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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): SEPTEMBER 9, 1999
NEXTEL PARTNERS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
DELAWARE 333-78459 91-1930918
(STATE OR OTHER JURISDICTION (COMMISSION (IRS EMPLOYER
OF INCORPORATION) FILE NUMBER) IDENTIFICATION NO.)
4500 CARILLON POINT
KIRKLAND, WASHINGTON 98033
(425) 828-1713
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ITEM 5. OTHER EVENTS.
Nextel Partners Operating Corp., a Delaware corporation ("NPOC") and
wholly owned subsidiary of Nextel Partners, Inc. ("Nextel Partners"), is engaged
in the construction and operation of a digital wireless communications network
(the "Network") utilizing (i) specialized mobile radio licenses presently owned
by an indirect, wholly-owned subsidiary of Nextel Communications, Inc.
("Nextel"), (ii) the Nextel brand name, (iii) Nextel's national switching
infrastructure and (iv) the "integrated Dispatch Enhanced Network," or iDEN,
technology developed by Motorola, Inc., a Delaware corporation ("Motorola"). To
enhance its ability to provide customers with greater geographic coverage,
Nextel entered into a contractual joint venture with Nextel Partners and its
wholly owned subsidiaries, including NPOC (the "Joint Venture Agreement").
Pursuant to the Joint Venture Agreement, Nextel Partners and NPOC have elected
to expand and market Nextel's iDEN wireless telecommunications services in
several additional territories (the "Expansion Territory").
On September 9, 1999, NPOC entered into an Expansion Territory Asset
Transfer and Reimbursement Agreement (the "Transfer Agreement") with Nextel WIP
Corp., a Delaware corporation ("NWIP"). Pursuant to the Transfer Agreement, NWIP
transferred to NPOC, and NPOC acquired, certain assets, properties, rights and
interests to be used in connection with the construction and operation of NPOC's
iDEN-based wireless communications system in the Expansion Territory for
aggregate consideration of $10,593,033. A copy of the Transfer Agreement is
attached hereto as Exhibit 10.1 and incorporated by reference herein.
In order to finance a portion of the capital expenditures associated
with the original build-out of the Network and the ongoing working capital and
general corporate needs of Nextel Partners and NPOC, Nextel Partners and NPOC
entered into a Credit Agreement (the "Credit Agreement") with DLJ Capital
Funding, Inc., as the syndication agent ("DLJ Capital") for the Lenders (as
defined below), the Bank of New York, as the documentation agent for the
Lenders, and Donaldson, Lufkin & Jenrette Securities Corporation, as lead
arranger and sole book running manager ("DLJ") dated as of January 29, 1999
pursuant to which various financial institutions (the "Original Lenders")
provided to NPOC the following:
- Term loans in an original principal amount of $175,000,000;
- A revolving loan commitment, in a maximum aggregate principal
amount of $100,000,000; and
- A letter of credit commitment providing for the issuance of letters
of credit in an amount not to exceed $10,000,000.
To accomplish the build-out and operation of the Network in the
Expansion Territory, Nextel Partners and NPOC entered into the following
capital-raising activities:
- Nextel Partners issued shares of its Series C Preferred Stock to
NWIP having an aggregate implied value of approximately $8,800,000
in exchange for the contribution by NWIP to Nextel WIP Expansion
Corp. of certain licenses and an extension of an operating
agreement governing the build-out of the Network in the Expansion
Territory (the "Additional Nextel Contribution");
- Nextel Partners issued shares of its Series A Preferred Stock to
Motorola in exchange for the provision by Motorola to Nextel
Partners of credit in the amount of $3,600,000 which can be used
against the future purchase price of Motorola's infrastructure
equipment to be used in connection with the build-out of the
Network (the "Additional Motorola Contribution");
- Nextel Partners received initial cash equity contributions of (i)
approximately $4,300,000 from the issuance of its Series C
Preferred Stock to NWIP and (ii) approximately $12,400,000 from
the issuance of its Series A Preferred Stock to certain additional
investors, together with
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irrevocable binding commitments from NWIP and the additional
investors to make certain subsequent cash equity contributions
(the "Additional Investors Contribution"); and
- All cash and non-cash proceeds received by Nextel Partners from
the Additional Nextel Contribution, the Additional Motorola
Contribution and the Additional Investors Contribution was
contributed by Nextel Partners to NPOC as an equity contribution.
In addition to the capital-raising activities described above, on September 9,
1999, Nextel Partners and NPOC entered into an Amended and Restated Credit
Agreement (the "Amended and Restated Credit Agreement") among NPOC, various
financial institutions as lenders, DLJ Capital, the Bank of New York as
documentation agent for the lenders, the Bank of Montreal as the administrative
agent for the lenders and DLJ as lead arranger and sale book running manager,
pursuant to which the parties agreed to amend and restate in its entirety the
Credit Agreement to, among other things, obtain from certain of the Lenders an
additional term loan commitment in the maximum aggregate principal amount of
$150,000,000. NPOC is exposed to changes in interest rates under the term loan
facility. For every 1/8% change in the underlying interest rate associated with
the term loan, annual interest expense changes by approximately $187,500.
Borrowings under the Amended and Restated Credit Agreement are secured by a
first priority pledge of all assets of Nextel Partners and its subsidiaries and
a pledge of their capital stock. The Amended and Restated Credit Agreement
contains customary financial and other covenants for the wireless industry. In
addition, the Amended and Restated Credit Agreement contains covenants requiring
Nextel Partners and NPOC to maintain certain defined financial ratios and meet
operational targets including service revenues, subscriber units and network
coverage. A copy of the Amended and Restated Credit Agreement is attached hereto
as Exhibit 10.2 and incorporated by reference herein.
THE FOREGOING SUMMARIES OF THE TRANSFER AGREEMENT AND THE AMENDED AND
RESTATED CREDIT AGREEMENT ARE QUALIFIED IN THEIR ENTIRETY BY REFERENCE TO THE
FULL AGREEMENTS WHICH ARE ATTACHED HERETO AS EXHIBITS.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(C) EXHIBITS.
10.1 Expansion Territory Asset Transfer and Reimbursement Agreement
between Nextel WIP Corp. and Nextel Partners Operating Corp.
dated as of September 9, 1999.
10.2 Amended and Restated Credit Agreement, dated as of
September 9, 1999 (amending and restating the Credit
Agreement, dated as of January 29, 1999) among Nextel Partners
Operating Corp., as the Borrower, Various Financial
Institutions, as the Lenders, DLJ Capital Funding, Inc., as
the Syndication Agent for the Lenders, and Bank of Montreal,
as the Administrative Agent for the Lenders.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NEXTEL PARTNERS, INC.
Date: September 24, 1999 By: /s/ John D. Thompson
--------------------------------------
John D. Thompson
Chief Financial Officer and Treasurer
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
10.1 Expansion Territory Asset Transfer and Reimbursement
Agreement between Nextel WIP Corp. and Nextel Partners
Operating Corp. dated as of September 9, 1999.
10.2 Amended and Restated Credit Agreement, dated as of
September 9, 1999 (amending and restating the Credit
Agreement, dated as of January 29, 1999) among Nextel
Partners Operating Corp., as the Borrower, Various
Financial Institutions, as the Lenders, DLJ Capital
Funding, Inc., as the Syndication Agent for the
Lenders, and Bank of Montreal, as the Administrative
Agent for the Lenders.
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EXHIBIT 10.1
EXPANSION TERRITORY ASSET TRANSFER AND REIMBURSEMENT AGREEMENT
Between
NEXTEL WIP CORP.
and
NEXTEL PARTNERS OPERATING CORP.
Dated as of September 9, 1999
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EXPANSION TERRITORY ASSET TRANSFER AND
REIMBURSEMENT AGREEMENT
This EXPANSION TERRITORY ASSET TRANSFER AND REIMBURSEMENT AGREEMENT
(this "Agreement"), dated as of September 9, 1999, is between Nextel Partners
Operating Corp., a Delaware corporation (the "Company"), and Nextel WIP Corp., a
Delaware corporation ("NWIP"). Capitalized terms used in this Agreement, but not
defined herein or in Schedule A attached hereto, have the meanings set forth in
Article 1 of the JV Agreement.
RECITALS
A. Nextel, through its Subsidiaries, operates an iDEN-based wireless
communications system through which it provides wireless communications services
in various markets throughout the United States. To enhance its ability to
provide its customers with greater geographic coverage that is consistent with
its existing service, operations and objectives, Nextel, through NWIP, entered
into a contractual joint venture with NPI and its wholly owned Subsidiaries,
including the Company.
B. The agreement of the parties with respect to the formation and
operation of the contractual joint venture is set forth in the JV Agreement and
various Collateral Agreements.
C. Pursuant to the JV Agreement, NPI and the Company have elected to
expand and market Nextel's iDEN wireless telecommunications services in the
Expansion Territory.
D. NWIP desires to transfer to the Company, and the Company desires to
acquire from NWIP, certain assets, properties, rights and interests to be used
in connection with the construction and operation of the Company's iDEN-based
wireless communications system in the Expansion Territory (the "Business"), all
upon the terms and conditions and in exchange for the consideration set forth
herein.
In consideration of the mutual promises and covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, NWIP and the Company hereby agree as follows:
AGREEMENT
1. TRANSFER OF ASSETS.
1.1 ASSET TRANSFER. On the terms and subject to the provisions
of this Agreement, NWIP hereby transfers, conveys and assigns to the Company,
and the Company hereby purchases, accepts and receives, all of NWIP's right,
title and interest in and to assets and rights described below (the "Assets"):
1.1(a) The owned tangible personal property and equipment used
in or relating to the operation of the Business including but not
limited to base radios, EBTS, combiners, other digital mobile radio
transmission equipment, antennas, antenna dishes, base units,
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GPS units, tower top amplifiers, controller racks, converters,
enclosures and RF distribution racks;
1.1(b) The leases for tangible personal property, the
subscriber agreements, other contracts and commitments, and other
agreements for the purchase or sale of goods or services relating to
the Business as identified on Schedule 1.1(b);
1.1(c) The construction plans, site acquisition plans, RF
design plans and other records and plans relating exclusively to the
Business, customer deposits and prepayments made by customers of the
Business, other payables and receivables of the Business and permits
relating exclusively to the Business; and
1.1(d) The lessee's interest under the leases of real property
(including leases for raw land) located in the Expansion Territory and
used exclusively or acquired to be used exclusively in the Business,
together with any improvements owned by NWIP or the lessee and located
thereon, as identified on Schedule 1.1(d) (the "Leases") subject to
Section 1.3. At the option of the Company, in lieu of a direct
assignment of such leases to the Company, NWIP may assign all of the
Leases to Nextel WIP Lease Corp., a Delaware corporation ("Lease Co.").
To the extent that NWIP is not the holder of the lessee's or
sublessee's interests under the Leases, NWIP will cause such lessees or
sublessees to execute and deliver assignments of the Leases to the
Company or, at the election of the Company, to Lease Co. At the request
of the Company, NWIP will execute or cause to be executed confirmatory
assignments by the holder or holders of the possessory interests under
the Leases being assigned.
