessments and governmental charges
that are being contested in good faith and so long as such Credit Party has
established adequate reserves therefor on the books of such Credit Party in
accordance with GAAP or as to which the aggregate amount of such taxes,
assessments and governmental charges is less than (i) in the case of any Credit
Party, $5,000,000, and (ii) in the case of the Credit Parties in the aggregate,
$5,000,000, and the nonpayment of which would not reasonably be expected to have
a Material Adverse Effect under the circumstances. Each of the Affiliated
Credit Parties
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shall make timely filings of all tax returns and material governmental reports
required to be filed or submitted by any of them under any applicable laws or
regulations. If any such Person pays any tax or charge as provided herein or
makes any deductions or withholding from amounts paid hereunder, the Company
shall promptly forward to the Administrative Agent official receipts or other
evidence acceptable to the Administrative Agent establishing payment of such
amounts.
SECTION 8.2 ANNUAL FINANCIAL STATEMENTS.
As soon as available, but not later than 120 days after the end of its
fiscal year (i) the Company shall deliver to the Administrative Agent (A) and
if requested, a sufficient number of additional copies for each Lender and the
Administrative Agent of the consolidated annual financial statements of the
Company and the Subsidiaries (including, without limitation, its balance sheet,
statement of income, statement of changes in stockholders' equity and statement
of cash flows and related earnings for such fiscal year, each with related
notes specifying significant accounting practices and their impact on such
financial statements and with related schedules) as at and for the fiscal year
then ended, (B) copies of the Governmental Approvals and Licenses as described
in Section 8.6, and (C) an update of the Security Documents as described in
Section 8.17 and (ii) each Borrowing Affiliate shall deliver to the
Administrative Agent, and if requested, a sufficient number of additional
copies for each Lender and the Administrative Agent of the consolidated annual
financial statements of such Borrowing Affiliate and its subsidiaries
(including, without limitation, its balance sheet, statement of income,
statement of changes in stockholders' equity and statement of cash flows and
related earnings for such fiscal year with related notes specifying significant
accounting practices and their impact on such financial statements and with
related schedules) as at and for the fiscal year then ended, in each case
audited and reported on by Deloitte & Touche LLP or other internationally
recognized independent certified public accountants of recognized standing
selected by the Company or such Borrowing Affiliate, without going concern or
like exception or qualification and without qualification as to scope of such
audit and prepared in accordance with GAAP. In addition, the chief financial
officer of the Company shall deliver a certificate stating that at the date of
such certificate (i) in respect of the Affiliated Credit Parties, no Default or
Event of Default has occurred and is continuing, or if such Default or an Event
of Default has occurred and is continuing, with a reasonably detailed
description thereof and the actions the Company is taking with respect thereto,
and (ii) there is no material litigation, initiated or filed by or against the
Company or the other Affiliated Credit Parties and, except for Permitted Liens,
no Lien against any of the Collateral has been created, voluntarily or by
operation of law, or if there is any such material litigation or Lien, a
description thereof and the actions the Company or any such other Affiliated
Credit Party, as the case may be, is taking with respect thereto. In addition,
the foregoing certificate shall set forth in reasonable detail the calculations
required to establish compliance with the financial covenants set forth in
Section 8.15 hereof.
SECTION 8.3 QUARTERLY FINANCIAL STATEMENTS.
As soon as available but not later than 60 days after the end of each
fiscal quarter occurring within its fiscal year (other than the fourth fiscal
quarter, which will be deemed
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delivered with the financial statements required under Section 8.2), (i) the
Company shall deliver to the Administrative Agent, and if requested, a
sufficient number of additional copies for each Lender and the Administrative
Agent of the consolidated unaudited financial statements of the Company and its
Subsidiaries for such quarterly period (including, without limitation, its
balance sheet, statement of income, statement of changes in stockholders'
equity and statement of cash flows and related earnings, for such quarter)
which shall be certified by the chief financial officer of the Company as
having been prepared in accordance with GAAP, and (ii) each Borrowing Affiliate
shall deliver to the Administrative Agent, and if requested, a sufficient
number of additional copies for each Lender and the Administrative Agent of the
consolidated unaudited financial statements of such Borrowing Affiliate and its
Subsidiaries for such quarterly period (including, without limitation, its
balance sheet, statement of income, statement of changes in stockholders'
equity and statement of cash flows and related earnings, for such quarter)
which shall be certified by the chief financial officer of such Borrowing
Affiliate as having been prepared in accordance with GAAP. In addition, the
chief financial officer of the Company shall deliver a certificate stating that
at the date of such certificate (i) in respect of the Affiliated Credit
Parties, no Default or Event of Default has occurred and is continuing, or if
such Default or an Event of Default has occurred and is continuing, with a
reasonably detailed description thereof and the actions being undertaken by the
Company with respect thereto, and (ii) there is no material litigation,
initiated or filed by or against the Affiliated Credit Parties, and except for
Permitted Liens, no Lien against any of the Collateral has been created,
voluntarily or by operation of law, or if there is any such material litigation
or Lien, a description thereof and the actions the Company or any other such
Affiliated Credit Party as the case may be, is taking with respect thereto. In
addition, the foregoing certificate shall set forth in reasonable detail the
calculations required to establish compliance with the financial covenants set
forth in Section 8.15 hereof.
SECTION 8.4 OTHER INFORMATION.
(a) Promptly upon their becoming available, the Affiliated
Credit Parties shall deliver to the Administrative Agent, copies of all material
notices or material documents (the effect, substance, absence or breach of which
could reasonably be expected to have a Material Adverse Effect) given or
received by any Affiliated Credit Party pursuant to any of the System Documents.
(b) From time to time, the Credit Parties shall deliver to the
each Lender, such other information regarding the business of the Company, the
Borrowing Affiliates, any System or any Telecommunications Business as such
Lender may reasonably request.
(c) From time to time, the Company and each of Nextel Peru and
Infocom shall deliver to each Political Risk Insurer, such information regarding
the business of the Company, the Borrowing Affiliates, the Systems or the
Telecommunications Businesses as any Political Risk Insurer may reasonably
request.
(d) The Company shall provide, or shall cause to be provided to,
the Administrative Agent a monthly report summarizing the balance in the deposit
account which is subject to the
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Company Security Deposit Agreement, including a description of all deposits and
disbursements therefrom.
(e) The officers of the Affiliated Credit Parties (including,
without limitation, the chief financial officers thereof) shall, at the
reasonable request of the Administrative Agent, make themselves reasonably
available following the Administrative Agent's receipt of the financial
information required to be delivered by the Company pursuant to Sections 8.2 or
8.3 hereof (commencing with the information delivered for the period ending
March 31, 1999), in order to discuss and review the Affiliated Credit Parties'
respective results shown on such financial statements with representatives of
the Administrative Agent.
SECTION 8.5 ACCESS TO BOOKS; INSPECTIONS.
(a) Each of the Affiliated Credit Parties shall permit the Lender
Parties and each Political Risk Insurer, if any, and their respective
representatives, at all reasonable times, but prior to an Event of Default at
the Lender Parties' or any Political Risk Insurer's (as appropriate) own
expense and with prior written notice to the Company and the relevant other
Affiliated Credit Parties, and after an Event of Default at the expense of the
Company and each Borrowing Affiliate, to inspect the facilities, activities,
books of account and records of the Company and the other Affiliated Credit
Parties and make copies thereof, and shall cause its representatives, employees
and accountants to give their full cooperation and assistance in connection
with any such visits of inspection or any financial conferences called by a
Lender or a Political Risk Insurer. The Company shall promptly supply to the
Lender Parties or the Political Risk Insurer(s) (as appropriate) copies of any
reports on its or any Affiliated Credit Party's business and activities which
are publicly distributed, and will give notice of and make available to the
Lender Parties or the Political Risk Insurer(s) (as appropriate) copies of any
other reports on its or any Borrowing Affiliate's activities and reports made
to the government, or any governmental agency or council as the Lender Parties
or such Political Risk Insurer(s) may from time to time reasonably request.
Each of the Company and the Borrowing Affiliates shall also make available such
further information concerning its or any other Borrowing Affiliate's business
and affairs in the Relevant Countries as any Lender Party or the Political Risk
Insurer(s) may from time to time reasonably request.
(b) Each Affiliated Credit Party shall maintain an adequate
accounting system, including, without limitation, books, accounts and records,
prepare all financial statements required hereunder in accordance with GAAP,
consistently applied, and in compliance with the regulations of any
Governmental regulatory body having jurisdiction thereof.
SECTION 8.6 GOVERNMENTAL APPROVALS; LICENSES.
Each of the Affiliated Credit Parties (and in the case of clause (ii) all
Credit Parties) shall promptly from time to time obtain or cause to be obtained
all Governmental Approvals and Licenses as shall now or hereafter be necessary
(i) for the construction, ownership, completion, operation and maintenance of
the relevant Systems and the related Telecommunications
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Businesses and as contemplated by the System Documents (except where failure to
obtain could not reasonably be expected to have a Material Adverse Effect), and
(ii) for the grant of the assignments and security interests granted by the
Security Documents or the validity and enforceability thereof or for the
perfection of or the exercise by the Collateral Agent of its rights and
remedies thereunder. Such Person shall furnish to the Agents copies of all
such Governmental Approvals and Licenses together with the financial statements
delivered pursuant to Section 8.2.
SECTION 8.7 INSURANCE.
(a) Business Insurance.
Each of the Affiliated Credit Parties shall (i) maintain or
cause to be maintained, to the extent available on commercially reasonable
terms, in full force and effect at all times on and after the Closing Date and
continuing until the Maturity Date, with responsible insurance companies
having, a Best Insurance Reports rating of "A-" or better and a financial size
category of "IX" or higher (and other companies and ratings services reasonably
acceptable to the Required Lenders) such insurance on such of its properties,
in such amounts and against such risks and with such deductibles as a Person
conducting a similar business under similar conditions as the Affiliated Credit
Parties would customarily maintain coverage, (ii) file with the Agents no more
than 7 days after each policy anniversary, certificates of all insurance then
in effect, stating the names of the insurance companies, the amounts of the
insurance, the dates of the expiration thereof and the properties and risks
covered thereby and specifically listing the special provisions enumerated for
such insurance required by this Section 8.7, and (iii) obtain such additional
insurance, to the extent available on commercially reasonable terms, as the
Required Lenders may reasonably request to cover risks not foreseen prior to
the Closing Date. The certificates of insurance referred to in clause (ii)
hereof shall be executed by an authorized representative of each insurer. Upon
request, the Company will promptly furnish the Agents with evidence of such
insurance relating to each System and each Telecommunications Business.
(b) Political Risk Insurance.
If there are or, after giving effect to any proposed Advance,
will be, outstanding any Attributable Borrowings with respect to Infocom, the
Company shall maintain or cause to be maintained with one or more Political
Risk Insurers, Political Risk Insurance for Infocom in the amount set forth on
Schedule 8.7(b) hereto, which amount shall at no time be less than the
Attributable Borrowings of Infocom then outstanding. If there are or, after
giving effect to any proposed Advance, will be, outstanding any Attributable
Borrowings with respect to Nextel Peru, the Company shall maintain or cause to
be maintained with one or more Political Risk Insurers, Political Risk
Insurance for Nextel Peru in the amount set forth on Schedule 8.7(b) hereto,
which amount shall at no time be less than the Attributable Borrowings of
Nextel Peru then outstanding. The Company shall pay all costs and premiums in
connection with such Political Risk Insurance.
SECTION 8.8 CONTINUANCE OF BUSINESS.
Each of the Credit Parties shall maintain their respective corporate
existence, rights, licenses and privileges in good standing under and in
compliance with all applicable laws and
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regulations, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect
and shall maintain, subject to the provisions of Section 9.5 hereof, the
present character of its respective business.
SECTION 8.9 MAINTENANCE AND REPAIRS.
Each of the Affiliated Credit Parties shall conduct its respective
business in a manner consistent with prudent industry standards, keep all its
respective material assets and properties in good working order and condition,
and from time to time make all needful and proper repairs, renewals,
replacements and improvements thereof so that the business carried on in
connection therewith may be properly and prudently conducted at all times.
SECTION 8.10 COMPLIANCE WITH LAW.