1.2 EXCLUDED ASSETS. No assets of NWIP, other than the Assets,
are transferred to the Company under this Agreement. No assets of any
member of the Nextel Group other than NWIP are transferred to the
Company under this Agreement. Additionally, the Assets transferred
under this Agreement specifically exclude any ownership or lease rights
in:
1.2(a) FCC licenses;
1.2(b) Sites and Antenna Sites;
1.2(c) Any assets owned by third parties;
1.2(d) Trademarks, service marks, and all other intellectual
property owned by NWIP, Nextel or any member of the Nextel Group;
1.2(e) Any assets located outside the Territory or Expansion
Territory owned by NWIP, Nextel or any member of the Nextel Group;
1.2(f) Any assets used by NWIP, Nextel or any other member of the
Nextel Group in the Expansion Territory in businesses other than the
Business, including, but not limited to, those used in the operation of
analog based communications services;
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1.2(g) Any leases of real property located in the Expansion
Territory and not identified on Schedule 1.1(d);
1.2(h) Any subscribers and the relevant billing and accounting
records relating to such subscribers in the Expansion Territory. These
subscribers and records will be transferred at a later date and on
terms to be agreed upon by NWIP and the Company. Until that time, any
subscribers in the Expansion Territory will remain subscribers of
Nextel; and
1.2(i) The SMR Management Agreement, by and between Twin Cities
Technologies, Inc. and Pittencrieff Communications, Inc., dated as of
July 1, 1999.
1.3 NONASSIGNABLE RIGHTS.
1.3(a) NONASSIGNABILITY. To the extent that any contract, permit,
right, lease or agreement enumerated in Section 1.1 cannot be validly
assigned, transferred or subleased without the consent or waiver of the
issuer thereof or another party thereto or any third person (including
a government or governmental unit), or if such assignment, transfer or
sublease or attempted assignment, transfer or sublease would constitute
a breach thereof or a violation of any law, decree, order, regulation
or other governmental edict, this Agreement is not an assignment,
transfer or sublease thereof, or an attempted assignment, transfer or
sublease thereof.
1.3(b) NWIP TO USE BEST REASONABLE EFFORTS. NWIP is not obligated
to transfer to the Company any of the Assets described in Section
1.3(a) without first having obtained all necessary consents and
waivers. Upon request of the Company, NWIP shall use its best
reasonable efforts, and the Company shall reasonably cooperate with
NWIP, to obtain any consents and waivers necessary to convey or cause
to be conveyed to the Company or Lease Co. any of the Assets described
in Section 1.3(a). NWIP shall promptly convey to the Company or to
Lease Co. at the Company's election any Assets described in Section
1.3(a) for which NWIP has received the necessary consents and waivers.
NWIP will not be obligated to pay any additional consideration to the
person from whom any consent or waiver is requested unless the Company
requests in writing that NWIP make such payment and the parties agree
how to share that cost.
1.3(c) IF WAIVERS OR CONSENTS CANNOT BE OBTAINED. If, after using
its best reasonable efforts, NWIP is unable to obtain any of the
necessary consents or waivers described in Section 1.3(a), NWIP shall,
as to any particular contract, permit, right, lease or agreement, only
with respect to the current term thereof as of the date of this
Agreement (i) provide to the Company, to the fullest extent possible,
the benefits of any license, permit or approval and of any lease,
contract, license or other agreement or commitment, all as referred to
in Section 1.3(a), and (ii) cooperate in any reasonable and lawful
arrangement designed to provide such benefits to the Company. The
Company shall promptly pay or reimburse NWIP for all costs and expenses
paid by NWIP to the appropriate third party under the terms of such
contract, permit, right, lease or agreement. At the end of the current
term of any such contract, permit, right, lease or agreement, NWIP
shall have no further duties or obligations hereunder with respect to
such licenses,
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permits and approvals and such leases, contracts, licenses and other
agreements and commitments and the failure to obtain any necessary
consent or waiver with respect thereto will not be a breach of this
Agreement.
1.3(d) COMPANY TO PERFORM. To the extent that the Company is
provided, pursuant to this Section 1.3, the benefits of any contract,
permit, right, lease or agreement (each a "Provided Obligation"), the
Company shall perform for the benefit of the issuer thereof or the
other party or parties thereto, the obligations of NWIP or of any other
member of the Nextel Group thereunder or in connection therewith as
such obligations relate to the Business or the Assets. If the Company
fails to perform as required by this Section 1.3(d), NWIP will
thereafter cease to be obligated under this Section 1.3 with respect of
the Provided Obligation that is the subject of the failure to perform
until the earliest of the following: (i) the situation is remedied,
(ii) at the sole option of NWIP, the Company promptly pays or
reimburses NWIP for all costs incurred by NWIP during the period of
failure of performance, or (iii) NWIP's responsibilities with respect
to the Provided Obligation expire under Section 1.3(c). The Company
shall indemnify NWIP and hold it harmless from and against any and all
loss, cost, damage or expense arising from or related to the Company's
failure to perform any Provided Obligation.
2. ASSUMPTION OF LIABILITIES.
2.1 DISCLOSED LIABILITIES. The Company hereby assumes and agrees
to pay, perform and discharge when due the liabilities and obligations of NWIP
and of any other member of the Nextel Group, whether primary or secondary,
absolute or contingent, direct or indirect, that are identified on Schedule 2.1.
2.2 ORDINARY COURSE LIABILITIES. The Company hereby assumes and
agrees to pay, perform and discharge when due the liabilities and obligations of
NWIP and of any other member of the Nextel Group, whether primary or secondary,
absolute or contingent, direct or indirect, that arose or were incurred in the
ordinary course of business consistent with the past practice of the Nextel
Group in connection with the construction, design or operation of an ESMR
Network in the Expansion Territory before the date of this Agreement or that
arise from the ownership or operation of the Assets. If there are any such
liabilities that relate to a particular asset that were not taken into account
in the value of the asset for purposes of the payment under Section 5.1(b), it
will be corrected in the True Up.
2.3 UNDISCLOSED LIABILITIES. Subject to its indemnity rights under
Section 2.4, the Company hereby assumes and agrees to pay, perform and discharge
when due the undisclosed liabilities and obligations of NWIP and of any other
member of the Nextel Group whether primary or secondary, absolute or contingent,
direct or indirect, that arose or were incurred outside the ordinary course of
business (including violations of law and breaches of contract) before the date
of this Agreement and that arise from the ownership or operation of the Assets
(collectively, "Undisclosed Liabilities").
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2.4 LIMITATION ON COMPANY LIABILITY.
2.4(a) The maximum aggregate liability of the Company and its
subsidiaries for Undisclosed Liabilities is $125,000, and NWIP hereby
agrees to defend, indemnify and hold the Company and its subsidiaries
harmless from and against any Undisclosed Liabilities in excess of
$125,000. To make a claim for indemnification under this Section 2.4,
the Company must provide written notice to NWIP, within 180 days after
the date of this Agreement, describing in reasonable detail (to the
extent known) each Undisclosed Liability for which indemnification is
sought, including the nature and amount thereof, all relevant parties
and their relationships to the Assets, and copies of any relevant
documents. Promptly after receiving any additional information about
any claim made hereunder, the Company will forward such information to
NWIP. NWIP shall pay the Company the amount of any such Undisclosed
Liability (in excess of $125,000) in cash within 20 days after receipt
of any such notice. Any dispute under this Section 2.4 shall be
resolved under the dispute resolution procedures set forth in Article
12 of the JV Agreement.
2.4(b) The Company's right of indemnification under this Section
2.4 relates only to Undisclosed Liabilities and is limited to any
claims made before the date that is 180 days from the date of this
Agreement. If any such claim for indemnification is asserted by the
Company, it may be made only in the manner and during the 180-day
period provided in Section 2.4(a). Indemnification may not be sought
under this Section 2.4 for any liabilities or obligations other than
Undisclosed Liabilities. Once the 180-day period expires, this right of
indemnification is then extinguished, and the Company may make no
further claims for indemnification regarding any liabilities (whether
undisclosed or otherwise) relating to the Assets against NWIP or any
other member of the Nextel Group except for continuing claims for
Undisclosed Liabilities for which the Company gave the notice required
by Section 2.4(a) within the 180-day period. If the Company fails to
make a claim for indemnification in compliance with this Section 2.4
within 180 days after the date of this Agreement, then this right of
indemnification will immediately expire, and the Company may make no
claim for indemnification regarding any liabilities (whether
undisclosed or otherwise) relating to the Assets against NWIP or any
other member of the Nextel Group.
2.5 SUBROGATION OF COMPANY. The Company is subrogated to all
rights of NWIP and any other subsidiary of Nextel under any insurance policies
covering any liabilities assumed by the Company under this Article 2 ("Assumed
Liabilities") and with respect to such assumed liabilities, shall be named as an
additional insured under any such policies, and any proceeds of any such
policies that are received by NWIP or any other subsidiary of Nextel in respect
of any such liability shall be held in trust for the benefit of the Company.
NWIP will use its best reasonable efforts to ensure such subrogation of the
Company. The Company may assert any counterclaim of NWIP or of any other
subsidiary of Nextel so long as the counterclaim relates only to the Assets or
the Business and does not relate to any other business of any member of the
Nextel Group in or outside the Expansion Territory or to any assets retained by
any other member of the Nextel Group.
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2.6 LIABILITIES ARISING AFTER THE CLOSING. The Company is
responsible for all liabilities and obligations relating to the Assets, whether
known or unknown, primary or secondary, absolute or contingent, direct or
indirect, that arise or are incurred on or after the date of this Agreement.
3. REPRESENTATIONS AND WARRANTIES.
3.1 ASSETS. NWIP represents and warrants to the Company that as of
the date of this Agreement, it (or, in the case of any leases of real
property constituting Assets, one or more of its affiliates) has good
and marketable title to the Assets free and clear of all Liens other
than Permitted Liens. EXCEPT AS OTHERWISE STATED IN THIS SECTION 3.1,
(i) THE ASSETS ARE TRANSFERRED TO THE COMPANY AS IS, WHERE IS, AND (ii)
NWIP DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
4. PAYMENT AND ADJUSTMENTS.
4.1 PAYMENT. The Company shall pay to NWIP upon execution and
delivery hereof (the "Closing") the amount of $10,593,033 payable in immediately
available funds by wire transfer to an account designated by NWIP in writing for
this purpose. This payment (the "Closing Date Payment") is the sum of the
following:
(a) $7,022,857 as reimbursement for certain costs and expenses;
plus
(b) $3,570,176 as payment for the other Assets.
4.2 POST-CLOSING ADJUSTMENT. The Closing Date payment is subject
to a post-closing adjustment as set forth in Schedule 5.2.
4.3 TAXES. The Company must pay sales and use taxes, and NWIP must
pay transfer taxes relating to or arising from the transfer of the Assets to the
Company.
5. MISCELLANEOUS.
5.1 FURTHER ASSURANCES.
5.1(a) After the date of this Agreement, NWIP shall, from time to
time, at the Company's request, execute and deliver to the Company such
other instruments of conveyance and transfer and take such other action
as the Company may reasonably request to more effectively transfer,
assign, deliver and vest in the Company title to and possession of the
Assets as provided in this Agreement or otherwise to consummate the
transactions contemplated by this Agreement. After the date of this
Agreement, the Company shall from time to time, at NWIP's request,
execute and deliver such other
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instruments of assumption and take such other action as NWIP may
reasonably request to more effectively assume the Assumed Liabilities
or otherwise to consummate the transactions contemplated by this
Agreement.