(a) Each of the Credit Parties shall comply with the
requirements of all applicable Governmental Rules except those Governmental
Rules that are being contested in good faith by appropriate proceedings and
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect. In particular, and without application of any
materiality standard, each such Person agrees that its activities in connection
with the Systems and the Telecommunications Businesses shall be conducted in
full compliance under the United States Foreign Corrupt Practices Act and any
other applicable law dealing with improper or illegal payments, gifts or
gratuities. Notwithstanding the foregoing, the covenants contained in this
Section 8.10 shall not be deemed to have been violated to the extent any failure
to comply with any Governmental Rule or any other requirement of this Section
8.10 is attributable to a breach of the representation, warranty or covenant
contained in the last sentence of subsection 2.1(a) hereto.
(b) Notwithstanding anything in the foregoing subsection 8.10(a)
or in this Agreement to the contrary, the Affiliated Credit Parties (including
the Related Borrowing Affiliates) shall keep the relevant Systems and the assets
of the related Telecommunications Businesses free of any Lien imposed pursuant
to any Environmental Law; and will pay or cause to be paid when due any and all
costs in connection with the foregoing (except where the same are being
contested in good faith by proper procedures and as to which either (x) adequate
reserves have been established in accordance with GAAP on the books of such
Person or (y) non-payment of which would not reasonably be expected to have a
Material Adverse Effect), including, without limitation, the cost of identifying
the nature and extent of the presence of any Materials of Environmental Concern
in, on or from such System and the assets of such Telecommunications Business or
on any real property owned or leased by the Company or any Borrowing Affiliate,
and the cost of delineation, removal, treatment and disposal of any such
Materials of Environmental Concern. If an Affiliated Credit Party fails to do
any of the foregoing, then after the occurrence of an Event of Default related
thereto which is continuing under this Agreement, the Collateral Agent may cause
such System, the assets of such Telecommunications Business or the Collateral to
be freed (by removal or otherwise) from such Materials of Environmental Concern,
and the cost of such action (including, without limitation, reasonable
attorneys' consultants' and laboratories' fees and expenses) shall be added to
the Obligations of the Company pursuant to this Agreement and secured by the
Security Documents. The Affiliated
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Credit Parties will give to the Collateral Agent and its agents and employees
reasonable access to the Systems, the assets of the Telecommunications
Businesses and the Collateral to effect the foregoing, including, without
limitation, following such failure the periodic conduct of an environmental
audit, the cost of such audit to be paid by the Company, to ensure compliance
with this Section 8.10.
(c) None of the Affiliated Credit Parties shall use any System,
any Telecommunications Business or any of their real property to generate,
manufacture, refine, produce, treat, store, handle, dispose of, transfer,
process or transport Materials of Environmental Concern other than in compliance
with Environmental Laws.
(d) Each of the Affiliated Credit Parties will notify the Agents
promptly upon its receipt of any notice or advice from any Governmental
Authority or in writing from any other source with respect to Materials of
Environmental Concern on, from or affecting the relevant System or the related
Telecommunications Business. Each such Person will also make available for
inspection by the Collateral Agent and its agents and employees, accurate and
complete records of all investigations, studies, sampling and testing conducted,
and any and all remedial actions taken, by the Affiliated Credit Parties or, to
the knowledge of and to the extent obtained by, an Affiliated Credit Party, any
Governmental Authority or other Person in respect of Materials of Environmental
Concern on or affecting the relevant System or the related Telecommunications
Business.
SECTION 8.11 NOTICES.
(a) The Affiliated Credit Parties (as applicable) shall
promptly, but in no event later ten (10) Business Days (unless otherwise
indicated below) after the occurrence of the following events, give notice to
the Administrative Agent of the occurrence of any of the following:
(i) a Default or an Event of Default;
(ii) a default by any Affiliated Credit Party under any
material System Document which would reasonably be expected to have a Material
Adverse Effect, together with a statement of action proposed to be taken by such
Affiliated Credit Party to cure such default;
(iii) any (A) written claim, litigation, investigation or
proceeding which arises at any time involving the Licenses in the Major Market
Areas; (B) written claim, litigation, investigation or proceeding which arises
at any time involving any Credit Party which, if adversely determined, could
reasonably be expected to have a Material Adverse Effect; (C) the issuance by
any court or Governmental Authority of any injunction, order, decision or other
restraint prohibiting, or having the effect of prohibiting, the making of
Advances hereunder, or invalidating, or having the effect of invalidating, any
provision of this Agreement or any of the other Credit Documents, including but
not limited to, provisions regarding the granting of security interests in the
Collateral or the priority of such security interests, or the initiation of any
litigation or similar proceeding seeking any-such injunction, order, decision or
other restraint; or (D) any written challenge to the Licenses by any third party
in the Major Market Areas;
-66-
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(iv) any development in the business or affairs of any
Affiliated Credit Party which has resulted in or could reasonably be expected
to result in a Material Adverse Effect or the occurrence of any other event,
such as a Force Majeure, which, if adversely determined (if applicable) or
otherwise, could reasonably be expected to have a Material Adverse Effect;
(b) thirty (30) days prior written notice thereof, the movement of
any Affiliated Credit Party's principal place of business to any location other
than as set forth on Schedule 8.11 hereto;
(c) thirty (30) days prior written notice thereof, any notice
received by any Affiliated Credit Party from any other Governmental Authority
regarding events which, if determined adversely, could reasonably be expected
to have a Material Adverse Effect, including, without limitation, the
rejection, termination or revocation of any License or Governmental approval;
and
(d) promptly, upon their becoming available (and any Affiliated
Credit Party becoming aware of their existence), copies of: (i) all
correspondence with any representative of PBGC, the Secretary of Labor or the
IRS with respect to any Plan, relating to an actual or threatened change or
development that could reasonably be expected to have a Material Adverse
Effect; and (ii) copies of any notices of Plan termination filed by any Plan
Administrator (as those terms are used in ERISA) with the PBGC and of any
notices from the PBGC to the Company with respect to the intent of the PBGC to
institute involuntary termination proceedings where such termination could
reasonably be expected to have a Material Adverse Effect.
Each notice shall be accompanied by a statement of the principal financial
officer of the Company setting forth details of the occurrence referred to
therein and stating, what action the Company proposes to take with respect
thereto.
SECTION 8.12 SECURITY; FURTHER ASSURANCES.
(a) Each of the Credit Parties shall register or record each of
the Credit Documents to which it is a party (or a copy thereof) required to be
registered or recorded and execute and file and cause to be filed in such
offices as shall be required or appropriate under any applicable Uniform
Commercial Code or mortgage recording or other statute in any state or
jurisdiction (including, without limitation, all necessary or desirable
registrations with any central banking, registrar of companies or other
applicable Governmental Authority in the Relevant Countries), and, in each such
case, in such manner and form as the Collateral Agent may reasonably require or
as may be necessary under applicable governmental laws, any financing
statement, registration, mortgage or other instrument that may be necessary, or
that the Collateral Agent may reasonably request, in order to create, perfect,
preserve, validate or satisfy the Liens granted to the Collateral Agent (for
the benefit of the Lender Parties) pursuant to the Security Documents and shall
pay (except to the extent resulting solely from an act or omission of the
Collateral Agent) all costs, charges and expenses of and incidental to the
registration and recordation of the Credit Documents and the filing or
recording of such financing statements, mortgages or other instruments.
-67-
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(b) Each of the Credit Parties shall at all times and at such Person's
cost, warrant and defend its title in and to the Collateral attributed
to it.
(c) From time to time and at all times hereafter upon the reasonable
request of the Collateral Agent and (except to the extent are caused solely by
a change in circumstance related to the Collateral Agent) at the cost of the
Company, the Credit Parties shall execute and cause to be done and executed
all such acts, deeds and assurances to perfect, reserve or protect the rights
of the Collateral Agent with respect to the Collateral as the Collateral Agent
may reasonably request.
(d) If the Company or any of its Affiliates acquires any of the
Capital Stock of ▇▇▇▇▇ in addition to the Capital Stock of ▇▇▇▇▇ owned by the
Company as of the Closing Date, the Company or such Affiliate shall pledge such
Capital Stock to the Collateral Agent pursuant to the Company Pledge Agreement
or another pledge agreement substantially similar thereto.
SECTION 8.13 CONSTRUCTION OF THE SYSTEMS.
The Company shall proceed, together with the Related Borrowing Affiliate,
diligently to construct the Systems in the Major Market Areas as required and
permitted (to the extent necessary to achieve the Approved Business Plans)
pursuant to the Licenses.
SECTION 8.14 MAINTENANCE OF LICENSES.
Except to the extent loss of a License could not reasonably be expected to have
a Material Adverse Effect, each of the Affiliated Credit Parties shall: (i)
comply in all material respects with the terms and conditions of the Licenses,
preserve and maintain each License in full force and effect and shall not
permit or suffer to exist any default under the Licenses which could give rise
to a revocation or termination thereof; (ii) enforce and maintain in all
material respects its respective rights under such Licenses; and (iii) not
permit or consent to the modification or waiver (adverse to the license holder
or related Borrowing Affiliate) of any provision of the Licenses.
SECTION 8.15 FINANCIAL COVENANTS.
The Company and its Restricted Subsidiaries shall have or maintain, on a
consolidated basis, and at all times:
(a) a Fixed Charge Coverage Ratio of not less than the ratios set
forth below, measured at the end of each fiscal quarter of the Company
commencing with the fiscal quarter ending June 30, 2000:
---------------------------------------------------------------
Quarter end date Fixed Charge Coverage Ratio
---------------------------------------------------------------
6/30/00 0.4 : 1
---------------------------------------------------------------
9/30/00 0.4 : 1
---------------------------------------------------------------
12/31/00 0.4 : 1
---------------------------------------------------------------
3/31/01 0.4 : 1
---------------------------------------------------------------
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---------------------------------------------------------------
Quarter end date Fixed Charge Coverage Ratio
---------------------------------------------------------------
6/30/01 0.4 : 1
---------------------------------------------------------------
9/30/01 1.1 : 1
---------------------------------------------------------------
12/31/01 1.1 : 1
---------------------------------------------------------------
3/31/02 1.1 : 1
---------------------------------------------------------------
6/30/02 1.5 : 1
---------------------------------------------------------------
9/30/02 1.5 : 1
---------------------------------------------------------------
12/31/02 2.0 : 1
---------------------------------------------------------------
3/31/03 1.0 : 1
---------------------------------------------------------------
6/30/03 1.8 : 1
---------------------------------------------------------------
9/30/03 2.0 : 1
---------------------------------------------------------------
12/31/03 2.0 : 1
---------------------------------------------------------------
3/31/04 2.0 : 1
---------------------------------------------------------------
6/30/04 2.0 : 1
---------------------------------------------------------------
9/30/04 2.0 : 1
---------------------------------------------------------------
12/31/04 2.0 : 1
---------------------------------------------------------------
(b) a ratio of Indebtedness to EBITDA of not greater than the
ratios set forth below, measured at the end of each fiscal quarter of the
Company commencing with the fiscal quarter ending June 30, 2000 and calculated
in accordance with Section 8.15(c) (in the case of the EBITDA calculation):
-----------------------------------------------------------------
Quarter end date Maximum Debt to EBITDA ratio
-----------------------------------------------------------------
6/30/00 55 : 1
-----------------------------------------------------------------
9/30/00 43 : 1
-----------------------------------------------------------------
12/31/00 42 : 1
-----------------------------------------------------------------
3/31/01 42 : 1
-----------------------------------------------------------------
6/30/01 12 : 1
-----------------------------------------------------------------
9/30/01 9 : 1
-----------------------------------------------------------------
12/31/01 9 : 1
-----------------------------------------------------------------
3/31/02 8 : 1
-----------------------------------------------------------------
6/30/02 5 : 1
-----------------------------------------------------------------
9/30/02 4 : 1
-----------------------------------------------------------------
12/31/02 4 : 1
-----------------------------------------------------------------
3/31/03 4 : 1
-----------------------------------------------------------------
6/30/03 4 : 1
-----------------------------------------------------------------
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-----------------------------------------------------------------
Quarter end date Maximum Debt to EBITDA ratio
-----------------------------------------------------------------
9/30/03 4 : 1
-----------------------------------------------------------------
12/31/03 4 : 1
-----------------------------------------------------------------
3/31/04 4 : 1
-----------------------------------------------------------------
6/30/04 4 : 1
-----------------------------------------------------------------
9/30/04 4 : 1
-----------------------------------------------------------------
12/31/04 4 : 1
-----------------------------------------------------------------
(c) The product of (i) four times (ii) EBITDA, measured for the
most recently ended fiscal quarter commencing with the fiscal quarter ending
September 30, 1999, of not less than the amount on the quarter end dates set
forth below:
---------------------------------------------------------
Quarter end date Minimum EBITDA
---------------------------------------------------------
9/30/99 (126,000,000)
---------------------------------------------------------
12/31/99 (122,000,000)
---------------------------------------------------------
3/31/00 (95,000,000)
---------------------------------------------------------
6/30/00 35,000,000
---------------------------------------------------------
9/30/00 45,000,000
---------------------------------------------------------
12/31/00 45,000,000
---------------------------------------------------------
3/31/01 45,000,000
---------------------------------------------------------
6/30/01 170,000,000
---------------------------------------------------------
9/30/01 220,000,000
---------------------------------------------------------
12/31/01 230,000,000
---------------------------------------------------------
3/31/02 230,000,000
---------------------------------------------------------
6/30/02 370,000,000
---------------------------------------------------------
9/30/02 480,000,000
---------------------------------------------------------
12/31/02 500,000,000
---------------------------------------------------------
3/31/03 500,000,000
---------------------------------------------------------
6/30/03 530,000,000
---------------------------------------------------------
9/30/03 690,000,000
---------------------------------------------------------
12/31/03 700,000,000
---------------------------------------------------------
3/31/04 700,000,000
---------------------------------------------------------
6/30/04 630,000,000
---------------------------------------------------------
9/30/04 800,000,000
---------------------------------------------------------
12/31/04 850,000,000
---------------------------------------------------------
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(d) minimum Adjusted Recurring Revenues, measured at the end of
each fiscal quarter commencing with the quarter ending September 30, 1999, of
not less than the amounts set forth opposite the quarter end dates set forth
below:
-------------------------------------------------------------------
Quarter end date Minimum Adjusted Recurring
Revenues
-------------------------------------------------------------------
9/30/99 11,000,000
-------------------------------------------------------------------
12/31/99 12,500,000
-------------------------------------------------------------------
3/31/00 12,500,000
-------------------------------------------------------------------
6/30/00 12,500,000
-------------------------------------------------------------------
9/30/00 33,000,000
-------------------------------------------------------------------
12/31/00 35,000,000
-------------------------------------------------------------------
3/31/01 35,000,000
-------------------------------------------------------------------
6/30/01 35,000,000
-------------------------------------------------------------------
9/30/01 65,000,000
-------------------------------------------------------------------
12/31/01 75,000,000
-------------------------------------------------------------------
3/31/02 80,000,000
-------------------------------------------------------------------
6/30/02 95,000,000
-------------------------------------------------------------------
9/30/02 110,000,000
-------------------------------------------------------------------
12/31/02 110,000,00
-------------------------------------------------------------------
3/31/03 110,000,000
-------------------------------------------------------------------
6/30/03 125,000,000
-------------------------------------------------------------------
9/30/03 140,000,000
-------------------------------------------------------------------
12/31/03 140,000,000
-------------------------------------------------------------------
3/31/04 140,000,000
-------------------------------------------------------------------
6/30/04 140,000,000
-------------------------------------------------------------------
9/30/04 140,000,000
-------------------------------------------------------------------
12/31/04 140,000,000
-------------------------------------------------------------------
(e) a minimum number of Adjusted Subscribers, measured at the end
of each fiscal quarter commencing with the quarter ending September 30, 1999,
of not less than the number of Subscribers set forth opposite the quarter end
dates set forth below:
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-------------------------------------------------------------------
Quarter end date Minimum Adjusted Subscribers
-------------------------------------------------------------------
9/30/99 60,000
-------------------------------------------------------------------
12/31/99 90,000
-------------------------------------------------------------------
3/31/00 120,000
-------------------------------------------------------------------
6/30/00 155,000
-------------------------------------------------------------------
9/30/00 195,000
-------------------------------------------------------------------
12/31/00 250,000
-------------------------------------------------------------------
3/31/01 300,000
-------------------------------------------------------------------
6/30/01 345,000
-------------------------------------------------------------------
9/30/01 390,000
-------------------------------------------------------------------
12/31/01 440,000
-------------------------------------------------------------------
3/31/02 500,000
-------------------------------------------------------------------
6/30/02 540,000
-------------------------------------------------------------------
9/30/02 585,000
-------------------------------------------------------------------
12/31/02 645,000
-------------------------------------------------------------------
3/31/03 700,000
-------------------------------------------------------------------
6/30/03 730,000
-------------------------------------------------------------------
9/30/03 770,000
-------------------------------------------------------------------
12/31/03 820,000
-------------------------------------------------------------------
3/31/04 850,000
-------------------------------------------------------------------
6/30/04 850,000
-------------------------------------------------------------------
9/30/04 900,000
-------------------------------------------------------------------
12/31/04 900,000
-------------------------------------------------------------------
(f) Cash on deposit at all times in the deposit account (other
than the Prepayment Escrow Deposit Account) subject to the Company Security
Deposit Agreement in an amount equal to or in excess of the product of (i) the
amount of the Obligations reasonably estimated to be due and payable hereunder
on the next Semi Annual Date times (ii) a fraction the numerator of which is
the number of complete calendar months since the last Semi Annual Date and the
denominator of which is six (6).
(g) a ratio of Adjusted Indebtedness to Adjusted EBITDA of not
greater than the ratios set forth below, measured at the end of each fiscal
quarter of the Company commencing with the fiscal quarter ending June 30, 2000
and calculated (in the case of the Adjusted EBITDA calculation) by multiplying
(i) four times (ii) Adjusted EBITDA, measured for the most recently ended
fiscal quarter:
---------------------------------------------------------------------
Quarter end date Maximum Adjusted Indebtedness to
Adjusted EBITDA ratio
---------------------------------------------------------------------
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----------------------------------------------------------------------------
Quarter end date Maximum Adjusted Indebtedness to
Adjusted EBITDA ratio
----------------------------------------------------------------------------
9/30/00 83 : 1
----------------------------------------------------------------------------
12/31/00 83 : 1
----------------------------------------------------------------------------
3/31/01 83 : 1
----------------------------------------------------------------------------
6/30/01 22 : 1
----------------------------------------------------------------------------
9/30/01 17 : 1
----------------------------------------------------------------------------
12/31/01 16 : 1
----------------------------------------------------------------------------
3/31/02 16 : 1
----------------------------------------------------------------------------
6/30/02 13 : 1
----------------------------------------------------------------------------
9/30/02 10 : 1
----------------------------------------------------------------------------
12/31/02 10 : 1
----------------------------------------------------------------------------
3/31/03 9 : 1
----------------------------------------------------------------------------
6/30/03 9 : 1
----------------------------------------------------------------------------
9/30/03 8 : 1
----------------------------------------------------------------------------
12/31/03 8 : 1
----------------------------------------------------------------------------
3/31/04 8 : 1
----------------------------------------------------------------------------
6/30/04 8 : 1
----------------------------------------------------------------------------
9/30/04 8 : 1
----------------------------------------------------------------------------
12/31/04 8 : 1
----------------------------------------------------------------------------
(h) a minimum amount of Adjusted Paid-in Capital at all times for
the calendar quarters specified below of not less than the amounts during such
quarters specified as of the relevant quarter end dates set forth below:
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81
----------------------------------------------------------------------------
Quarter end date Minimum Adjusted Paid-in Capital
----------------------------------------------------------------------------
9/30/99 $505,000,000
----------------------------------------------------------------------------
12/31/99 $520,000,000
----------------------------------------------------------------------------
3/31/00 $520,000,000
----------------------------------------------------------------------------
6/30/00 $640,000,000
----------------------------------------------------------------------------
9/30/00 $640,000,000
----------------------------------------------------------------------------
12/31/00 $760,000,000
----------------------------------------------------------------------------
3/31/01 $760,000,000
----------------------------------------------------------------------------
6/30/01 $835,000,000
----------------------------------------------------------------------------
9/30/01 $835,000,000
----------------------------------------------------------------------------
12/31/01 $910,000,000
----------------------------------------------------------------------------
3/31/02 $910,000,000
----------------------------------------------------------------------------
6/30/02 $985,000,000
----------------------------------------------------------------------------
9/30/02 $985,000,000
----------------------------------------------------------------------------
12/31/02 $1,060,000,000
----------------------------------------------------------------------------
3/31/03 $1,060,000,000
----------------------------------------------------------------------------
6/30/03 $1,060,000,000
----------------------------------------------------------------------------
9/30/03 $1,060,000,000
----------------------------------------------------------------------------
12/31/03 $1,060,000,000
----------------------------------------------------------------------------
3/31/04 $1,060,000,000
----------------------------------------------------------------------------
6/30/04 $1,060,000,000
----------------------------------------------------------------------------
9/30/04 $1,060,000,000
----------------------------------------------------------------------------
12/31/04 $1,060,000,000
----------------------------------------------------------------------------
-74-
82
(i) In addition, in the event that any compliance certificate
delivered pursuant to Section 8.2 or 8.3 reflects the failure of the Company to
satisfy the EBITDA-related covenants under clauses (a), (b) and (c) above for
the most recently ended quarterly period certified thereon, the calculation of
EBITDA for such covenants for such period shall include as income, to the
extent necessary for compliance with such covenants for such period, an amount
equal to the positive difference, if any, of Adjusted Paid-in Capital as of the
end of such quarterly period minus the minimum Adjusted Paid-in Capital
required under clause (h) above as of the end of such quarterly period (the
amount of such excess which is included as income for purposes of compliance
with clauses (a), (b) and (c) above, together with all previous income
adjustments under this clause (i), is referred to as the "Utilized EBITDA
Adjustment"); provided that adjustments to income under this clause (i) for a
quarterly period shall not be permitted if an adjustment under this clause (i)
was made with respect to the immediately preceding quarterly period; provided,
further, the Utilized EBITDA Adjustment shall not be treated as income for any
other calculation of EBITDA under the Credit Documents including, without
limitation, in connection with the ratio of Adjusted Indebtedness to Adjusted
EBITDA.
-75-
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SECTION 8.16 FAILURE TO PERFORM OF THIRD PARTY GUARANTOR.
If any Third Party Guarantor shall fail to perform its obligations
under its Third Party Guaranty or an Event of Default otherwise exists with
respect to such Third Party Guarantor, the Company shall elect either (i) to
have an Acceptable Guarantor assume the liability of such Third Party Guarantor
under its Third Party Guaranty no later than thirty days after the
Administrative Agent notifies the Company of such failure by, or Event of
Default with respect to, the Third Party Guarantor or (ii) to reduce the
Attributable Borrowing Sublimit of such Third Party Guarantor's related
Borrowing Affiliate by an amount equal to such Third Party Guarantor's maximum
guaranty liability (calculated as if the Attributable Borrowing Sublimit had
been fully utilized) and require a prepayment of Advances in respect of such
Borrowing Affiliate's Attributable Borrowings in an amount equal to the lesser
of such Attributable Borrowings and such maximum guaranty liability; provided,
that until the Company has made and completed the actions contemplated by its
election, no Attributable Borrowings shall be made with respect to such Third
Party Guarantor's related Borrowing Affiliate. To the extent the Company
elects to proceed pursuant to clause (ii) of this Section 8.16, the
proportionate guaranty obligations of the remaining Third Party Guarantors with
respect to the relevant Borrowing Affiliate immediately prior to such issuance
shall be increased on a percentage basis so that after giving effect thereto,
each such Third Party Guarantor's maximum guaranty liability shall equal the
Attributable Borrowing Sublimit (as reduced) times its proportionate Ownership
Percentage of such Borrowing Affiliate relative to the other such remaining
Third Party Guarantors. For example, assuming arguendo that (a) Nextel Peru
initially had four related Third Party Guarantors each of which owned 25 shares
of the equity of Nextel Peru (out of a total of 100 shares issued and
outstanding), (b) the fourth Third Party Guarantor defaulted under its Third
Party Guaranty and (c) no Acceptable Guarantor was willing to assume the
defaulted Third Party Guarantor's Third Party Guaranty obligations, each of the
remaining Third Party Guarantors' guaranty exposure on a percentage basis would
increase to 25/75ths (from 25/100ths) of Nextel Peru's Attributable Borrowings
(up to its Attributable Borrowing Sublimit, which would have been reduced by
25%).
SECTION 8.17 UPDATE OF SECURITY DOCUMENTS.