5.1(b) After the date of this Agreement, if NWIP learns of
agreements or permits that were used or acquired for use exclusively in
connection with the Business in the Expansion Territory, NWIP may
identify them in writing to the Company and the Company will, if such
agreement or permit does not conflict with obligations undertaken by
the Company, assume the new agreement as an additional Assumed
Liability hereunder.
5.1(c) After the date of this Agreement, if NWIP learns of
Assets that were used or acquired for use exclusively in connection
with the Business in the Expansion Territory and were not transferred
to the Company on the date hereof, NWIP will identify them in writing
to the Company, and the Company may, if such Asset does not conflict
with obligations undertaken by the Company, accept such Assets as
additional Assets hereunder. Any consent required for the assignment of
any such Asset to the Company shall be obtained by and at the expense
of NWIP.
5.2 WAIVER OF BULK SALES COMPLIANCE. To the extent they apply, the
Company waives compliance by NWIP with the provisions of the "bulk sales" law of
any state including, without limitation, the provisions of Article 6 of the
Uniform Commercial Code as enacted in any applicable state.
5.3 CHOICE OF LAW. This Agreement shall be governed by New York
law, without regard to choice of law rules that would result in the application
of another state's law.
5.4 EXCUSABLE DELAY/TIME EXTENSION. Where performance by any party
to this Agreement is delayed by reason of an Excusable Delay (as defined in the
JV Agreement), the time for performance, and any otherwise applicable time
limit, schedule or deadline, shall be extended for a period of time equal to the
period of Excusable Delay.
5.5 AMENDMENTS. This Agreement may be amended only by a writing
executed by the parties.
5.6 ENTIRE AGREEMENT. This Agreement and the other Expansion
Transaction Documents, together with the Transaction Documents, set forth the
entire understanding of the parties hereto and thereto with respect to the
subject matter hereof and thereof, and supersede all prior contracts,
agreements, arrangements, communications, discussions, representations and
warranties, whether oral or written, between the parties.
5.7 NOTICES. Any notice, request or other communication required
or permitted hereunder must be in writing and is given: (a) when received if
personally delivered; (b) 12 hours after being sent by telecopy, with confirmed
answerback; or (c) 1 business day after being sent by priority delivery by
established overnight courier, to the parties at their respective addresses set
forth below.
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To NWIP: Nextel WIP Corp.
2001 Edmund Halley Drive
Reston, Virginia 20191
Attention: General Counsel
Telecopy: (703) 433-4231
With a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Jeanne M. Rickert
Telecopy: (216) 579-0212
To the Company: Nextel Partners Operating Corp.
4500 Carillon Point
Kirkland, WA 98033
Attention: General Counsel
Telecopy: (425) 828-8098
With a copy to: Friedman Kaplan & Seiler LLP
875 Third Avenue
New York, NY 10022
Attention: Gary D. Friedman
Telecopy: (212) 355-6401
Any party by written notice to the others given in accordance with this Section
6.7 may change the address or the persons to whom notices or copies thereof are
to be directed.
5.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, and all of which
together will constitute one and the same instrument.
5.9 WAIVER. Except as otherwise provided in this Agreement, any
party may waive, in writing, compliance by the other parties thereto (to the
extent such compliance is for the benefit of the party giving such waiver) with
any of the terms, covenants or conditions contained in this Agreement (except as
may be imposed by law). Any waiver by any party of any violation of, breach of,
or default under, any provision of any of this Agreement, by any other party
will not be construed as, or constitute, a continuing waiver of such provision,
or waiver of any other violation of, breach of, or default under, any other
provision of this Agreement.
5.10 THIRD PARTIES. Nothing expressed or implied in this Agreement
is intended, or may be construed, to confer upon or give any person or entity
other than the parties hereto any rights or remedies hereunder.
5.11 SEVERABILITY. If any provision of this Agreement or the
application of such provision is invalid, illegal or
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unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision of this Agreement or
invalidate or render unenforceable such provision in any other jurisdiction. The
parties will, to the extent lawful and practicable, use their best reasonable
efforts to enter into arrangements to reinstate the intended benefits of any
provision held invalid, illegal or unenforceable.
5.12 CONSTRUCTION.
5.12(a) Words used in this Agreement, regardless of the number or
gender specifically used, will be deemed and construed to include any
other number, singular or plural, and any other gender, masculine,
feminine or neuter, as the context requires. The parties hereto have
participated equally in the drafting of this Agreement and no
presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of authorship of any provision of this Agreement.
5.12(b) The schedules and exhibits attached to this Agreement are
incorporated herein and are part of this Agreement for all purposes.
Unless otherwise stated, any reference in this Agreement to an exhibit,
section or schedule is to an exhibit, section or schedule of this
Agreement.
5.12(c) The headings in this Agreement are solely for convenience
of reference and are not to be given any effect in the construction or
interpretation of this Agreement.
5.13 AGREEMENT. This Agreement is to be construed as if it were
one of the Collateral Agreements identified in the JV Agreement, so that certain
provisions of the JV Agreement by their terms apply to this Agreement,
including, without limitation, Section 2.6, Article 12, and Section 13.2, and
Section 13.10.
[Remainder of page intentionally left blank]
-9-
<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the day and year
first above written.
NEXTEL WIP CORP.
By: Alan Strauss
----------------------------------
Name: Alan Strauss
Title: Vice President
NEXTEL PARTNERS OPERATING CORP.
By: John D. Thompson
----------------------------------
Name: John Thompson
Title: Chief Financial Officer and Treasurer
-10-
<PAGE> 12
DISCLOSURE SCHEDULES FOR THE
EXPANSION TERRITORY ASSET TRANSFER AND
REIMBURSEMENT AGREEMENT
BETWEEN NEXTEL WIP CORP. AND NEXTEL PARTNERS OPERATING CORP.
DATED AS OF SEPTEMBER 9, 1999
The Schedules attached hereto are subject to the following terms and conditions:
1. The introductory language and headings in the Schedules are inserted for
convenience only and shall not create a different standard for disclosure
than the language set forth in this Agreement.
2. The inclusion of any item in the Schedules when listing a "material" item
or an action "not in the ordinary course of business" is not deemed to be
an admission or representation that the included item is "material" or is
"not in the ordinary course of business."
3. Each capitalized term used herein and not otherwise defined shall have the
meaning given to such term in this Agreement.
4. Any matter disclosed in any section or subsection of the Schedules shall be
deemed disclosed for the purposes of any other schedule in which it is
reasonably clear that such disclosure may be relevant.
5. This Schedule is fully incorporated into and made a part of the Expansion
Territory Asset Transfer and Reimbursement Agreement, dated as of September
9, 1999, between Nextel WIP Corp. and Nextel Partners Operating Corp.
<PAGE> 13
SCHEDULE A
DEFINED TERMS
"Agreement" has the meaning set forth in the preamble to this Agreement.
"Antenna Site" has the meaning set forth in the Master Site Lease.
"Assets" has the meaning set forth in Section 1.1.
"best reasonable efforts" has the meaning set forth in the JV Agreement.
"Business" has the meaning set forth in the recitals to this Agreement.
"Company" has the meaning set forth in the preamble to this Agreement.
"Expansion Territory" means the option sections described on Schedule B.
"Expansion Transaction Documents" means this Agreement, Expansion
Territory Interim Management Agreement, by and between the Company and NWIP, of
even date herewith and Expansion Subscription and Contribution Agreement by and
between NPI, NWIP, DLJ Merchant Banking Partners II, L.P., Eagle River
Investments, L.L.C., Motorola, Inc. and the other investors named therein, of
even date herewith.
"JV Agreement" means the Joint Venture Agreement, by and among NWIP, NPI
and the Company, dated as of January 29, 1999.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset unless the agreement related to such financing is listed
on any Schedule hereto, and (c) any purchase option or other right or interest
of a third party thereto.
"Master Site Lease" means the Master Site Lease, between NWIP and the
Company, dated as of January 29, 1999.
"Nextel" means Nextel Communications, Inc., a Delaware corporation.
"NPI" means Nextel Partners, Inc., a Delaware corporation.
"NWIP" has the meaning set forth in the preamble to this Agreement.
"Permitted Liens" means (i) liens imposed by law for taxes that are not
yet due or are being contested, (ii) carriers', warehouseman's, mechanics',
landlords', lessors', materialmans', repairman's and other like liens imposed by
law, arising in the ordinary course of business and
<PAGE> 14
securing obligations that are not overdue by more than 30 days, (iii) pledges
and deposits made in the ordinary course of business in compliance with workers
compensation, unemployment insurance and other social security laws or
regulations, (iv) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeals bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business, (v) easements, zoning restrictions, rights of way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of the Business, (vi) precautionary Uniform Commercial Code filings made
with respect to office and similar equipment, or vehicles, leased in the
ordinary course of business under operating leases (i.e., leases not required to
be classified and accounted for as capital leases on a balance sheet under
GAAP), and (vii) Uniform Commercial Code filings made with respect to the sale
or assignment of customer lease contracts (and related rental payments) or the
portion of accounts receivable and related payments due under customer service
contracts, or as set forth in customer account statements, that are attributable
to the rental or leasing of subscriber equipment leased to customers of Nextel
or the Business.
"Site" has the meaning set forth in the Master Site Lease.
"Subsidiary" of a specified person means a corporation, partnership,
limited liability company or other entity in which the specified person directly
or indirectly owns or controls the shares of stock having ordinary voting power
to elect a majority of the board of directors (or appoint other comparable
managers) of such corporation, partnership, limited liability company or other
entity.