Concurrently with the delivery of financial statements pursuant to
Sections 8.2 and 8.3, an Authorized Officer of the Company shall provide a list
of the shareholdings or quota holdings of record of the Company, the Parent
Guarantors (to the extent of their ownership of Borrowing Affiliates and other
Parent Guarantors) and the Borrowing Affiliates, or, if applicable, a
certification that there have been no changes in the shareholdings or quota
holdings since the last certification.
-76-
84
SECTION 9 NEGATIVE COVENANTS
Until the termination of the Commitments and payment in full of the
Advances, any interest due thereon and all other amounts due hereunder, and so
long as this Agreement remains in effect, each Credit Party covenants and
agrees that, unless the Required Lenders shall otherwise consent in writing, it
shall comply in all respects with each of the following covenants and
agreements attributed to it. In addition, the Company agrees to cause each of
its Restricted Subsidiaries (including, without limitation, each Borrowing
Affiliate) to comply in all respects with each covenant and agreement set forth
below and attributed to such Restricted Subsidiary.
SECTION 9.1 INDEBTEDNESS.
None of the Affiliated Credit Parties shall, nor shall they permit any
of their Restricted Subsidiaries to, at any time, incur, create, assume or
suffer to exist any Indebtedness (howsoever incurred, created, assumed or
existing, directly or indirectly) other than Permitted Indebtedness.
SECTION 9.2 GUARANTIES.
None of the Affiliated Credit Parties shall, nor shall they permit any
of their Restricted Subsidiaries to, assume, endorse, be or become liable for,
or guarantee, the obligations of any Person (other than the Borrowing Affiliate
Guaranties and Parent Guaranties), except (i) by the endorsement of negotiable
instruments for deposit or collection in the ordinary course of business, and
(ii) in respect of the Permitted Indebtedness of the Company and the Borrowing
Affiliates. For the purposes hereof, the term "guarantee" shall include any
agreement, whether such agreement is on a contingency or otherwise, to
purchase, repurchase or otherwise acquire Indebtedness of any other Person, or
to purchase, sell or lease, as lessee or lessor, property or services, in any
such case primarily for the purpose of enabling another Person to make payment
of Indebtedness, or to make any payment (whether as an advance, capital
contribution, purchase of any equity interest or otherwise) to assure a minimum
equity, asset base, working capital or other balance sheet or financial
condition, in connection with the Indebtedness of another Person, or to supply
funds to or in any manner invest in another Person in connection with such
Person's Indebtedness.
SECTION 9.3 TRANSFER.
(a) Except as otherwise permitted by Section 9.5, none of the
Affiliated Credit Parties shall, nor shall they permit their Restricted
Subsidiaries to, without the prior written consent of the Required Lenders,
sell, lease, transfer, assign or otherwise dispose of (whether in one
transaction or in a series of related transactions) all or any material part of
its assets (except (x) in the ordinary course of business, and (y) if the value
of the asset is less than 10% of the total assets of the Company on a
consolidated basis (excluding Subsidiaries of the Company which are not
Affiliated Credit Parties) as listed on the most recent balance sheet delivered
in accordance with subsections 8.2(a) or 8.3(a) hereof, as the case may be, or
the aggregate value of assets disposed of in any year does not exceed 10% of
the total assets of the Company on a consolidated basis (excluding Subsidiaries
of the Company which are not Affiliated Credit Parties) as listed on the most
recent balance sheet delivered in accordance with subsections 8.2(a) and 8.3(a)
hereof, as the case may be, or such disposition is for the replacement of
obsolete, worn or defective
-77-
85
equipment for which such Affiliated Credit Party shall have received adequate
and fair consideration), whether now owned or hereafter acquired.
(b) Notwithstanding the second parenthetical in each of subsection
9.3(a) and subsection 9.3(b) above, none of the Affiliated Credit Parties
shall, nor shall they permit their Restricted Subsidiaries to, without the
prior written consent of the Required Lenders, sell, lease, transfer, assign or
otherwise dispose of, or transfer out of the Relevant Country to which it was
originally shipped, any equipment acquired pursuant to the iDEN Equipment and
Service Agreements or any ancillary switches or products to be used in
connection with the Systems.
SECTION 9.4 LIENS.
None of the Affiliated Credit Parties shall, nor shall they permit any
of their Restricted Subsidiaries to, create or suffer to exist any Lien upon or
with respect to any of such Affiliated Credit Party's assets, whether now owned
or hereafter acquired, other than Permitted Liens and the Liens in existence on
the Closing Date as set forth on Schedule 9.4.
SECTION 9.5 MERGERS; ACQUISITIONS.
None of the Affiliated Credit Parties shall, nor shall they permit any
of their Restricted Subsidiaries to, (a) merge or consolidate with any Person
(except that a wholly-owned Restricted Subsidiary of the Company may merge into
any other wholly-owned Restricted Subsidiary of the Company; provided, that, if
any such merger involves a Borrowing Affiliate the surviving entity must be a
Borrowing Affiliate), or (b) except as permitted by Section 9.9 or Section 9.12
hereof, acquire all or substantially all of the assets or any of the capital
stock or the partnership interests of any Person.
SECTION 9.6 DISTRIBUTIONS; REDEMPTIONS.
(a) None of the Affiliated Credit Parties shall, nor shall they
permit any of their Restricted Subsidiaries to, declare or pay any dividends or
make any distribution of any kind on such Affiliated Credit Party's outstanding
stock, or set aside any sum for such purposes (all of the foregoing,
"Distributions") except to the extent that 100% of such Distributions are
immediately applied to prepay the Obligations.
(b) None of the Affiliated Credit Parties shall, nor shall they
permit any of their Restricted Subsidiaries to, purchase, redeem, retire or
otherwise acquire, directly or indirectly, or make any sinking fund payment
with respect to, any shares of any class of stock of any Affiliated Credit
Party now or hereafter outstanding or set apart any sum for any such purpose
(each of the foregoing actions being referred to herein as a "Restricted
Payment"), other than (i) redemptions or repurchases with respect to employee
option shares, (ii) redemptions or repurchases with respect to stock held by
those with minority positions, (iii) the repurchase, redemption or other
acquisition of capital stock of the Company (or options, warrants or other
rights to acquire such capital stock) in exchange for, or out of the proceeds
of a substantially concurrent offering of, shares of capital stock of the
Company; (iv) payments or distributions to dissenting stockholders
-78-
86
pursuant to applicable law, pursuant to or in connection with a consolidation,
merger or transfer of assets that complies with the provisions of this
Agreement; (v) the repurchase, redemption or other acquisition for value of
capital stock of the Company to the extent necessary to prevent the loss or
secure the renewal or reinstatement of any license or franchise held by the
Company or any of its Subsidiaries from any governmental agency; (vi)
repurchases of Warrants issued pursuant to the Warrant Agreement dated as of
March 6, 1997 between the Company and The Bank of New York as Warrant Agent;
(vii) payments or distributions to dissenting stockholders pursuant to
applicable law, pursuant to or in connection with a consolidation, merger or
transfer of assets that complies with the provisions of this Agreement
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Company; and (viii) redemptions pursuant to
the exercise by the holders thereof of the "put" rights identified on Schedule
9.6 hereto; provided, that, the redemptions, repurchases and payments described
in the foregoing clauses (i) - (vii) shall not exceed $5,000,000 in the
aggregate; provided, further, that the payments in respect of clause (i) shall
be excluded from the $5,000,000 limitation in the preceding proviso to the
extent of the sum of (A) the net cash proceeds received by the Company in
respect of the exercise of the options pursuant to which such shares were
issued and (B) the net cash proceeds of Capital Stock (other than Redeemable
Stock) issued by the Company and the net cash proceeds of any capital
contributed to the Company which, in each case, are being or have been used to
redeem or repurchase such shares.
SECTION 9.7 STOCK ISSUANCE.
None of the Affiliated Credit Parties other than the Company shall,
nor shall they permit any of their Subsidiaries to, issue any additional shares
or any right or option to acquire any shares, or any security convertible into
any shares, of the capital stock or equity interests of such Person unless
either (i) (a) such options and such shares or equity interests, upon issuance,
become pledged to the Collateral Agent and subject to the other agreements
referred to herein to which the existing shares or equity interests of such
Person are subject prior to such issuance and (b) the acquiror of such options,
security, shares or equity interests shall be deemed by the Required Lenders to
be creditworthy and shall agree to be a Parent Guarantor hereunder on terms and
conditions acceptable to the Required Lenders, and provided that, in any event,
after (or as a result of) any such issuance there shall not have occurred any
Event of Default of the type referred to in subsections 11.1 (w), (x) and (y)
hereof or (ii) the Company applies the net proceeds from such issuance to the
prepayment of the Obligations.
SECTION 9.8 AMENDMENT OF DOCUMENTS AND ORGANIZATION.
(a) None of the Affiliated Credit Parties shall, nor shall they
permit any of their Restricted Subsidiaries to, (i) amend, waive or modify, or
agree to any amendment, waiver, supplement or modification of, or fail to
perform its Obligations under any System Document to which it is a party or any
other agreement, contract or instrument, the result of which could reasonably
be expected to have a Material Adverse Effect, (ii) cancel or terminate, or
agree to any cancellation, termination or assignment of, any material System
Document the cancellation, termination or assignment of which could reasonably
be expected to have a Material Adverse Effect, or grant consents with respect
to any material obligation thereunder, (iii) exercise any
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options or remedies or make any elections under any such System Document which
exercise or election could reasonably be expected to have a Material Adverse
Effect, or (iv) fail to exercise promptly and diligently each and every
material right which it may have under a System Document (other than any right
of termination) the result of which could reasonably be expected to have a
Material Adverse Effect.
(b) None of the Affiliated Credit Parties shall, nor shall they
permit their Restricted Subsidiaries to, amend, supplement, or otherwise modify
or waive compliance with any of the provisions of their respective articles of
incorporation or by-laws or shareholders agreement (or any other constitutive
documents) except for amendments, supplements, modifications or waivers that
could not reasonably be expected to have a Material Adverse Effect or could not
otherwise materially and adversely affect the Company's or any such other
Affiliated Credit Party's ability to perform its obligations under the Credit
Documents.
(c) If the Company amends, waives, modifies or supplements any
Intercompany Loan Agreement in any manner adverse to the Lenders, such
amendment, waiver, modification or supplement will not be effective as to this
Agreement unless the Required Lenders consent to such amendment, waiver,
modification or supplement.
SECTION 9.9 INVESTMENTS; LOANS; ADVANCES.
None of the Affiliated Credit Parties shall, nor shall they permit any
of their Restricted Subsidiaries to, make any Investment, loan or advance to
any Person except as follows:
(a) loans or advances to the extent permitted by Section 9.12
hereof;
(b) Permitted Investments;
(c) Investments permitted by Section 9.5;
(d) loans or advances by the Company to the Borrowing Affiliates
to the extent evidenced by the Borrowing Affiliate Notes or other debt
instruments pledged under a Pledge Agreement
(e) Investments in Hedge Agreements not entered for a speculative
purpose;
(f) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the ordinary
course of business;
(g) receivables acquired and owing in the ordinary course of
business and payable or dischargeable in accordance with customary
trade terms;
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(h) Investments acquired by a Person (i) in exchange for any other
Investment held by such Person in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer
of such other Investment or (ii) as a result of a foreclosure by such
Person with respect to any secured Investment or other transfer of
title with respect to any secured Investment in default;
(i) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP, including loans and advances to
employees for business related travel expenses, moving expenses, costs
of replacement homes and other similar expenses, in each case incurred
in the ordinary course of business;
(j) additional Investments in the capital of any Restricted
Subsidiary, so long as all of the Capital Stock of the Restricted
Subsidiary owned by the Company or a Restricted Subsidiary has been
pledged to the Collateral Agent pursuant to the Company Pledge
Agreement or another pledge agreement substantially similar thereto
and is not subject to any other Lien, except for Permitted Liens;
(k) to the extent not permitted by the foregoing clauses, equity
investments existing on the Closing Date in any Subsidiaries (and any
increases thereof attributable to increases in retained earnings);
(l) loans and advances by the Company to any Borrowing Affiliate
evidenced by a note made payable to the Company and concurrently
pledged by the Company as Collateral to secure the Obligations;
(m) Investments by the Company or a Restricted Subsidiary of the
Company in a Person which will, upon the making of such Investment,
become a Restricted Subsidiary of the Company or be merged or
consolidated with or into or transfer or convey all or substantially
all its assets to, the Company or a Restricted Subsidiary of the
Company; provided that (i) such Person's primary business is related,
ancillary or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such Investment and (ii) all of
the Capital Stock of such Person owned by the Company or a Restricted
Subsidiary shall (A) be pledged to the Collateral Agent pursuant to
the Company Pledge Agreement or another pledge agreement substantially
similar thereto and (B) not be subject to any other Lien, except for
Permitted Liens;
(n) Investments acquired as a capital contribution to the Company or
in exchange for capital stock (other than Redeemable Stock) of the
Company;
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(o) Investments in a Person which has ceased to be a Restricted
Subsidiary or ceases to observe any of the provisions of the covenants
applicable to it as a result of an event similar to those described in
Section 11.1(l), (m) or (n); provided (I) such Investment is made
solely with the proceeds of a substantially concurrent capital
contribution to, or sale of capital stock (other than Redeemable
Stock) of, the Company and (II) after such Investment such event shall
no longer continue and such Person shall be a Restricted Subsidiary;
and
(p) additional Investments, loans and advances not to exceed
$10,000,000 in the aggregate.