-2-
<PAGE> 15
SCHEDULE B
EXPANSION TERRITORY
<PAGE> 16
<TABLE>
<CAPTION>
PTNR PTNR
Service Service Section Nextel Section Launch Build Service Area Name State Type
Area Number Area Category Number Name Quarter Year
<S> <C> <C> <C> <C> <C> <C> <C> <C>
18 Option 9 North Arkansas Q101 3 FAYETTEVILLE-SPRINGDALE AR Urban
34 Option 9 North Arkansas Q101 3 FORT SMITH (AR-OK) AR Urban
136 Option 30 Little Rock Q400 2 LITTLE ROCK-NORTH LITTLE RO AR Urban
137 Option 30 Little Rock Q101 3 PINE BLUFF AR Urban
182 Option 30 Little Rock Q101 3 I 30 AR Roadway
212 Option 30 Little Rock Q101 3 Arkadelphia AR Urban
213 Option 30 Little Rock Q101 3 Hope AR Urban
224 Option 9 North Arkansas Q101 3 Clarksville AR Urban
225 Option 30 Little Rock Q101 3 Conway AR Urban
227 Option 9 North Arkansas Q101 3 Russellville AR Urban
325 Option 30 Little Rock Q400 2 Hot Springs AR Urban
442 Option 30 Little Rock Q101 3 I 40 AR Roadway
443 Option 9 North Arkansas Q101 3 I 40 AR Roadway
444 Option 30 Little Rock Q400 2 I 40 AR Roadway
89 Option 34 Georgia Cities Q300 2 MACON GA Urban
100 Option 20 Dothan Q400 2 COLUMBUS (GA-AL) GA Urban
110 Option 34 Georgia Cities Q400 2 WARNER ROBINS GA Urban
145 Option 20 Dothan Q300 2 ALBANY GA Urban
163 Option 34 Georgia Cities Q300 2 I 16 GA Roadway
236 Option 34 Georgia Cities Q300 2 Dublin GA Urban
261 Option 20 Dothan Q400 2 I 185 GA Roadway
265 Option 20 Dothan Q400 2 US Hwy 82 GA Roadway
378 Option 20 Dothan Q400 2 Moultrie GA Urban
398 Option 34 Georgia Cities Q300 2 Valdosta GA Urban
555 Option 20 Dothan Q400 2 I 85 GA Roadway
559 Option 34 Georgia Cities Q300 2 I 75 GA Roadway
561 Option 34 Georgia Cities Q300 2 I 75 GA Roadway
815 Option 36 East Georgia Q300 2 I 16 GA Roadway
102 Option 3 Evansville Q101 3 EVANSVILLE (IN-KY) IN Urban
122 Option 4 Central IL Q400 2 I 70 IN Roadway
134 Option 4 Central IL Q400 2 TERRE HAUTE IN Urban
149 Option 3 Evansville Q101 3 I 64 IN Roadway
228 Option 4 Central IL Q400 2 Crawfordsville IN Urban
274 Option 4 Central IL Q400 2 US Hwy 41 IN Roadway
289 Option 3 Evansville Q101 3 US Hwy 41 IN Roadway
339 Option 3 Evansville Q101 3 Vincennes IN Urban
355 Option 3 Evansville Q101 3 Mount Vernon IN Urban
366 Option 4 Central IL Q101 3 Russellville IN Urban
369 Option 3 Evansville Q101 3 Princeton IN Urban
824 Option 4 Central IL Q400 2 I 74 IN Roadway
86 Option 3 Evansville Q101 3 OWENSBORO KY Urban
574 Option 3 Evansville Q101 3 US Hwy 41 KY Roadway
805 Option 9 North Arkansas Q101 3 I 40 OK Roadway
</TABLE>
<TABLE>
<CAPTION>
Start End Avail SQ_MI Avail '97 POP
<S> <C> <C> <C> <C>
18 454 132,776
34 417 140,428
136 758 393,323
137 328 73,077
182 Texarkana, TX LITTLE ROCK-NORTH LITTLE ROCK, AR 806 56,687
212 77 12,811
213 77 13,165
224 77 10,159
225 77 40,819
227 77 32,985
325 77 41,550
442 CONWAY, FAUKNER COUNTY LITTLE ROCK-NORTH LITTLE ROCK, AR 89 10,890
443 CONWAY, FAUIKNER COUNTY FORT SMITH, AR-OK 696 41,370
444 ST. FRANCIS COUNTY BORDER, WEST LITTLE ROCK-NORTH LITTLE ROCK, AR 412 17,179
89 516 222,174
100 815 260,788
110 168 48,801
145 441 116,140
163 MACON, GA Candler COUNTY, WEST 642 33,175
236 77 27,621
261 I-85 INTERSECTION COLUMBUS, GA-AL 180 4,848
265 TIFF COUNTY BORDER, WEST ALBANY, GA 134 12,478
378 77 20,924
398 27 3,739
555 COWETA COUNTY BORDER, SOUTH AUBURN-OPELIKA, AL 348 68,423
559 BUTTS COUNTY BORDER, SOUTH MACON, GA 167 10,095
561 MACON, GA Floridia Border 1141 152,616
815 Bryan COUNTY BORDER, NORTHWEST Candler COUNTY BORDER, WEST 336 9,437
102 625 244,359
122 Putnam County - Morgan County Border Terre Haute, IN 231 11,644
134 453 112,881
149 HARRISON COUNTY BORDER, EAST WASHINGTON COUNTY BORDER, WEST 1256 63,446
228 77 20,849
274 TERRE HAUTE, IN KNOX COUNTY BORDER, NORTH 221 15,324
289 SULLIVAN COUNTY BORDER, SOUTH I-64 INTERSECTION, GIBSON COUNTY 259 11,329
339 77 24,777
355 77 9,791
366 77 1,994
369 77 11,992
824 CRAWFORDVILLE, IN DANVILLE, IL 310 14,856
86 285 80,502
574 EVANSVILLE, IN-KY Western Kentucky Pkwy INTERSECTION, Hopkins County 217 7,883
805 FORT SMITH, AR-OK Muskogee COUNTY BORDER, EAST 273 22,068
</TABLE>
<PAGE> 17
<TABLE>
<CAPTION>
SERVICE SERVICE SECTION NEXTEL SECTION NAME PTNR PTNR BUILD SERVICE AREA NAME
AREA NUMBER AREA CATEGORY NUMBER LAUNCH QUARTER YEAR STATE TYPE
<S> <C> <C> <C> <C> <C> <C> <C> <C>
90 Option 13 Central Texas Q101 3 ABILENE TX Urban
469 Option 13 Central Texas Q101 3 I 20 TX Roadway
609 Option 11 South Texas Q400 2 LAREDO TX Urban
611 Option 11 South Texas Q400 2 MCALLEN-EDINBURG-MISSION TX Urban
612 Option 11 South Texas Q400 2 BROWNSVILLE TX Urban
613 Option 11 South Texas Q400 2 HARLINGEN TX Urban
641 Option 11 South Texas Q400 2 I 35 TX Roadway
807 Option 11 South Texas Q400 2 US Hwy 77 TX Roadway
809 Option 11 South Texas Q400 2 US Hwy 281 TX Roadway
<CAPTION>
SERVICE
AREA NUMBER START END AVAIL SQ_MI AVAIL '97 POP
<S> <C> <C> <C> <C>
90 507 119,550
469 ABILENE, TX PALO PINTO COUNTY BORDER, SOUTH 505 22,126
609 389 171,182
611 630 472,159
612 189 168,130
613 203 112,190
641 Medina County BORDER, SOUTH Laredo, TX 804 18,863
807 Kleberg COUNTY BORDER, NORTH HARLINGEN, TX 671 19,293
809 Jim Wells COUNTY BORDER, SOUTH MCALLEN-EDINBURG-MISSION, TX 501 9,545
Arkansas Total: 4,422 1,017,219
Georgia Total: 5,069 991,259
Indiana Total: 3,740 543,242
Kentucky Total: 502 88,385
Oklahoma Total: 273 22,068
Texas Total: 4,399 1,113,038
------- ------------
Optional Territory: 18,405 3,775,211
</TABLE>
<PAGE> 18
SCHEDULE 1.1(b)
CONTRACTS
None
<PAGE> 19
SCHEDULE 1.1(d)
LEASES
<PAGE> 20
MIDWEST TERRITORIES
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION
Partner's Service Project Name
Region # Section # Service Area # Area Name Project Code (Site Name) Nextel's Market Name
<S> <C> <C> <C> <C> <C> <C>
2 4 122 I-70W: Indianapolis-Terre Haute IN2505 Terra Haute Mid West
2 4 122 I-70W: Indianapolis-Terre Haute IN2506 Prarrie City Mid West
2 4 122 I-70W: Indianapolis-Terre Haute IN2507 Reelsville Mid West
<CAPTION>
NEXTEL SITE ID INFORMATION
Partner's Service Lease
Region # Section # Service Area # Area Name Site Leased Lease Rate Commencement Date
<S> <C> <C> <C> <C> <C> <C>
2 4 122 I-70W: Indianapolis-Terre Haute Complete $ 600 C or 7/1/99
2 4 122 I-70W: Indianapolis-Terre Haute Complete $3000 per yr ComOp* or 7/1/99
2 4 122 I-70W: Indianapolis-Terre Haute Complete $ 334 C or 7/1/99
</TABLE>
*Commercial Operation
<PAGE> 21
LEASES
ARKANSAS TERRITORIES
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION
Partner's Project
Service Name
Region # Section # Service Area Project (Site Nextel's Lease
Area # Name Code Name) Market Name Site Leased Lease Rate Commencement Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
3 30 182 I-30 AR8019 Taturn Blanket Complete $500.00 C or 10/1/98
3 30 182 I-30 AR8023 Huff Blanket Complete $500.00 C or 10/1/98
3 30 182 I-30 AR8024 Three Lakes Blanket Complete $500.00 C or 10/1/98
4 30 444 I-40 AR8010 Jacksonville Blanket Complete $500.00 C or 10/1/98
4 30 444 I-40 AR8011 Lonoke Blanket Complete $500.00 C or 10/1/98
4 30 444 I-40 AR8012 Greenwalt Blanket Complete $500.00 C or 10/1/98
4 30 444 I-40 AR8013 AG Pro Tank Blanket Complete $500.00 C or 10/1/98
4 30 182 I-30 AR8032 Cook Blanket Complete $500.00 C or 10/1/98
</TABLE>
<PAGE> 22
TEXAS TERRITORIES
NEXTEL SITE ID INFORMATION
<TABLE>
<CAPTION>
Project Name Lease
Project Code (Site Name) Nextel's Market Name Site Leased Lease Rate Commencement Date
<S> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 23
GEORGIA TERRITORIES
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION
REGION # SECTION # SERVICE PARTNER'S SERVICE PROJECT PROJECT NAME NEXTEL'S MARKET SITE LEASED
AREA # AREA NAME CODE (SITE NAME) NAME
<S> <C> <C> <C> <C> <C> <C> <C>
3 34 559 I-75 South GA1047 Forsyth Southeast Complete
3 34 561 I-75 South GA1048 Bollingorolex
3 34 561 I-75 South GA1050 Buckeye Road
3 34 561 I-75 South GA1052 Henderson Miller Southeast Complete
3 34 561 I-75 South GA1053 Unidilla Southeast Complete
3 34 561 I-75 South GA1054 Vienna Southeast Complete
3 34 561 I-75 South GA1055 Gum Creek Southeast Complete
3 34 561 I-75 South GA1056 Ashburn Southeast Complete
3 34 561 I-75 South GA1057 Chula Southeast Complete
3 34 561 I-75 South GA1058 Unionville Southeast Complete
3 34 561 I-75 South GA1059 Barneyville Southeast Complete
3 34 561 I-75 South GA1060 Hehirs West Southeast Complete
3 34 561 I-75 South GA1061 Remerton/Phippe Southeast Complete
3 34 561 I-75 South GA1062 Lake Park Southeast Complete
3 20 261 I-185 GA1063 Trimble Southeast Complete
3 20 261 I-185 GA1065 Oak Grove Southeast Complete
3 20 100 Columbus GA1066 Mountain Hill Southeast Complete
3 20 100 Columbus GA1067 Fortson Southeast Complete
3 20 555 I-85 GA1068 Dinglewood Southeast Complete
3 20 261 I-185 GA1094 Beech Creek Southeast Complete
3 20 145 Albany GA1095 Hopewell Southeast Complete
3 34 561 I-75 South GA1112 Adel Sumner Southeast Complete
3 34 561 I-75 South GA1113 Arabi Southeast Complete
3 34 561 I-75 South GA1114 Macon East Southeast Complete
3 34 561 I-75 South GA1115 Smarr Southeast Complete
3 34 561 I-75 South GA1116 Johnstonville Southeast Complete
3 34 561 I-75 South GA1170 Hutchinson St Southeast Complete
3 34 561 I-75 South GA1232 Byron Southeast Complete
3 34 561 I-75 South GA1239 Payne Southeast Complete
3 34 89 Macon GA1266 Skipperton Southeast Complete
3 34 89 Macon GA1687 Bloomfield Southeast Complete
3 34 110 Warner Robbins GA1690 Farion Southeast Complete
3 34 89 Macon GA1691 Warner Southeast Complete
3 34 89 Macon GA1698 Dry Branch Southeast Complete
3 34 89 Macon GA1700 Strip Mines Southeast Complete
3 20 555 I-85 GA1701 St. Louis Southeast Complete
3 34 561 I-75 South GA1702 Bliss Southeast Complete
3 33 89 Macon GA1704 Rutland Southeast Complete
3 34 561 I-75 South GA1741 FortValley Southeast Complete
</TABLE>
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION
REGION # LEASE RATE LEASE COMMENCEMENT DATE
<S> <C> <C>
3 $ 500 10/1/94
3 $ 300 12/1/94
3 $ 800 8/25/97
3 $ 800 9/12/97
3 $ 800 9/10/97
3 $ 800 8/2/97
3 $ 800 7/29/97
3 $ 800 11/18/97
3 $ 800 10/18/97
3 $ 800 10/29/97