Notwithstanding anything contained in this Section 9.9 to the contrary, the
Company may make, with the consent of the Required Lenders, which consent shall
not be unreasonably withheld or delayed, equity Investments in Persons engaged
in businesses in which the Company is permitted to engage under Section 9.12;
provided that (A) all such Persons shall be deemed to be "Restricted
Subsidiaries" for all purposes of this Agreement and the other Credit
Documents, (B) the Capital Stock of such Persons shall be subject to the
Company Pledge Agreement or another pledge agreement substantially similar
thereto and shall not be subject to any other Lien, except for Permitted Liens,
and (C) the Company shall have and maintain while such Investment exists,
directly or indirectly, the requisite and assignable (for the benefit of the
Lenders) control over such Person to prevent it from incurring Indebtedness, or
taking any other action at any time, which is in contravention of any of the
provisions of this Agreement which are applicable to Restricted Subsidiaries.
SECTION 9.10 [RESERVED].
SECTION 9.11 TRANSACTIONS WITH AFFILIATES.
None of the Affiliated Credit Parties shall, nor shall they permit
their Restricted Subsidiaries to, except as expressly permitted by the Credit
Documents, transfer, sell, assign or otherwise dispose of, directly or
indirectly, any Collateral or other assets to any Affiliate other than an
Affiliated Credit Party or any Restricted Subsidiary of an Affiliated Credit
Party (any such Affiliate other than an Affiliated Credit Party or a Restricted
Subsidiary of an Affiliated Credit Party, an "Arm's-Length Affiliate"), or
enter into any transaction directly or indirectly with or for the benefit of
any Arm's-Length Affiliate; provided, that the Affiliated Credit Parties may
enter into transactions with an Arm's-Length Affiliate so long as the monetary
or business consideration arising therefrom would be as advantageous to the
Affiliated Credit Parties as the monetary or business consideration which the
Affiliated Credit Parties would obtain in a comparable arm's length transaction
with a Person not an Affiliate.
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SECTION 9.12 CHANGES IN BUSINESS.
(a) None of the Affiliated Credit Parties shall, nor shall they
permit their Restricted Subsidiaries to, enter into or engage in any business
other than the ownership and operation of the Systems; provided that, such
Persons may (x) continue to engage in a Telecommunications Business in which it
is engaged on the Closing Date and (y) enter into or engage in a
Telecommunications Business (including, without limitation, by way of purchase
of assets or stock, by merger or consolidation) other than ownership and
operation of the Systems if, with respect to a new Telecommunications Business,
the entering into thereof could not reasonably be expected to have a Material
Adverse Effect.
(b) None of the Affiliated Credit Parties shall, nor shall they
permit their Restricted Subsidiaries to, (i) make any material change in its
business or the Systems in the Major Market Areas, or (ii) wind-up or liquidate
or dissolve itself (or suffer any liquidation or dissolution) or discontinue
its business.
SECTION 9.13 PREPAYMENTS.
None of the Affiliated Credit Parties shall make any voluntary or
optional prepayment of any Indebtedness for borrowed money incurred or
permitted to exist under the terms of this Agreement, other than the
Indebtedness under this Agreement, or prepayments of the 1997 Infocom Facility
or the Infocom Bridge Facility and except for prepayments on the Borrowing
Affiliate Notes which are applied as provided in Section 2.5.
SECTION 9.14 ERISA OBLIGATIONS.
No Affiliated Credit Party shall do, agree to do, or permit to be
done, any of the following with respect to any Plan:
(a) be or become obligated to the PBGC in excess of $1,000,000
other than with respect to timely paid annual premium payments; and
(b) be or become obligated to the IRS or the Secretary of Labor in
excess of $1,000,000 with respect to excise taxes or other penalties provided
for in Sections 4971 through 4980B of the Code or Section 502 of ERISA.
SECTION 9.15 SALE AND LEASEBACK TRANSACTIONS.
None of the Affiliated Credit Parties shall, nor shall they permit any
of their Restricted Subsidiaries to, directly or indirectly, enter into any
sale and leaseback transaction or any other arrangement with any Person
providing for any such Affiliated Credit Party to lease or rent property that
any such Affiliated Credit Party has sold or will sell or otherwise transfer to
such Person except as permitted to be incurred as Indebtedness under Section
9.l.
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SECTION 9.16 NEW SUBSIDIARIES.
None of the Affiliated Credit Parties shall, nor shall they permit
their Restricted Subsidiaries to, directly or indirectly, organize, create,
acquire or permit to exist any Subsidiary other than those Subsidiaries in
existence on the Closing Date and listed on Schedule 7.1(a) hereof and those
Subsidiaries permitted by Section 9.9 and 9.12 hereof.
SECTION 9.17 [RESERVED].
SECTION 9.18 RESTRICTED SUBSIDIARIES.
The Company shall not designate any Restricted Subsidiary as an
Unrestricted Subsidiary, and shall not itself, and shall not permit any
Restricted Subsidiary to, sell, convey, transfer or otherwise dispose of any
assets, other than in the ordinary course of business, to any Unrestricted
Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of
such transaction, unless such Subsidiary does not own any stock of, and does
not own or hold any Lien on any property of, the Company or any Restricted
Subsidiary; provided, that (a) any guarantee by the Company or any Restricted
Subsidiary of the Company of any Indebtedness of the Subsidiary being
designated as an Unrestricted Subsidiary shall be deemed an incurrence of such
Indebtedness or an Investment by the Company or such Restricted Subsidiary (or
both, if applicable); (b) either (i) the Subsidiary to be deemed an
Unrestricted Subsidiary has total gross assets of $1,000 or less, or (ii) if
the Subsidiary to be deemed an Unrestricted Subsidiary has total gross assets
greater than $1,000, then such designation shall, for all purposes of Section
9.6 (including clause (b) thereof), be deemed to be a Restricted Payment of an
amount equal to the fair market value of the Company's ownership interest in
such Subsidiary (including, without duplication, such indirect ownership
interest in all Subsidiaries of such Subsidiary), as determined by the Board
(as defined below) in good faith; and (c) if applicable, the incurrence of
Indebtedness and the Investment referred to in clause (a) of this proviso would
be permitted under Sections 9.1 and 9.6, respectively.
The Company's Board of Directors (the "Board") may designate any
existing Unrestricted Subsidiary or any Person that is about to become a
Subsidiary of the Company as a Restricted Subsidiary if, after giving effect to
such action (and, if such designation is made in connection with the
acquisition of a Person or an operating business that is about to become a
Subsidiary of the Company, after giving effect to all terms of such
acquisition) (a) on a pro forma basis, on the date of such action, the Liens
and Indebtedness, if any, of such Unrestricted Subsidiary or Person outstanding
immediately prior to such designation would have been permitted to be incurred
(and shall be deemed to have been incurred) for all purposes of this Agreement;
and (b) no Default or Event of Default shall have occurred and be continuing.
Notwithstanding the foregoing provisions of this Section 9.18, the
Board may not designate any Affiliated Credit Party to be an Unrestricted
Subsidiary.
The Board, from time to time, may designate any Person that is about
to become a Subsidiary of the Company as an Unrestricted Subsidiary, and may
designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the
time such Subsidiary is created it contains no
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assets (other than such de minimis amount of assets then required by law for
the formation of corporations) and no Indebtedness.
Subsidiaries of the Company that are not designated by the Board as
Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted
Subsidiaries. Notwithstanding any provisions of this Section 9.18, all
Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries.
SECTION 10 CONDITIONS PRECEDENT
SECTION 10.1 CONDITIONS TO INITIAL ADVANCE.
The obligations of the each Lender to make its initial Advance
hereunder shall be subject to the fulfillment of the following conditions
precedent to the satisfaction of the Administrative Agent and the Lenders on or
prior to the date of the initial Advance:
(a) All representations and warranties of the Credit Parties in
Section 7 hereof shall be true and correct as of the date made and as of the
date of the initial Advance (except to the extent they relate to an earlier
date in which case such representations and warranties shall be true as of such
date).
(b) Company Documents.
(i) The Company shall have executed and delivered to the
Administrative Agent this Agreement and, to the extent requested by
one or more of the Lenders, the Financing Note(s).
(ii) The Company shall have:
(A) delivered acknowledgment copies of UCC-1
Financing Statements necessary to perfect a first priority security
interest and evidence thereof;
(B) delivered to the Agents: (1) copies of, or
certificates of the issuing companies with respect to, policies of
insurance owned by the Company complying with the provisions of
Section 8.7 hereof, together with endorsements thereto naming the
Collateral Agent (where applicable), in its capacity as such and
including the Lender Parties, as additional insured as their interests
may appear; (2) evidence of the Company's liability insurance
policies, and (3) evidence that such insurance is in full force and
effect; and
(iii) executed and delivered to the Collateral Agent the
Company Pledge Agreement and the Company Security Deposit Agreement
together with (1) the certificates evidencing the capital stock
pledged by it accompanied by stock powers
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endorsed in blank and irrevocable proxies relating thereto and (2) the
Borrowing Affiliate Notes and all other pledged instruments, duly
executed and accompanied by note powers endorsed in blank and
irrevocable proxies relating thereto, and shall have duly complied
with all of the terms and conditions thereof;
(iv) made all registrations under the law of the United
States, the Relevant Countries, the Cayman Islands and Hong Kong,
including, without limitation, those necessary to perfect a first
priority security interest in the Collateral and evidence thereof;
(v) paid documentary taxes and registration fees which may
be payable on the Security Documents attributed to the Company; and
(vi) otherwise duly complied with all of the terms and
conditions of the Security Documents to be executed by it.
(c) Parent Guarantor Documents.
Each Parent Guarantor shall have:
(i) executed and delivered to the Administrative Agent
its respective Parent Guaranty;
(ii) executed and delivered to the Collateral Agent its
Parent Guarantor Pledge Agreement together with (A) the certificates
evidencing the capital stock pledged by it accompanied by stock powers
endorsed in blank and irrevocable proxies relating thereto and (B) all
other pledged instruments, duly executed and accompanied by note
powers endorsed in blank and irrevocable proxies relating thereto, and
shall have duly complied with all of the terms and conditions thereof;
(iii) made all registrations under the law of the
United States, the Relevant Countries, the Cayman Islands and Hong
Kong, including, without limitation, those necessary to perfect a
first priority security interest in so much of the Collateral as is
attributed to the Parent Guarantor and evidence thereof;
(iv) paid documentary taxes and registration fees which
may be payable on the Security Documents attributed to the Parent
Guarantor; and
(v) otherwise duly complied with all of the terms and
conditions of the Security Documents to be executed by it.
(d) Borrowing Affiliate Documents.
Each of the Borrowing Affiliates shall have:
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(i) executed and delivered to the Administrative Agent its
Borrowing Affiliate Guaranty;
(ii) executed and delivered to the Company, for pledge
hereunder, its Borrowing Affiliate Notes;
(iii) made all registrations under the law of the Relevant
Countries including, without limitation, those necessary to perfect a
first priority security interest in so much of the Collateral as is
attributed to or in respect of such Borrowing Affiliate and evidence
thereof;
(iv) paid documentary taxes and registration fees which may
be payable on the Security Documents attributed to such Borrowing
Affiliates;
(v) executed and delivered to the Collateral Agent the
Borrowing Affiliate Pledge Agreement together with (1) the
certificates evidencing the capital stock pledged by it accompanied by
stock powers endorsed in blank and irrevocable proxies relating
thereto and (2) and all other pledged instruments, duly executed and
accompanied by note powers endorsed in blank and irrevocable proxies
relating thereto, and shall have duly complied with all of the terms
and conditions thereof;
(vi) delivered to the Collateral Agent: (A) copies of, or
certificates of the issuing companies with respect to, policies of
insurance owned by such Borrowing Affiliate complying with the
provisions of Section 8.7 hereof, together with endorsements thereto
that naming the Collateral Agent (where applicable), in its capacity
as such and including the Lender Parties, as additional insured as its
interests may appear; and (B) evidence that such insurance is in full
force and effect, and (C) certificates and summaries of such Borrowing
Affiliate's liability insurance policies; and
(vii) otherwise duly complied with all of the terms and
conditions of the Security Documents to be executed by it.
(e) The Administrative Agent shall have received the following
documents (or with respect to clauses (i) and (ii) shall have waived such
deliveries):
(i) with respect to each Credit Party, copies, certified by
an Authorized Officer of such Credit Party, of the Articles of
Incorporation (including, without limitation, amendments thereto) and
Bylaws of such Person (or other organizational documents), each as
amended to date, along, with evidence with respect to such Person
establishing the existence and good standing (where applicable) of
such Person;
(ii) certificates of an Authorized Officer of each Credit
Party certifying (i) the resolutions of the Board of Directors or
other governing body of such Person or other
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action of such Person authorizing the execution, delivery and
performance of the Credit Documents to which it is a party and, with
respect to the Company, the iDEN Equipment and Service Agreements and
the other System Documents, and (ii) the authority, name, title and
specimen signature of each individual authorized to execute any of the
Credit Documents to which it is a party and, with respect to the
Company, the iDEN Equipment and Service Agreements, and any other
documents in relation thereto on behalf of such Person and to bind
such Person thereby;
(iii) a copy of the Company's and each Borrowing Affiliate's
most recent audited and of the Company's most recent unaudited
financial statements in conformity with Sections 8.2 and 8.3 hereof,
and
(iv) the opinion of local counsel to each Credit Party and
the opinion of special United States counsel to the Company and each
other Credit Party, each dated the Initial Funding Date and addressed
to the Agents and the Lenders (and to be relied upon by their
respective assigns), in the form attached hereto as Exhibits K-1 and
K-2, respectively.
(f) The Administrative Agent shall have received the Approved
Business Plans of the Company, each of the Borrowing Affiliates, Nextel
Argentina and Nextel Brazil and for the Company and the Borrowing Affiliates,
taken as a whole.
(g) All fees payable in connection with the transactions
contemplated by this Agreement shall have been paid.
(h) Political Risk Insurance as provided in subsection 8.7(b)
shall be in full force and effect and all premiums and other costs associated
therewith shall have been paid.
(i) The Administrative Agent shall have received a post closing
agreement in form and substance satisfactory to the Lenders in their sole
discretion.
(j) The Credit Parties shall have otherwise complied with the
collateral security requirements in Section 6 of this Agreement.
SECTION 10.2 CONDITIONS TO ALL ADVANCES.
The obligation of the Lenders to make any Advance to the Company upon
the occasion of each financing hereunder (including, without limitation, the
initial Advance) is subject to the further conditions precedent that:
(a) The Administrative Agent shall have received a Request for
Financing, and, if applicable, an Invoice, pursuant to Section 2.2 hereof.
(b) On and as of the date of such Advance, (i) no Default, Event
of Default or default under any Credit Document or any System Document shall
have occurred and be continuing, (ii)
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the representations and warranties made by the Company and each other Credit
Party in the Credit Documents are true and correct in all material respects
(other than those representations and warranties that are expressly made only
as of an earlier date), and (iii) the Administrative Agent shall have received
a certificate of a duly Authorized Officer of the Company certifying as to the
foregoing matters.
None of the following events shall have occurred: (i) any Relevant
Country or any Governmental Authority in any Relevant Country shall have
declared a moratorium on the payment of indebtedness by such Relevant Country
or any Governmental Authority in such Relevant Country or corporations therein;
(ii) any Relevant Country shall have ceased to be a member in good standing of
the International Monetary Fund or shall have ceased to be eligible to utilize
the resources of the International Monetary Fund under the Articles of
Agreement thereof, or (iii) the international monetary reserves of any Relevant
Country shall have become subject to any lien.
(c) Notwithstanding anything contained in Section 10.1 or in
subsections 10.2(a) and 10.2(b) to the contrary, if the conditions precedent
set forth herein have been satisfied with respect to the Company, Nextel
Mexico, the Affiliated Parent Guarantors and some, but not all, of the
Borrowing Affiliates (or their related Third Party Guarantors), the Company may
make Attributable Borrowings with respect to those Borrowing Affiliates for
which all conditions precedent have been satisfied (including, without
limitation, satisfaction of the conditions in Section 10.1 relating to such
Borrowing Affiliate's related Parent Guarantors) so long as the events giving
rise to the failure of the other Borrowing Affiliates (or the other Borrowing
Affiliates' Third Party Guarantors) to satisfy the conditions precedent do not,
in the Required Lenders' reasonable judgment, constitute a Material Adverse
Effect with respect to the Company or the Borrowing Affiliates taken as a
whole; provided, further, the existence solely with respect to a Borrowing
Affiliate (other than Nextel Mexico) or a related Third Party Guarantor of a
Material Adverse Effect which does not constitute a Material Adverse Effect
with respect to the Company or the Borrowing Affiliates taken as a whole shall
not prevent Attributable Borrowings with respect to the unaffected Borrowing
Affiliates.
SECTION 11 EVENTS OF DEFAULT
SECTION 11.1 EVENTS OF DEFAULT.
Each of the following events shall constitute an Event of Default
hereunder:
(a) The Company shall have defaulted in the payment of principal
of any Advance payable under any of Credit Documents when and as the same shall
become due and payable.
(b) The Company shall have defaulted in the payment of any
interest on any Advance or any other amount (other than an amount referred to
in clause (a) of this Section 11.1) payable under this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five (5) or more days.
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(c) Any representation or warranty made by the Company or any
other Credit Party herein or in any other Credit Document or otherwise in
connection herewith or therewith shall prove to have been incorrect or
misleading in any material respect as of time it was made or deemed to have
been made or any certificate furnished pursuant to any of the Credit Documents
proves to have been false or misleading in any material respect as of its date.
(d) The Company or any Borrowing Affiliate shall, without the
prior written consent of the Required Lenders, have used the proceeds of any
Advance for a purpose other than that specified in Section 2.9 hereof.
(e) Any Credit Party shall fail to observe or perform any
covenant, condition or agreement covered (whether directly or by
cross-reference) in Sections 8.7(b), 8.11, 8.14 and 8.15 and Section 9 of this
Agreement attributed to it.
(f) The Company or any other Credit Party shall have failed to
perform or comply with any other term, obligation or covenant contained in any
of the Credit Documents to which it is a party or which is attributed to it
(other than those specified above) and such failure shall have continued
unremedied for thirty (30) days after written notice thereof has been given by
the Administrative Agent.
(g) Any Governmental Approval necessary to enable the Company or
any other Credit Party to comply with its obligations under the Operative
Documents shall have been revoked, suspended, withdrawn, withheld, terminated,
modified or restricted and such revocation, termination, withdrawal,
suspension, modification, withholding or cessation could reasonably be expected
to have a Material Adverse Effect, or any proceeding which could reasonably be
expected to have a Material Adverse Effect shall have been commenced by or
before any Governmental Authority for the purpose of so revoking, terminating
withdrawing, suspending, modifying or withholding any such Governmental
Approval such proceeding shall not have been contested within ten (10) Business
days by proper proceedings and dismissed or stayed within thirty (30) days, or
notice shall have been given by such Governmental Authority for such purpose
and shall have remained uncontested for ten (10) Business Days.
(h) Any License granted in favor of an Affiliated Credit Party, or
any license or concession part thereof which, in the reasonable opinion of the
Required Lenders, shall have been terminated, revoked, suspended, withdrawn,
withheld, or adversely modified or restricted which termination, revocation,
suspension or such other action would reasonably be expected to have a Material
Adverse Effect or a proceeding shall have been initiated by or before, or any
action shall have been taken by a court of competent jurisdiction, or other
Governmental Authority which in the reasonable opinion of the Required Lenders,
is likely to result in the cancellation, non-renewal or adverse modification of
any one or more Licenses, radio channels authorized under the Licenses or
Governmental Approvals held by any Affiliated Credit Party which cancellation,
non-renewal or adverse modification could reasonably be expected to have a
Material Adverse Effect.
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(i) It shall have become unlawful for (i) the Company or any
Borrowing Affiliate to perform any payment obligation under the Credit
Documents or (ii) any Parent Guarantor to perform its obligations under its
Parent Guaranty or its Pledge Agreement.
(j) Any Credit Party shall have failed to pay money due under any
other agreement or document evidencing, securing, guarantying or otherwise
relating to Indebtedness of such Credit Party outstanding in the aggregate
principal amount equal to or greater than $5,000,000, or there shall have
occurred any other event of default or breach on the part of such Credit Party
under any such agreement or document, the effect of which is to accelerate or
to permit the acceleration of the maturity of such Indebtedness.
(k) The issuance of any final arbitration award, judgment or
decree which is not subject to appeal, or any award, judgment or decree shall
not have been appealed within thirty (30) days from the date thereof, or a fine
or penalty aggregating for all such cases in excess of (i) with respect to the
Company, $5,000,000, or its equivalent in any currency, and (ii) with respect
to the Affiliated Credit Parties other than the Company taken as a whole,
$5,000,000, or its equivalent in any currency, shall have been entered against
any Affiliated Credit Party and not paid and discharged, dismissed or stayed
within 30 days.
(l) Any Credit Party shall have made an assignment for the benefit
of the creditors, filed a petition in bankruptcy, been adjudicated insolvent,
petitioned or applied to any tribunal for the appointment of a receiver,
custodian, or any trustee for it or a substantial part of its assets, or shall
have commenced any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect, or such Credit Party
shall have taken any corporate action to authorize any of the foregoing
actions; or there shall have been filed any such petition or application, or
any such proceeding shall have been commenced against it, that remains
undismissed for a period of sixty (60) days or more; or any order for relief
shall have been entered in any such proceeding or any such Credit Party, by any
act or omission, shall have indicated its consent to, approval of or
acquiescence in any such petition, application or proceeding; or the
appointment of a custodian, receiver or any trustee for it or any substantial
part of any of its properties, or shall have suffered any custodianship,
receivership or trusteeship to continue undischarged for a period of sixty (60)
days or more.
(m) Any Credit Party shall become unable, admit in writing or fail
generally to pay its debts as they become due.
(n) Any Credit Party shall have concealed, removed or permitted to
be concealed or removed, any part of its property, with intent to hinder, delay
or defraud its creditors or any of them or made or suffered a transfer of any
of its property that may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law; or shall have made any transfer of its property to
or for the benefit of a creditor at a time when other creditors similarly
situated have not been paid, or shall have suffered or permitted, while
insolvent, any creditor to obtain a Lien upon any
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of its property through legal proceedings or distraint that is not vacated
within sixty (60) days from the date thereof.
(o) Any Governmental Authority shall have taken any action to
condemn, seize, requisition, nationalize or otherwise appropriate any portion
of the properties or assets of any Credit Party (without payment of adequate
compensation), or shall have taken any action to dispute the management of such
Credit Party or to curtail such Credit Party's authority to conduct its
business, which prevents any Credit Party from fulfilling its obligations under
any of the Credit Documents.
(p) The Collateral Agent shall fail at any time to have a valid
and perfected Lien on, subject to no prior or equal Liens other than Permitted
Liens, any portion of the Collateral other than pursuant to a failure by the
Collateral Agent.
(q) [Reserved].
(r) [Reserved].
(s) The termination of any Plan or the institution by the PBGC of
proceedings for the involuntary termination of any Plan, that, in either case,
could reasonably be expected to result in a liability on the part of the
Company or any Borrowing Affiliate to the PBGC in excess of $5,000,000.
(t) The occurrence of any event or condition that results or could
reasonably be expected to result in a material "accumulated funding deficiency"
under Section 412 of the Code with respect to any Plan.
(u) The failure by any Affiliated Credit Party to make required
contributions, in accordance with the applicable provisions of ERISA, to each
of the Plans maintained or hereafter established or assumed by it where such
failure could reasonably be expected to have a Material Adverse Effect.
(v) There shall have occurred an Event of Abandonment or any
similar event shall have occurred with respect to the Nextel Argentina system
or the Nextel Brazil system.