3 $ 800 11/25/97
3 $ 800 10/3/97
3 $ 1,345 10/1/94
3 $ 800 9/2/97
3 $ 350 10/1/94
3 $ 265 12/1/95
3 $ 667 5/1/95
3 $ 250 10/1/94
3 $ 417 12/1/95
3 $ 333 1/1/95
3 $ 500 12/1/95
3 $ 800 9/20/97
3 $ 800 8/14/97
3 $ 1,500 8/1/97
3 $ 250 11/1/94
3 $ 167 12/1/94
3 $ 420 6/1/94
3 $ 1,500 12/21/94
3 $ 1,500 11/1/97
3 $ 1,500 11/1/97
3 $ 450 4/20/98
3 $ 500 4/3/98
3 $ 500 4/27/98
3 $ 1,200 9/1/98
3 $ 500 4/27/98
3 $ 300 4/13/98
3 $ 500 5/4/98
3 $ 450 4/3/98
3 $ 500 9/1/98
</TABLE>
<PAGE> 24
MID SOUTH TERRITORIES
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION
Project
Partner's Name Nextel's Lease
Region # Section # Service Service Project (Site Market Site Lease Commencement
Area # Area Name Code Name) Name Leased Rate Date
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
C or
2 3 102 Evansville KY5150 Evansville - Hahn Blanket Complete $500.00 8/19/99*
2 3 102 Evansville KY5151 Hout Blanket Complete $400.00 5/1/99
2 3 102 Evansville KY5152 Hardaway Blanket Complete $850.00 5/17/99
*Copy at NS
</TABLE>
<PAGE> 25
MIDWEST TERRITORIES
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION
Partner's Service Project Name
Region # Section # Service Area # Area Name Project Code (Site Name) Nextel's Market Name
<S> <C> <C> <C> <C> <C> <C>
2 4 122 I-70W: Indianapolis-Terre Haute IN2505 Terra Haute Mid West
2 4 122 I-70W: Indianapolis-Terre Haute IN2506 Prarrie City Mid West
2 4 122 I-70W: Indianapolis-Terre Haute IN2507 Reelsville Mid West
<CAPTION>
NEXTEL SITE ID INFORMATION
Partner's Service Lease
Region # Section # Service Area # Area Name Site Leased Lease Rate Commencement Date
<S> <C> <C> <C> <C> <C> <C>
2 4 122 I-70W: Indianapolis-Terre Haute Complete $ 600 C or 7/1/99
2 4 122 I-70W: Indianapolis-Terre Haute Complete $3000 per yr ComOp* or 7/1/99
2 4 122 I-70W: Indianapolis-Terre Haute Complete $ 334 C or 7/1/99
</TABLE>
*Commercial Operation
<PAGE> 26
SCHEDULE 2.1
DISCLOSED LIABILITIES
None
<PAGE> 27
SCHEDULE 5.2
TRUE-UP PROCEDURES
------------------
POST CLOSING ADJUSTMENTS TO CLOSING DATE PAYMENT
1. POST CLOSING ADJUSTMENTS. On or before the 60th day after the date of
this Agreement, NWIP and the Company will make adjustments to the Closing Date
Payment according to the procedures set forth on this Schedule 5.2.
2. ADJUSTMENTS RELATED TO TANGIBLE ASSETS.
2.1 For purposes of the adjustments to be made in accordance with this
Schedule 5.2 only, NWIP and the Company agree that the portion of the Closing
Date Payment attributable to certain tangible assets transferred to the Company
on the date hereof and to be inventoried by the Company is $3,570,176 (the
"Tangible Asset Purchase Price").
2.2 After the date of this Agreement, the Company will conduct a physical
inventory of :
2.2(a) tangible assets of the type identified on Schedule 5.2A to the
Asset and Stock Transfer and Reimbursement Agreement, by and between the Company
and NWIP, dated as of January 29, 1999, located or installed in or at all cell
sites in the Expansion Territory; and
2.2(b) subscriber equipment, accessories and EBTS located or stored in
any sales offices in the Expansion Territory (the assets in clauses A and B,
collectively, the "Tangible Assets").
As part of the inventory process, the Company will count only the Tangible
Assets that were transferred to the Company by NWIP as part of this Agreement
and will exclude any Tangible Assets purchased or acquired by the Company after
the date of this Agreement. The Company will notify NWIP of the time schedule
for the physical inventory, and NWIP may, at its election and its expense,
observe all or any part of the physical inventory.
2.3 The Company and NWIP acknowledge and agree that Nextel is currently
undertaking a similar inventory of its fixed assets and is utilizing a fixed
asset tracking system that, among other things, identifies certain types or
categories of fixed assets and assigns a value to each such asset. To assist the
Company in its inventory, the parties created Schedule 5.2D, attached to the
Asset and Stock Transfer and Reimbursement Agreement, by and between the Company
and NWIP, dated as of January 29, 1999. Schedule 5.2D utilizes the fixed asset
tracking methodologies currently used by Nextel to describe the categories or
types of Tangible Assets to be inventoried and the value to be ascribed to each
inventoried item. The Company and NWIP agree that the Tangible Assets to be
inventoried by the Company and the values to be ascribed to such assets will, to
the greatest extent possible, conform to the tracking and valuation methodology
currently employed by Nextel as set forth on Schedule 5.2D.
2.4 On or before the 60th day after the date of this Agreement, the
Company shall submit to NWIP in writing the results of the Company's inventory
of the Tangible Assets. The
<PAGE> 28
results shall include, based on the methodology set forth in section 2.3 above,
a description of the Tangible Assets found, the quantities of each, the value
ascribed to each and a total dollar value for all of the inventoried Tangible
Assets (the "Tangible Assets Inventory Value").
3. ADJUSTMENTS RELATED TO CAPITALIZED INTEREST.
3.1 The parties acknowledge that as of the date hereof: (1) NWIP will
transfer to the Company certain cell sites in various stages of development; (2)
that Nextel assigns capitalized interest charges to such sites pursuant to a
formula based on milestones in the site's development, and (3) that the
capitalized interest charges related to the transferred sites have been
reimbursed by the Company to NWIP (the "Reimbursed Capitalized Interest
Charges"). For purposes of the adjustments to be made in accordance with this
Schedule 5.2 only, the parties acknowledge and agree that the following sites
have achieved at Closing the development milestones indicated below and that the
Company has reimbursed NWIP for the capitalized interest charges set forth next
to each listed site:
<TABLE>
<CAPTION>
Milestone Capitalized Number Total Capitalized
Achieved as of Interest Charged of Interest Reimbursed
Closing for that Milestone Sites by Company
- --------------------------------------- ----------------------- ---------------------- -------------------------------
<S> <C> <C> <C>
Designed and/or Leased 2400 46 110,400
- --------------------------------------- ----------------------- ---------------------- -------------------------------
Zoned and/or Building Permit 9600 11 105,600
Issued and/or Construction Started
- --------------------------------------- ----------------------- ---------------------- -------------------------------
Construction Complete 14,400 0 -0-
- --------------------------------------- ----------------------- ---------------------- -------------------------------
On-Air 16,000 24 384,000
- --------------------------------------- ----------------------- ---------------------- -------------------------------
Totals 81 600,000
- --------------------------------------- ----------------------- ---------------------- -------------------------------
</TABLE>
3.2 After the date hereof, the Company will perform an inspection of each
of the sites transferred to the Company hereunder and of the records relating to
that site to verify the development milestone attained by each site as of the
date hereof. Based on this inspection, the Company will prepare a written chart
in substantially the same format as shown above, which shall list for each
inspected site the actual development milestone achieved as of the Closing.
Based on the actual milestones achieved, the Company will calculate the total
capitalized interest associated with the actual milestones achieved (the "Actual
Capitalized Interest Charges"). On or before the 60th day after the date of this
Agreement, the Company shall submit to NWIP in writing the results of the
Company's inspection of the transferred cell sites.
4. ADJUSTMENTS RELATED TO OPERATING EXPENSES.
4.1 NWIP and the Company will adjust the amounts paid by the Company at
Closing to reflect revenues related to the transferred Assets generated prior to
Closing and which were not credited to the Company at closing and operating
expenses accrued by NWIP and reimbursed by Company at Closing but that are
actually paid by Company after Closing. An example is accounts payable accrued
by NWIP and reimbursed to NWIP by the Company at Closing, but subsequently paid
by the Company to the vendor or other third party after Closing.
4.2 NWIP will receive credit for operating expenses related to the
transferred Assets
-2-
<PAGE> 29
that it incurred prior to transfer of the Assets and which
were not reimbursed by the Company at Closing. The parties will make all other
similar adjustments and pro-rations of operating expenses as necessary and
appropriate.
5. Calculation and Payment of Adjustments.
5.1 Within 60 days after the date of this Agreement, the Company shall
submit to NWIP the written results of its physical inventory as described in
section 2 above, the written results of its site inspections and review of site
records as described in section 3 above and its determination of the adjustments
to revenue, operating expenses and current assets and current liabilities as
described in section 4 above together with any supporting documentation for all
such information as NWIP may reasonably request. In addition, the Company will
calculate the following: (1) the difference, if any, between the Tangible Asset
Purchase Price and the Tangible Asset Inventory Value (the "Tangible Asset
Adjustment"); (2) the difference, if any, between the Reimbursed Capitalized
Interest Charges and the Actual Capitalized Interest Charges (the "Capitalized
Interest Adjustment"); and (3) the net amount due to either party as a result of
the adjustment, credits and other pro-rations to be made as described in section
4 (the "Operating Expense Adjustment"). The Company will add the Tangible Asset
Adjustment, the Capitalized Interest Adjustment, and the Operating Expense
Adjustment in order to calculate a net adjustment (the "Net Adjustment").
5.2 If the Net Adjustment is less than two percent (2%) of the Closing
Date Payment, neither party will be obligated to pay to the other party the
amount of the Net Adjustment.
5.3 If the Net Adjustment is two percent (2%) or greater than the Closing
Date Payment, the party that owes the Net Adjustment shall pay the Net
Adjustment amount to the other party in cash within thirty days after the
Company submits to NWIP the written information and calculations detailed in
section 5.1 above.
5.4 NWIP will have thirty (30) days after receipt from the Company of the
information set forth in section 5.1 of this Schedule 5.2 to dispute the
information supplied by the Company. If NWIP does not raise any dispute within
such time period, the Company's calculation of the Net Adjustment will be deemed
accurate. If NWIP timely raises any such dispute, the Net Adjustment amount as
calculated by the Company shall nevertheless be paid by the appropriate party
within the time frame set forth in section 5.3; provided, however, the parties
will resolve such dispute in accordance with Article 12 of the JV Agreement.
Promptly upon resolution of any dispute, the parties shall make any and all
adjustments to the amount paid by either party consistent with the dispute
resolution.
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<PAGE> 1
EXHIBIT 10.2
[EXECUTION COPY]
U.S. $425,000,000
AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of September 9, 1999
(amending and restating the Credit Agreement,
dated as of January 29, 1999)
among
NEXTEL PARTNERS OPERATING CORP.,
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent for the Lenders,
THE BANK OF NEW YORK,
as the Documentation Agent for the Lenders,
and
BANK OF MONTREAL,
as the Administrative Agent for the Lenders
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
LEAD ARRANGER AND SOLE BOOK RUNNING MANAGER
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.....................................................................................3
1.2. Use of Defined Terms.............................................................................40
1.3. Cross-References.................................................................................40
1.4. Accounting and Financial Determinations..........................................................40
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES,
NOTES AND LETTERS OF CREDIT
2.1. Commitments......................................................................................41
2.1.1. Term-B Loans; Term-C Loan Commitments............................................................41
2.1.2. Revolving Loan Commitment........................................................................41
2.1.3. Additional Commitments...........................................................................41
2.1.4. Letter of Credit Commitment......................................................................43
2.1.5. Lenders Not Permitted or Required to Make Loans..................................................43
2.1.6. Issuer Not Required to Issue Letters of Credit...................................................43
2.2. Reduction of Commitment Amounts..................................................................43
2.2.1. Optional.........................................................................................43
2.2.2. Mandatory........................................................................................44
2.3. Borrowing Procedure and Funding Maintenance......................................................44
2.4. Continuation and Conversion Elections............................................................45
2.5. Funding..........................................................................................45
2.6. Issuance Procedures..............................................................................45
2.6.1. Other Lenders' Participation.....................................................................46
2.6.2. Disbursements; Conversion to Revolving Loans.....................................................47
2.6.3. Reimbursement....................................................................................47
2.6.4. Deemed Disbursements.............................................................................48
2.6.5. Nature of Reimbursement Obligations..............................................................48
2.7. Register; Notes..................................................................................49
</TABLE>
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(continued)
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application..........................................................50
3.1.1. Repayments and Prepayments.......................................................................50
3.1.2. Application......................................................................................54
3.2. Interest Provisions..............................................................................54
3.2.1. Rates............................................................................................55
3.2.2. Post-Maturity Rates..............................................................................55
3.2.3. Payment Dates....................................................................................55
3.3. Fees.............................................................................................56
3.3.1. Commitment Fee...................................................................................56
3.3.2. Administrative Agent Fee.........................................................................56
3.3.3. Letter of Credit Fee.............................................................................56
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.......................................................................57
4.2. Deposits Unavailable.............................................................................57
4.3. Increased LIBO Rate Loan Costs, etc..............................................................57
4.4. Funding Losses...................................................................................58
4.5. Increased Capital Costs..........................................................................58
4.6. Taxes............................................................................................59
4.7. Payments, Computations, etc......................................................................61
4.8. Sharing of Payments..............................................................................61
4.9. Setoff...........................................................................................62
4.10. Mitigation.......................................................................................62
4.11. Replacement of Lenders...........................................................................62
ARTICLE V
CONDITIONS TO RESTATEMENT EFFECTIVENESS AND CREDIT EXTENSIONS
5.1. Effectiveness....................................................................................63
5.1.1. Execution of Counterparts........................................................................63
5.1.2. Resolutions, etc.................................................................................63
5.1.3. Delivery of Term-C Loan Notes....................................................................64
</TABLE>
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(continued)
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5.1.4. Transaction Documents............................................................................64
5.1.5. Restatement Effective Date Certificate...........................................................64
5.1.6. Affirmation and Consent..........................................................................64
5.1.7. Security Agreements..............................................................................64
5.1.8. Assignment Agreement and Consents to Assignment..................................................65
5.1.9. Option FCC Licenses..............................................................................65
5.1.10. Consents.........................................................................................65
5.1.11. Capitalization and Structure.....................................................................66
5.1.12. Financial Information, etc.......................................................................66
5.1.13. Business Plan....................................................................................66
5.1.14. Additional Nextel Contribution, Additional Motorola Contribution,
Additional Investors Contribution and Additional Borrower Equity
Contribution...................................................................................66
5.1.15. Litigation.......................................................................................67
5.1.16. Material Adverse Change..........................................................................67
5.1.17. Reliance Letters.................................................................................67
5.1.18. Opinions of Counsel..............................................................................67
5.1.19. Closing Fees, Expenses, etc......................................................................67
5.1.20. Satisfactory Legal Form..........................................................................67
5.1.21. UCC Filing Service...............................................................................68
5.2. All Credit Extensions............................................................................68
5.2.1. Compliance with Warranties, No Default, etc......................................................68
5.2.2. Credit Extension Request.........................................................................68
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc................................................................................69
6.2. Due Authorization, Non-Contravention, etc........................................................69
6.3. Government Approval, Regulation, etc.............................................................69
6.4. Validity, etc....................................................................................70
6.5. Financial Information............................................................................70
6.6. No Material Adverse Effect.......................................................................70
6.7. Litigation, Labor Controversies, etc.............................................................70
6.8. Subsidiaries.....................................................................................71
6.9. Ownership of Properties..........................................................................71
6.10. Taxes............................................................................................71
6.11. Pension and Welfare Plans........................................................................71
6.12. Environmental Warranties.........................................................................71
</TABLE>
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(continued)
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6.13. Regulations U and X..............................................................................73
6.14. Licenses; License Transfer; Option License Transfer..............................................73
6.15. FCC Compliance...................................................................................73
6.16. Accuracy of Information..........................................................................74
6.17. Solvency.........................................................................................75
6.18. Year 2000........................................................................................75
6.19. Credit Facility..................................................................................75
6.20. Interests in Real Property Sufficient for Conduct of Business....................................75
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants............................................................................76
7.1.1. Financial Information, Reports, Notices, etc.....................................................76
7.1.2. Compliance with Laws, etc........................................................................77
7.1.3. Maintenance of Properties........................................................................78
7.1.4. Insurance........................................................................................78
7.1.5. Books and Records................................................................................78
7.1.6. Environmental Covenant...........................................................................78
7.1.7. Future Subsidiaries..............................................................................79
7.1.8. Future Leased Property and Future Acquisitions of Real Property;
Future Acquisition of Other Property...........................................................80
7.1.9. Use of Proceeds, etc.............................................................................81
7.1.10. Hedging Obligations..............................................................................81
7.1.11. Undertaking......................................................................................82
7.1.12. Landlord Consents................................................................................82
7.1.13. Year 2000........................................................................................82
7.1.14. Termination Statements...........................................................................82
7.2. Negative Covenants...............................................................................82
7.2.1. Business Activities..............................................................................82
7.2.2. Indebtedness.....................................................................................83
7.2.3. Liens............................................................................................84
7.2.4. Financial Covenants..............................................................................86
7.2.5. Investments......................................................................................91
7.2.6. Restricted Payments, etc.........................................................................92
7.2.7. Capital Expenditures, etc........................................................................93
7.2.8. Consolidation, Merger, etc.......................................................................94
7.2.9. Asset Dispositions, etc..........................................................................95
7.2.10. Modification of Certain Agreements...............................................................96
</TABLE>
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(continued)
<TABLE>
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7.2.11. Transactions with Affiliates.....................................................................96
7.2.12. Negative Pledges, Restrictive Agreements, etc....................................................96
7.2.13. Liabilities of License Subsidiary................................................................97
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.....................................................................97
8.1.1. Non-Payment of Obligations.......................................................................97
8.1.2. Breach of Warranty...............................................................................97
8.1.3. Non-Performance of Certain Covenants and Obligations.............................................97
8.1.4. Non-Performance of Other Covenants and Obligations...............................................98
8.1.5. Default on Other Indebtedness....................................................................98
8.1.6. Judgments........................................................................................98
8.1.7. Pension Plans....................................................................................98
8.1.8. Control of the Borrower..........................................................................98
8.1.9. Bankruptcy, Insolvency, etc......................................................................99