(w) The Company shall have ceased to own, free of any liens (other
than Liens arising under the Credit Documents), and maintain, directly or
indirectly, the percentages of the outstanding capital stock of the Borrowing
Affiliates specified in Schedule 11.1(w) hereto.
(x) The Company shall have ceased to have and to exercise actual
control of the day to day operations of any of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or Nextel Brazil.
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(y) This Master Equipment Financing Agreement, the Financing Note,
any Parent Guaranty, any Borrowing Affiliate Guaranty, the Security Documents,
or any other Credit Document shall, at any time after their respective
execution and delivery, and for any reason, shall be declared null and void, or
be revoked or terminated, or the validity or enforceability thereof or hereof
shall be contested by any Credit Party or any Credit Party shall deny that it
has any or further liability thereunder or hereunder as the case may be.
(z) Any event constituting a default or event of default which
would permit acceleration under the Nextel Argentina Facility or the Nextel
Brazil Facility as each of the same is in effect on the date hereof or as
amended with the consent of the Required Lenders.
(aa) The occurrence of any Change of Control.
SECTION 11.2 REMEDIES.
(a) Except as described in the immediately succeeding sentence and
in Section 11.2(l), if an Event of Default described in subsections 11.1(1),
(n), (o) and (p) hereof with respect to the Company or any other Credit Party
shall have occurred, then (i) the Commitments shall automatically be terminated
and the obligation of the Lenders shall forthwith terminate, and (ii) the
entire unpaid principal amount of the Advances hereunder shall automatically
and immediately become due and payable together with all interest accrued and
unpaid thereon and all other amounts payable hereunder to be forthwith due and
payable without presentment, demand, test or further notice of any kind, all of
which are hereby expressly waived by the Company. Subject to Section 11.2(l),
if any other Event of Default shall have occurred, then at any time thereafter,
if any such event shall then be continuing, the Required Lenders or the
Administrative Agent may, by written notice to the Company, (i) declare the
Commitments to be terminated whereupon the obligation of the Lenders to make or
maintain the Advances hereunder shall forthwith terminate, and (ii) declare the
entire unpaid principal amount of the Advances, all interest accrued and unpaid
thereon and all other amounts payable hereunder to be forthwith due and payable
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Company. Upon the occurrence of any
Event of Default, the Lender Parties shall have, in addition to any other
rights and remedies contained in this Agreement and the other Credit Documents,
all of the rights and remedies of a secured party under the laws of the United
States and the laws of the Relevant Countries or other applicable laws, all of
which rights and remedies shall be cumulative and non-exclusive, to the extent
permitted by law.
(b) In addition to such remedies as are provided for in this
Agreement and the other Credit Documents, the Lender Parties' remedies upon the
occurrence and during the continuance of an Event of Default shall, if the
Company fails to repay Advances pursuant to paragraph (l) below, include (i) a
right to apply or require the Company to apply for any necessary orders or
licenses in connection with the operation or abandonment of any relevant
System, the related Telecommunications Business or any part thereof; and (ii)
to the extent permitted by law, a right to have a receiver appointed by a court
of competent jurisdiction in order to manage, protect and preserve any relevant
System, the related Telecommunications Business and all other equipment,
property and other collateral and to continue the operation of the business of
the Company, and to
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collect the revenues and profits thereof and apply the same to the payment of
all expenses and other charges of such receivership until the sale or other
final disposition of the Collateral, including, without limitation, the
Systems, the Telecommunications Businesses and such equipment, property and
assets.
(c) The Company agrees, in case an Event of Default shall be
existing and upon the Lender Party's request, to pay all of such Lender Party's
costs of collection of all amounts due, and enforcement of all rights
hereunder, including, without limitation, reasonable attorney's fees and legal
expenses.
(d) The Collateral Agent may, upon the occurrence and during, the
continuance of an Event of Default, without demand and without advertisement or
notice, all of which the Credit Parties waive at any time or times, sell and
deliver, any or all Collateral (given by a Credit Party with respect to the
relevant Borrowing Affiliate) held by or for it at public or private sale, for
cash, upon credit, or otherwise, at such prices and upon such terms as the
Collateral Agent deems advisable, in its sole discretion and/or collect or
enforce the collection of, the Collateral; provided, however that method,
manner, time, place and terms of any sale must be commercially reasonable and
the Collateral Agent shall make a reasonable attempt to receive fair market
value for any Collateral subject to such sale. In addition to all other sums
due to the Collateral Agent, the Company shall pay the Collateral Agent all
reasonable costs and expenses incurred by the Collateral Agent including,
without limitation, attorney's fees and court costs, to obtain, liquidate
and/or enforce payment of Collateral obligations or in the prosecution or
defense of any action or proceeding against the Collateral Agent in connection
with any matter arising out of or connected with the Credit Documents or the
Collateral.
(e) In connection with the enforcement by the Lender Parties of
any remedies available to them as a result of any Event of Default, the Credit
Parties shall join and cooperate fully with the Collateral Agent and with any
receiver referred to above and with the successful bidder or bidders at any
foreclosure sale when any of these entitles files an application (including,
without limitation, the furnishing of any additional information that may be
required in connection with such application), with any necessary Governmental
Authorities, requesting their prior approval of (i) the operation or
abandonment of all or any portion of the Systems (or any one of them) or the
Telecommunications Businesses and (ii) the assignment or transfer to such
entity of all licenses, authorizations and permits issued to the Company or any
other Credit Party by such Governmental Authorities with respect to the
Systems, the Telecommunications Businesses and the operation thereof.
(f) In connection with the foregoing remedies, the Credit Parties
shall take such further actions and execute all such instruments as the
Collateral Agent or the Required Lenders deem necessary. The Company agrees,
for itself and on behalf of the other Credit Parties, that the Collateral Agent
or the Required Lenders may enforce any obligations of the Credit Parties as
set forth in this Agreement and the other Credit Documents by an action for
specific performance.
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(g) The Lender Parties may (but shall not be obligated to) make
advances to preserve, protect or obtain any of the Collateral, and all such
advances shall become part of the obligations owing to the Lender Parties
hereunder and shall be repayable to the Lender Parties with interest thereon
from the date of such advance until paid at the rate per annum of 2% above the
average interest rate applicable (including the Applicable Margin thereon) to
the Financing Note on the date of such advance.
(h) [Reserved].
(i) All moneys received by the Collateral Agent pursuant to any
right given or action taken under Section 11 of this Agreement shall be applied
as follows:
FIRST - To the reimbursement to the Lender Parties of all
reasonable expenses and costs of litigation and of any proceedings resulting in
the collection of such moneys, including, without limitation, attorney's fees,
receivership, collection, maintenance, improvements and other acts of
administration and sale of properties;
SECOND - To the payment of the unpaid principal of and
interest on any Advance which shall have become due and payable and other fees,
costs and expenses which the Company is required to pay from time to time to
the Lender Parties under or pursuant to this Agreement or any other Credit
Document, as well as all other obligations, covenants, undertakings and
liabilities of the Company to the Lender Parties arising out of or in
connection with this Agreement or any other Credit Document, which shall have
become due and payable in such order as the Lenders may decide; and
THIRD - The balance, if any, shall be delivered and paid to
the Company.
(j) In addition to their rights with respect to the Collateral
hereunder, upon the occurrence of an Event of Default, the Lender Parties may
seek payment of the outstanding obligations from the Parent Guarantors or the
Borrowing Affiliates. The Lender Parties shall not, however, proceed to
liquidate the Collateral hereunder and under the Parent Guaranties and the
Borrowing Affiliate Guaranties in excess of the amount which the Required
Lenders reasonably determines will be necessary to satisfy the outstanding
obligations which have become due and payable, provided, that the Lender
Parties may continue so to liquidate until all outstanding obligations which
have become due and payable have been satisfied in full.
(k) The Agents may exercise any and all of their remedies under
the Security Documents, the Parent Guaranties and the Borrowing Affiliate
Guaranties contemporaneously or separately from the exercise of any other
remedies hereunder or with respect to any Collateral.
(l) If an Event of Default occurs with respect to any Credit Party
other than the Company, Nextel Mexico, the Affiliated Parent Guarantors and the
Supplemental Credit Parties, then the Required Lenders and the Administrative
Agent's exercise of the rights and remedies set forth above shall be limited to
the affected Credit Party and related Borrowing Affiliate, and the
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Required Lenders or the Administrative Agent may, by written notice to the
Company, (i) reduce the Attributable Borrowing Sublimit of the relevant
Borrowing Affiliate and (ii) declare the Advances to the extent they consist of
Attributable Borrowings of the relevant Borrowing Affiliate (which shall be the
defaulting Borrowing Affiliate or the Borrowing Affiliate whose Third Party
Guarantor is in default), and the accrued and unpaid interest thereon, to be
forthwith due and payable without presentment, demand, protest, or further
notice of any kind; provided, that if such Event of Default relates to a Third
Party Guarantor, the rights and remedies of the Lenders and the Administrative
Agent with respect to acceleration of Indebtedness or termination of
commitments are subject to the provisions of Section 8.16.
SECTION 11.3 CUMULATIVE RIGHTS.
No failure or delay on the part of any Lender Party in exercising any
right, power or remedy accruing to it upon any breach or default of the Company
under any of the Credit Documents shall impair any such right, power or remedy
nor shall it be construed as a waiver of any such breach or default thereafter
occurring, nor shall a waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring, nor
shall any single or partial exercise of any such right or power preclude any
other or further exercise thereof or the exercise of any other right or power
hereunder. To the fullest extent permitted by law, all remedies, either under
the Credit Documents or by law otherwise afforded the Lender Parties shall be
cumulative and not alternative.
SECTION 11.4 WAIVER OF DEMAND; SETOFF.
DEMAND, PRESENTMENT, PROTEST AND NOTICE OF DEMAND, PRESENTMENT,
PROTEST AND NONPAYMENT ARE HEREBY WAIVED TO THE EXTENT PERMITTED BY LAW BY THE
CREDIT PARTIES. THE CREDIT PARTIES ALSO WAIVE THE BENEFIT OF ALL RIGHTS OF
SETOFF AND ALL VALUATION, APPRAISAL AND EXEMPTION LAWS TO THE EXTENT PERMITTED
BY LAW.
SECTION 11.5 WAIVER OF NOTICE.
IN THE EVENT OF AN EVENT OF DEFAULT, THE CREDIT PARTIES HEREBY WAIVE
TO THE EXTENT PERMITTED BY LAW ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND
PRIOR TO THE EXERCISE BY THE CREDITOR OF ITS RIGHTS TO REPOSSESS ANY COLLATERAL
WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON ANY COLLATERAL
WITHOUT PRIOR NOTICE OR HEARING. EACH OF THE CREDIT PARTIES ACKNOWLEDGES THAT
IT HAS BEEN ADVISED BY COUNSEL OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION
AND THIS AGREEMENT.