8.1.10. Impairment of Security, etc......................................................................99
8.1.11. Licenses........................................................................................100
8.1.12. Rights to Use...................................................................................100
8.1.13. Subscription and Contribution Agreement; Expansion Subscription
and Contribution Agreement....................................................................100
8.1.14. License Transfer; Option License Transfer.......................................................100
8.1.15. Nextel Operating Agreements.....................................................................100
8.2. Action if Bankruptcy............................................................................101
8.3. Action if Other Event of Default................................................................101
ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1. Actions.........................................................................................101
9.2. Funding Reliance, etc...........................................................................102
9.3. Exculpation.....................................................................................102
9.4. Successor.......................................................................................103
9.5. Credit Extensions by Each Agent and Issuer......................................................103
9.6. Credit Decisions................................................................................104
9.7. Copies, etc.....................................................................................104
</TABLE>
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(continued)
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9.8. The Syndication Agent, the Documentation Agent and the
Administrative Agent..........................................................................104
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc........................................................................104
10.2. Notices.........................................................................................106
10.3. Payment of Costs and Expenses...................................................................106
10.4. Indemnification.................................................................................107
10.5. Survival........................................................................................108
10.6. Severability....................................................................................108
10.7. Headings........................................................................................108
10.8. Execution in Counterparts, Effectiveness, etc...................................................108
10.9. Governing Law; Entire Agreement.................................................................108
10.10. Successors and Assigns..........................................................................109
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and
Notes.........................................................................................109
10.11.1. Assignments.....................................................................................109
10.11.2. Participations..................................................................................111
10.12. Confidentiality.................................................................................112
10.13. Other Transactions..............................................................................112
10.14. Forum Selection and Consent to Jurisdiction.....................................................113
10.15. Waiver of Jury Trial............................................................................114
</TABLE>
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<PAGE> 8
SCHEDULES:
Schedule I - Disclosure Schedule
Schedule II - Percentages and Administrative Information
Schedule III - Licenses/Network Area
Schedule IV - Original Investors
Schedule V - Option FCC Licenses/Option Territories
Schedule VI - Additional Investors
EXHIBITS:
Exhibit A-1 - Form of Revolving Note
Exhibit A-2 - Form of Term-B Note
Exhibit A-3 - Form of Term-C Note
Exhibit B-1 - Form of Borrowing Request
Exhibit B-2 - Form of Issuance Request
Exhibit C - Form of Continuation/Conversation Notice
Exhibit D - Form of Restatement Effective Date Certificate
Exhibit E - Form of Compliance Certificate
Exhibit F-1 - Form of Borrower Security and Pledge Agreement
Exhibit F-2 - Form of Subsidiary Security and Pledge Agreement
Exhibit G - Form of Parent Guaranty and Pledge Agreement
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of NWIP Undertaking
Exhibit J - Form of Lender Assignment Agreement
Exhibit K - Form of Cash Collateral Agreement
Exhibit L - Form of Assignment Agreement
Exhibit M-1 - Form of Realco Agreement
Exhibit M-2 - Form of Management Agreement
Exhibit N-1 - Form of New York Counsel Opinion
Exhibit N-2 - Form of FCC Counsel Opinion
Exhibit N-3 - Form of Local Counsel Opinion
Exhibit O - Form of Affirmation and Consent
-vii-
<PAGE> 9
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of September 9,
1999, amending and restating the Credit Agreement (as defined below), is among
NEXTEL PARTNERS OPERATING CORP., a Delaware corporation (the "Borrower"), the
various financial institutions as are or may become parties hereto
(collectively, the "Lenders"), DLJ CAPITAL FUNDING, INC. ("DLJ"), as the
syndication agent (the "Syndication Agent") for the Lenders, THE BANK OF NEW
YORK, as the documentation agent (the "Documentation Agent") for the Lenders,
BANK OF MONTREAL ("BOM"), as the administrative agent (the "Administrative
Agent") for the Lenders, and Donaldson, Lufkin & Jenrette Securities
Corporation, as Lead Arranger and Sole Book Running Manager (the Syndication
Agent and the Administrative Agent are sometimes referred to herein as the
"Agents" and each as an "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower is a wholly-owned Subsidiary of Nextel Partners,
Inc., a Delaware corporation (the "Parent");
WHEREAS, the Borrower is engaged in the construction and operation of a
digital wireless communications network (the "Network") utilizing (a)
specialized mobile radio ("SMR") licenses presently owned by an indirect,
wholly-owned subsidiary (the "Nextel License Subsidiary") of Nextel
Communications, Inc., a Delaware corporation ("Nextel"), (b) the Nextel brand
name, (c) Nextel's national switching infrastructure and (d) the "integrated
Dispatch Enhanced Network" or "iDEN" technology developed by Motorola, Inc., a
Delaware corporation ("Motorola"), to serve the markets listed on Schedule III;
WHEREAS, in order to finance a portion of the capital expenditures
associated with the build-out of the Network (the "Network Build-out") and the
ongoing working capital and general corporate needs of the Borrower and its
Subsidiaries, the Borrower, the various financial institutions (the "Original
Lenders") parties thereto on the Closing Date, the Syndication Agent, the
Documentation Agent and the Administrative Agent entered into the Credit
Agreement, dated as of January 29, 1999 (as heretofore modified and supplemented
and in effect from time to time, the "Credit Agreement") pursuant to which the
Original Lenders provided to the Borrower on the terms and conditions set forth
therein
(a) term loans (the "Term-B Loans") made on the Closing Date
in an original principal amount of $175,000,000;
(b) a Revolving Loan Commitment (including availability for
Revolving Loans and Letters of Credit) pursuant to which Borrowings of
Revolving Loans, in a maximum aggregate principal amount (together with
all Letter of Credit Outstandings) not to exceed $100,000,000, could be
made to the Borrower from time to time on and
<PAGE> 10
subsequent to the Closing Date but prior to the Revolving Loan
Commitment Termination Date; and
(c) a Letter of Credit Commitment pursuant to which the Issuer
would issue Letters of Credit for the account of the Borrower from time
to time on and subsequent to the Closing Date but prior to the
Revolving Loan Commitment Termination Date in a maximum aggregate
Stated Amount at any one time outstanding not to exceed $10,000,000
(provided that the aggregate outstanding principal amount of Revolving
Loans and Letter of Credit Outstandings at any time shall not exceed
the then existing Revolving Loan Commitment Amount);
WHEREAS, the Parent intends to exercise its option to acquire certain
SMR licenses (the "Option FCC Licenses") having an aggregate implied value of
approximately $8,800,000 presently owned by NWIP which serve the markets listed
on Schedule V (the "Option Territories");
WHEREAS, subsequent to the Restatement Effective Date (such capitalized
term, and other terms used herein, to have the meanings provided in Section
1.1), the Option License Transfer shall be consummated;
WHEREAS, in order to accomplish the build-out and operation of the
Network in the Option Territories utilizing, among other things, the Option FCC
Licenses, the following capital-raising transactions shall occur prior to or
contemporaneously with the extension of the Term-C Loans hereunder in accordance
with the terms of the Expansion Subscription and Contribution Agreement:
(a) the Parent shall have issued shares of its Series C
Preferred Stock to NWIP having aggregate implied value of approximately
$8,800,000 in exchange for (i) the contribution by NWIP to Nextel WIP
Expansion Corp. of the Option FCC Licenses listed on Schedule V, (ii)
the commitment and obligation of Nextel and NWIP to effect the Option
License Transfer, and (iii) the execution and delivery by Nextel and
NWIP of modifications or extensions of the Nextel Operating Agreements
governing the build-out and operation of the Network in the Option
Territories (collectively, the "Additional Nextel Contribution");
(b) the Parent shall have received a credit in the aggregate
amount of $3,600,000 which may be used, dollar-for-dollar, against the
future purchase price of Motorola's infrastructure equipment to be used
in connection with the Network Build-out from the issuance of its
Series A Preferred Stock to Motorola having an implied value of
approximately $3,600,000 (the "Additional Motorola Contribution");
(c) the Parent shall have received initial cash equity
contributions of (i) approximately $4,300,000 from the issuance of its
Series C Preferred Stock to NWIP and (ii) approximately $12,400,000
from the issuance of its Series A Preferred Stock to
-2-
<PAGE> 11
certain investors listed on Schedule VI (collectively, the "Additional
Investors"), together with irrevocable binding commitments from NWIP
and the Additional Investors to make subsequent cash equity
contributions to the Parent as set forth in the Expansion Subscription
and Contribution Agreement (the "Additional Investors Contribution");
and
(d) all cash and non-cash proceeds received by the Parent from
the Additional Nextel Contribution, the Additional Motorola
Contribution and the Additional Investors Contribution shall be
contributed (or irrevocably committed to be contributed) by the Parent
as an equity contribution to the Borrower (the "Additional Borrower
Equity Contribution"; the Additional Nextel Contribution, the
Additional Motorola Contribution, the Additional Investors Contribution
and the Additional Borrower Equity Contribution and all transactions
related thereto, including those described in the recitals hereto and
the financing described herein, being collectively referred to as the
"Option Capitalization Transaction");
WHEREAS, in order to finance the Option Capitalization Transaction and
pay fees and expenses related thereto and provide for the ongoing working
capital and general corporate needs of the Borrower and its Subsidiaries, the
Borrower desires to amend and restate in its entirety the Credit Agreement to,
among other things, obtain from certain of the Lenders a Term-C Loan Commitment
pursuant to which a single Borrowing of Term-C Loans in a maximum aggregate
principal amount not to exceed $150,000,000 will be made to the Borrower on the
Restatement Effective Date, with all the proceeds of such Term-C Loans to be
used for the purposes set forth in Section 7.1.9;
WHEREAS, all Loans and Obligations shall continue to be and shall be
fully guaranteed by the Parent Guaranty and Pledge Agreement and the Subsidiary
Guaranty and fully secured by, among other things, the Parent Guaranty and
Pledge Agreement, the Borrower Security and Pledge Agreement and the Subsidiary
Security and Pledge Agreement; and
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to (i) amend and restate
in its entirety the Credit Agreement in accordance with the terms hereof and
(ii) extend such Commitments and make Loans to the Borrower and issue (or
participate in) Letters of Credit for the account of the Borrower and its
Subsidiaries pursuant to such Commitments;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context
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<PAGE> 12
otherwise requires, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Additional Borrower Equity Contribution" is defined in clause (d) of
the sixth recital.
"Additional Investors" is defined in clause (c) of the sixth recital.
"Additional Investors Contribution" is defined in clause (c) of the
sixth recital.
"Additional Motorola Contribution" is defined in clause (b) of the
sixth recital.
"Additional Nextel Contribution" is defined in clause (a) of the sixth
recital.
"Adjusted EBITDA" means, for any applicable period, the sum of (i)
Consolidated EBITDA for such period plus (ii) the aggregate amount deducted in
determining Consolidated Net Income for such period in respect of sales,
marketing and advertising expenses.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (i)
to vote 10% or more of the Capital Stock (on a fully diluted basis) of such
Person having ordinary voting power for the election of directors or managing
general partners, or (ii) to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agents" means, collectively, the Administrative Agent and the
Syndication Agent.
"Aggregate Service Revenue" means, for any period, all service
revenues, including subscriber revenues, toll revenues, roaming revenues,
wholesale service revenues and long-distance revenues, of the Borrower and its
Subsidiaries for such period.
"Agreement" means, on any date, this Amended and Restated Credit
Agreement as originally in effect on the Restatement Effective Date and as
thereafter from time to time amended, supplemented, amended and restated, or
otherwise modified and in effect on such date.
"Agreement in Support of Charter Obligations" means the Agreement in
Support of Charter Obligations, dated as of January 29, 1999, between NWIP and
the Parent, as amended, supplemented, amended and restated or otherwise modified
from time to time in accordance with Section 7.2.10.
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<PAGE> 13
"Agreement Specifying Obligations of, and Limiting Liability and
Recourse to, Nextel" means the Agreement Specifying Obligations of, and Limiting
Liability and Recourse to, Nextel, dated as of January 29, 1999, among Nextel,
the Parent and the Borrower, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with Section 7.2.10
"Alternate Base Rate" means, for any day and with respect to all Base
Rate Loans, the higher of: (a) 0.50% per annum above the latest Federal Funds
Rate and (b) the rate of interest in effect for such day as most recently
publicly announced or established by the Administrative Agent in Chicago,
Illinois as its "prime rate". (The "prime rate" is a rate set by the
Administrative Agent based upon various factors including the Administrative
Agent's costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at,
above or below such announced rate.) Any change in the prime rate established or
announced by the Administrative Agent shall take effect at the opening of
business on the day of such establishment or announcement.
"Analog Management Agreement" means the Analog Management Agreement,
dated as of January 29, 1999, by and between the Borrower and NWIP, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Annualized Adjusted EBITDA" means, for the period ending on the last
day of any Fiscal Quarter, the product of (a) Adjusted EBITDA for the two
consecutive Fiscal Quarters ending on such last day, multiplied by (b) two.