SECTION 12
THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
In order to expedite the transactions contemplated by this Agreement,
Motorola Credit Corporation is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders (for purposes of this Section 12,
the Administrative Agent and the Collateral Agent
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are referred to collectively as the "Agents"). Each of the Lenders and each
assignee of any such Lender, hereby irrevocably authorizes the Agents to take
such actions on behalf of such Lender or assignee and to exercise such powers
as are specifically delegated to the Agents by the terms and provisions hereof
and of the other Credit Documents, together with such actions and powers as are
reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders, without hereby limiting any implied authority, (a)
to receive on behalf of the Lenders all payment of principal of and interest on
the Advances and all other amounts due to the Lenders hereunder, and promptly
to distribute to each Lender its proper share of each payment so received; (b)
to give notice on behalf of each of the Lenders to the Company of any Event of
Default specified in this Agreement of which the Administrative Agent has
actual knowledge acquired in connection with its agency hereunder; and (c) to
distribute to each Lender copies of all notices, financial statements and other
materials delivered by the Company or any other Credit Party pursuant to this
Agreement or the other Credit Documents as received by the Administrative
Agent. Without limiting the generality of the foregoing, the Agents are hereby
expressly authorized to execute any and all documents (including releases) with
respect to the Collateral and the rights of the parties secured thereby with
respect thereto, as contemplated by and in accordance with the provisions of
this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or willful misconduct,
or be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by
the Company or any other Credit Party of any of the terms, conditions,
covenants or agreements contained in any Credit Document. The Agents shall not
be responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Credit
Documents, instruments or agreements. The Agents shall in all cases be fully
protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the Lenders. Each Agent shall, in the
absence of knowledge to the contrary, be entitled to rely on any instrument or
document believed by it in good faith to be genuine and correct and to have
been signed or sent by the proper person or persons. Neither the Agents nor
any of their respective directors, officers, employees or agents shall have any
responsibility to the Company or any other Credit Party on account of the
failure of or delay in performance or breach by any Lender or an Issuing Bank
of any of its obligations hereunder or to any Lender or an Issuing Bank on
account of the failure of or delay in performance or breach by any other Lender
or an Issuing Bank or the Company or any other Credit Party of any of their
respective obligations hereunder or under any other Credit Document or in
connection herewith or therewith. Each of the Agents may execute any and all
duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
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The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders
and Company. Upon any such resignation, the Required Lenders shall have the
right to appoint a successor. If no successor shall have been so appointed by
the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Agent gives notice of its resignation, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent which shall be a
bank with an office in New York, New York, having a combined capital and
surplus of at least $500,000,000 or an Affiliate of any such bank. Upon
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.5 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
With respect to the Advances made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its aggregate Commitment hereunder) of
any expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services
rendered on behalf of the Lenders, that shall not have been reimbursed by the
Company and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as Agent or any of them in any way
relating to or arising out of this Agreement or any other Credit Document or
any action taken or omitted by it or any of them under this Agreement or any
other Credit Document, to the extent the same shall not have been reimbursed by
the Company or any other Credit Party; provided that no Lender shall be liable
to an Agent or any such other indemnified person for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent or any of its directors,
officers, employees or agents. Each Lender agrees to reimburse each of the
Issuing Banks and their directors, employees and agents, in each case, to the
same extent and subject to the same limitations as provided above for the
Agents.
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Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Credit Document, any related
agreement or any document furnished hereunder or thereunder.
The Collateral Agent shall be deemed to have exercised reasonable care
in the custody and preservation of any of the Collateral in its possession if
it takes such action for that purpose as the Company requests in writing, but
failure of the Collateral Agent to comply with any such request shall not of
itself be deemed a failure to exercise reasonable care, and no failure of the
Collateral Agent to preserve or protect any rights with respect to such
Collateral against prior parties, or to do any act with respect to the
preservation of such Collateral not so requested by the Company, shall be
deemed a failure to exercise reasonable care in the custody or preservation of
such Collateral.
SECTION 13 MISCELLANEOUS
SECTION 13.1 WAIVER OF SOVEREIGN IMMUNITY.
To the extent that the Credit Parties or any of their respective
assets has or hereafter may acquire any right to immunity from suit, setoff,
legal proceedings generally, attachment prior to judgment, attachment in aid of
execution or other attachment or execution of judgment on the rounds of
sovereignty or otherwise, each of the Credit Parties hereby irrevocably waives
such rights to immunity for itself and its assets in respect of its obligations
arising under or relating to any of the Credit Documents or any related
documentation.
SECTION 13.2 VENUE FOR SUIT.
The Credit Parties and the Lender Parties each irrevocably hereby
expressly waives all right to object to jurisdiction or execution in any legal
action or proceeding relating to this Agreement, the Financing Note or any
other Credit Document which it may now or hereafter have by reason of its
domicile or by reason of any subsequent or other domicile and hereby
irrevocably consents that any legal action, suit or proceeding arising out of
or relating to any of the Credit Documents and any other document or instrument
required to be executed in relation thereto may be instituted in the federal
courts of the United States District Court of the Southern District of New York
and the courts of the State of New York, and by execution and delivery of this
Agreement, each of the Credit Parties and the Lender Parties submits to and
accepts and consents with regard to any such action or proceeding for itself
and in respect of its properties and assets, generally and unconditionally, the
jurisdiction of any such court. Each of the Credit Parties hereby waives any
objection it may now or hereafter have to the laying of the venue of any such
action, suit or proceeding, and further waives any claim that any such action,
suit or proceeding brought in any of the aforesaid courts has been brought in
any inconvenient forum.
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Each of the Credit Parties hereby irrevocably designates, appoints and
empowers CT Corporation System with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, and successors as the designee, appointee and agent of such Credit
Party to receive, accept and acknowledge, for and on behalf of such Credit
Party and its properties, service of any and all legal process, summons,
notices and documents which may be served in such action, suit or proceeding
relating to the Financing Note or this Agreement or any other Credit Document
in the case of the courts of the United States District Court of the Southern
District of New York or of the courts of the State of Illinois, which service
may be made on any such designee, appointee and agent in accordance with legal
prescribed for such courts. Each of the Credit Parties agrees to take any and
all action necessary to continue such designation in full force and effect and
should such designee, appointee and agent become unavailable for this purpose
for any reason, the relevant Credit Party will forthwith irrevocably designate
a new designee, appointee and agent with offices in New York, New York, which
shall irrevocably agree to act as such, with the powers and for purposes
specified in this Section 13.2. Each of the Credit Parties further irrevocably
consents and agrees to service of any and all legal process, summons, notices
and documents out of any of the aforesaid courts in any such action, suit or
proceeding relating to the Financing Note or this Agreement or any other Credit
Document delivered to such Credit Party in accordance with this Section 13.2 or
to its then designee, appointee or agent for service. If service is made upon
such designee, appointee and agent, a copy of such process, summons, notice or
document shall also be provided to the relevant Credit Party by registered or
certified mail, or overnight express air courier, provided that failure to
provide such copy to the relevant Credit Party shall not impair or affect in
any way the validity of such service or any judgement rendered in such action
or proceedings. Each of the Credit Parties agrees that service upon such
Credit Party or any such designee, appointee and agent as provided for herein
shall constitute valid and effective personal service upon such Credit Party
with respect to matters contemplated in this Section 13.2 and that the failure
of any such designee, appointee and agent to give any notice of such service to
such Credit Party shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall limit or be construed to limit the rights of the Lender
Parties to commence proceedings against any Credit Party in any other venue
where assets of such Credit Party may be found.
SECTION 13.3 GOVERNING LAW.
THIS AGREEMENT AND THE FINANCING NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (EXCLUDING ALL
CHOICE-OF-LAW AND CONFLICTS-OF-LAWS RULES).
SECTION 13.4 SEVERABILITY OF PROVISIONS.
If any one or more of the provisions contained in this Agreement or
any documents executed in connections herewith shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired.
SECTION 13.5 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the
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Company, the Lender Parties and their respective successors and assigns,
provided, that the Company shall not have the right to assign or transfer its
rights or obligations hereunder except with the prior written consent of the
Required Lenders and, absent a continuing Event of Default, the Lenders shall
not have the right, following the Syndication, to assign their respective
obligations hereunder without the prior written consent of the Company (not to
be unreasonably withheld or delayed.)
(b) The Initial Lender may assign its rights and obligations under
this Agreement (including all or a portion of the Commitment and the Advances
at the time owing to it) without the consent of the Company (the
"Syndication"). The Initial Lender may request the Company and the Borrowing
Affiliates to assist in the Syndication as contemplated by this Section.
(c) In addition to and without limiting the foregoing, each Lender
may, without the consent of the Company, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of the Lender's
rights and obligations under this Agreement (including all or a portion of the
Commitment and the Advances owing to it); provided that, in the case of
participations under this subsection 13.5(c), (i) the Lender's obligations
under this Agreement shall remain unchanged, (ii) the Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Company shall continue to deal solely and directly
with the Lender in connection with the Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that the Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement.
(d) The Affiliated Credit Parties agree to cooperate with the
Initial Lender in connection with any syndication. Such cooperation will
include, if requested by the Initial Lender, (i) making senior officers of the
Company available for a meeting with prospective assignees, the Initial Lender
and its agents, and (ii) providing such other assistance as may be reasonably
requested by the Initial Lender and such agents (including, without limitation,
providing information to and responding to questions from prospective assignees
with respect to the operations, business plans and other matters relating to
the Company's and each other Affiliated Credit Party's business on a timely
basis and in any manner reasonably requested by the Initial Lender).
SECTION 13.6 ENTIRE AGREEMENT; AMENDMENTS.
(a) This Agreement, the documents referred to herein and those
signed contemporaneously herewith constitute the entire agreement of the
parties with respect to the subject matter hereof and shall supersede any prior
expressions of intent or understanding with respect to this transaction.
(b) No waiver of any provision of this Agreement or any other
Credit Document or consent to any departure by the Company or any other Credit
Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph subsection 13.6(c) below, and then
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such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice or demand on any Credit Party in any
case shall entitle such Credit Party to any other or further notice or demand
in similar or other circumstances.
(c) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Advance, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Advance, without the prior
written consent of each Lender affected thereby, (ii) change or extend the
Commitments or decrease or extend the date for payment of the fees of any
Lender payable under Section 2.6 without the prior written consent of such
Lender, or (iii) amend or modify the provisions of Section 2.12 or 13.5, the
provisions of this Section, the definition of the term "Required Lenders",
increase the total Commitments or release any Guarantor or all or any
substantial part of the Collateral, without the prior written consent of each
Lender; provided, further that no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or the
Collateral Agent, hereunder or under any other Credit Document without the
prior written consent of the Administrative Agent or the Collateral Agent, as
applicable.
SECTION 13.7 NOTICES.
All communications and notices provided for hereunder shall be in
writing and shall be personally delivered or transmitted by postage prepaid
registered mail (airmail if international) or by telefax as follows:
To the Company: Nextel International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
North Point
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Administrative Agent: Motorola Credit Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to: Motorola, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Law Department, Global Finance Group
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Vendor: Motorola, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Director - iDEN Infrastructure
▇▇ ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇, Controller - iDEN
Infrastructure
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Lenders: At the address specified on the signature pages
hereto or in the applicable Assignment Agreement or
as otherwise specified in writing to the Company
and the Administrative Agent by such Lender.
Except as otherwise specified herein, all notices shall be deemed duly
given on the date of receipt, if personally delivered or transmitted by
telefax, and the date 5 days after posting if mailed.
SECTION 13.8 RIGHT OF SET-OFF.
The Lender Parties shall, to the fullest extent permitted by
applicable law, have the right to apply and all amounts on deposit or on
account with it or with any of its branches, Subsidiaries or affiliates
(general or special, time or demand, matured or unmatured, in whatever
currency) in reduction of amounts past due (whether such amounts became due at
schedule maturity, by acceleration or otherwise) under the Credit Documents.
SECTION 13.9 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies thereof, each
signed by less than all, but together signed by all, of the parties hereto.
SECTION 13.10 CONFIDENTIALITY.
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Each of the Company, the Borrowing Affiliates and the Lender Parties
hereby agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its Affiliates (on a
need to know basis), directors, offices, employees and agents, including,
without limitation, accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (f) subject to the execution and delivery of an agreement
containing provisions substantially the same as those of this Section 13.10, to
any assignee of or participant in, or any prospective assignee of or
participant in, any of its rights or obligations under this Agreement, (g) with
the consent of the other parties hereto, or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section 13.10 or (ii) becomes available to such party on a nonconfidential
basis from a source other than the other parties hereto.
For the purposes of this Section 13.10, "Information" means all
information received from any of the parties hereto relating to any of the
Credit Parties, the Lender Parties or their respective businesses, other than
any such information that is available to the parties hereto on a
nonconfidential basis prior to disclosure by any party hereto; provided that,
in the case of information received from any party hereto after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section 13.10 shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 13.11 TERM OF AGREEMENT.
This Agreement shall continue in full force and effect, and be binding
upon the Company, until all of the Obligations have been fully and indefeasibly
paid and performed whereupon this Agreement shall terminate; provided, however,
if the initial Advance has not been made by February 26, 1999, this Agreement
shall terminate. Notwithstanding the foregoing, all the indemnification
provisions shall survive and all other provisions which by their terms survive
termination shall so survive.
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IT WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective duly authorized signatories as of the day and
year first written above.
COMPANY: NEXTEL INTERNATIONAL, INC.
By: /s/ HENG-PIN KIANG
-------------------
Name: Heng-Pin Kiang
------------------
Title: Vice-President
-----------------
INITIAL LENDER: MOTOROLA CREDIT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: Vice President
-----------------
ADMINISTRATIVE AGENT: MOTOROLA CREDIT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: Vice President
-----------------
COLLATERAL AGENT: MOTOROLA CREDIT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------
Title: Vice President
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[SIGNATURE PAGE TO MASTER EQUIPMENT FINANCING AGREEMENT]