"Annualized EBITDA" means, for the period ending on the last day of any
Fiscal Quarter, the product of Consolidated EBITDA for the two consecutive
Fiscal Quarters ending on such last day, multiplied by (b) two.
"Applicable Commitment Fee" means a fee which shall accrue at the
applicable rate per annum set forth below based upon the percentage of the
Revolving Loan Commitments which are unused as of the time of determination:
<TABLE>
<CAPTION>
Undrawn Commitments
as a Percentage of the
Revolving Loan Commitment Commitment Fee
------------------------- --------------
<S> <C>
greater than or equal to 67% 2.00%
greater than or equal to 33%
and less than 67% 1.25%
less than 33% 0.75%
</TABLE>
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<PAGE> 14
"Applicable Margin" means at all times during the applicable periods
set forth below:
(a) with respect to the unpaid principal amount of each Term-B
Loan maintained as a (i) Base Rate Loan, 3.75% per annum and (ii) LIBO
Rate Loan, 4.75% per annum;
(b) with respect to the unpaid principal amount of each Term-C
Loan maintained as a (i) Base Rate Loan, 3.25% per annum and (ii) LIBO
Rate Loan, 4.25% per annum;
(c) from the Closing Date through (but excluding) the date
upon which the first Compliance Certificate demonstrating that
Consolidated EBITDA for the most recent Fiscal Quarter for which a
Compliance Certificate has been delivered by the Borrower to the
Administrative Agent pursuant to clause (c) of Section 7.1.1 is
positive, with respect to the unpaid principal amount of each Revolving
Loan maintained as a (i) Base Rate Loan, 3.25% per annum and (ii) LIBO
Rate Loan, 4.25% per annum; and
(d) at all times from and after the date of such delivery of
the Compliance Certificate described in clause (c) above, with respect
to the unpaid principal amount of each Revolving Loan, by reference to
the applicable Leverage Ratio and at the applicable percentage per
annum set forth below under the caption "Applicable Margin for Base
Rate Loans" or "Applicable Margin for LIBO Rate Loans", as the case may
be:
Applicable Margin For Revolving Loans
<TABLE>
<CAPTION>
Applicable Applicable
Margin For Base Margin For LIBO
Leverage Ratio Rate Loans Rate Loans
-------------- ---------- ----------
<S> <C> <C>
greater than 10.0:1 3.00% 4.00%
greater than 8.0:1 and less
than or equal to 10.0:1 2.75% 3.75%
greater than 7.0:1 and less
than or equal to 8.0:1 2.50% 3.50%
greater than 6.0:1 and less
than or equal to 7.0:1 2.25% 3.25%
greater than 5.0:1 and less
than or equal to 6.0:1 1.75% 2.75%
less than or equal to 5.0:1 1.25% 2.25%
</TABLE>
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<PAGE> 15
The Leverage Ratio used to compute the Applicable Margin for Revolving Loans for
any day shall be the Leverage Ratio set forth in the Compliance Certificate most
recently delivered by the Borrower to the Administrative Agent pursuant to
clause (c) of Section 7.1.1. Changes in the Applicable Margin for Revolving
Loans resulting from a change in the Leverage Ratio shall become effective upon
delivery by the Borrower to the Administrative Agent of a new Compliance
Certificate pursuant to clause (c) of Section 7.1.1. If the Borrower shall fail
to deliver a Compliance Certificate within the number of days after the end of
any Fiscal Quarter as required pursuant to clause (c) of Section 7.1.1 (without
giving effect to any grace period), the Applicable Margin for Revolving Loans
from and including the first day after the date on which such Compliance
Certificate was required to be delivered to, but not including the date the
Borrower delivers to the Administrative Agent an appropriately completed
Compliance Certificate shall conclusively equal the highest Applicable Margin
for Revolving Loans set forth above.
"Approved Affiliate Agreements" means, collectively, the Transaction
Documents and agreements in respect of transactions with Affiliates which have
been approved by a majority of disinterested directors of the board of directors
of the Borrower pursuant to clause (c) of the proviso to Section 7.2.11.
"Asset Transfer and Reimbursement Agreement" means the Asset Transfer
and Reimbursement Agreement, dated as of January 29, 1999, by and between the
Borrower and NWIP, as amended, supplemented, amended and restated and otherwise
modified from time to time in accordance with Section 7.2.10.
"Assignee Lender" is defined in Section 10.11.1.
"Assignment Agreement" means the Assignment Agreement made by the
Borrower, the Parent and Realco in favor of the Administrative Agent on the
Closing Date, including the consents to assignment executed and delivered by the
parties to the Nextel Operating Agreements, substantially in the form of Exhibit
L hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Assignor Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers whose signatures and incumbency shall have been certified to the Agents
and the Lenders pursuant to Section 5.1.2.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"BOM" is defined in the preamble.
"Borrower" is defined in the preamble.
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<PAGE> 16
"Borrower Equity Contribution" means the Original Borrower Equity
Contribution and the Additional Borrower Equity Contribution.
"Borrower Security and Pledge Agreement" means the Security and Pledge
Agreement executed and delivered by an Authorized Officer of the Borrower on the
Closing Date, substantially in the form of Exhibit F-1 hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.1.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means any day which is neither a Saturday or Sunday nor
a legal holiday on which banks are authorized or required to be closed in New
York City or Chicago, Illinois, and, with respect to Borrowings of, Interest
Periods with respect to, payments of principal and interest in respect of, and
conversions of Base Rate Loans into, LIBO Rate Loans, any day on which dealings
in Dollars are carried on in the London interbank market.
"Capital Expenditures" means for any period, the sum, without
duplication, of (i) the aggregate amount of all expenditures of the Borrower and
its Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures (excluding
expenditures made in connection with the replacement or restoration of assets to
the extent such replacement or restoration is financed with insurance proceeds
paid on account of the loss of or damage to the assets so replaced or restored
or awards of compensation arising from the taking by condemnation or eminent
domain of the assets so replaced), and (ii) the aggregate amount of the
principal component of all Capitalized Lease Liabilities for any capitalized
leases entered into during such period by the Borrower and its Subsidiaries.
"Capitalized Lease Liabilities" means, without duplication, all
monetary obligations of the Borrower or any of its Subsidiaries under any
leasing or similar arrangement which, in accordance with GAAP, would be
classified as capitalized leases, and, for purposes of this Agreement and each
other Loan Document, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date upon which such lease may be terminated
by the lessee without payment of a penalty.
"Capital Stock" means, with respect to any Person, (i) any and all
shares, interests, participations, rights or other equivalents of or interests
in (however designated) corporate or capital stock, including, without
limitation, shares of preferred or preference stock of such Person, (ii) all
partnership interests (whether general or limited) in such Person, (iii) all
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<PAGE> 17
membership interests or limited liability company interests in such Person, and
(iv) all other equity or ownership interests in such Person of any other type.
"Cash Account" means an account of the Borrower established and
maintained pursuant to the Borrower Security and Pledge Agreement into which the
Required Balance shall be deposited in cash or Cash Equivalent Investments.
"Cash Collateral Agreement" means the Cash Collateral Agreement
executed and delivered by the Borrower on the Closing Date, substantially in the
form of Exhibit K hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued directly by the United States of America
or any agency thereof or guaranteed by the United States of America or
any agency thereof;
(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by (i) a corporation (other than an
Affiliate of any Obligor) organized under the laws of any state of the
United States or of the District of Columbia and rated at least A-l by
S&P or P-l by Moody's, or (ii) any Lender (or its holding company);
(c) any time deposit, certificate of deposit or bankers
acceptance, maturing not more than one year after such time, maintained
with or issued by either (i) a commercial banking institution
(including U.S. branches of foreign banking institutions) that is a
member of the Federal Reserve System and has a combined capital and
surplus and undivided profits of not less than $500,000,000, or (ii)
any Lender;
(d) short-term tax-exempt securities rated not lower than
MIG-1/1+ by either Moody's or S&P with provisions for liquidity or
maturity accommodations of 183 days or less;
(e) repurchase agreements (i) which, are entered into with any
entity referred to in clause (b) or (c) above or any other financial
institution whose unsecured long-term debt (or the unsecured long-term
debt of whose holding company) is rated at least A- or better by S&P or
Baa1 or better by Moody's and maturing not more than one year after
such time, (ii) which, in the event treated as a secured loan, would be
secured by a fully perfected security interest in securities of the
type referred to in clause (a) above and (iii) involving securities
which have a market value at the time of such repurchase agreement is
entered into of not less than 100% of the repurchase obligation of such
counterparty entity with whom such repurchase agreement has been
entered into; or
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<PAGE> 18
(f) any money market or similar fund the assets of which are
comprised at least 90% of any of the items specified in clauses (a)
through (d) above and as to which withdrawals are permitted at least
every 90 days.
"Casualty Event" means the damage, destruction or condemnation, as the
case may be, of any property of the Borrower or any of its Subsidiaries.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means (i) the failure of the Parent at any time to
own, free and clear of all Liens and encumbrances (other than Liens permitted to
exist under clauses (a), (e) and (h) of Section 7.2.3), all right, title and
interest in 100% of the Capital Stock of the Borrower; (ii) the failure of
Nextel at any time to own, free and clear of all Liens and encumbrances (other
than Liens arising under the Shareholders' Agreement) all right, title and
interest in at least 90% (on a fully diluted basis) of the Capital Stock of the
Parent (other than the Series B Preferred Stock of the Parent) owned by Nextel
on the Closing Date; or (iii) the acquisition of ownership, directly or
indirectly, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the Securities and Exchange Commission
thereunder as in effect on the date hereof), other than the DLJMB Entities,
Nextel and Madison Dearborn, of a number of shares of Capital Stock of the
Parent sufficient to have and exercise voting power for the election of a
majority of the board of directors of the Parent.
"Closing Date" means the date of the initial Credit Extension, which
occurred on January 29, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as the context may require, a Lender's Term-C Loan
Commitment, Revolving Loan Commitment or Letter of Credit Commitment.
"Commitment Amount" means, as the context may require, the Term-C Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount.
"Commitment Letter" means the commitment letter, dated December 30,
1998, among the Parent, the Lead Arranger and the Syndication Agent, including
all annexes and exhibits thereto.
"Commitment Termination Date" means, as the context may require, the
Revolving Loan Commitment Termination Date or the Term-C Loan Commitment
Termination Date.
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<PAGE> 19
"Commitment Termination Event" means (i) the occurrence of any Event of
Default described in clauses (a) through (d) of Section 8.1.9 with respect to
any Obligor (excluding Subsidiaries that are not Material Subsidiaries), or (ii)
the occurrence and continuance of any other Event of Default and either (x) the
declaration of the Loans to be due and payable pursuant to Section 8.3, or (y)
in the absence of such declaration, the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the Borrower that the
Commitments have been terminated.
"Committed Equity" means irrevocable binding commitments to purchase
Preferred Stock of the Parent pursuant to the Subscription and Contribution
Agreement and the Expansion Subscription and Contribution Agreement.
"Communications Act" means the Communications Act of 1934, and any
similar or successor federal statute, and the rules and regulations and
published policies of the FCC thereunder, all as amended and as the same may be
in effect from time to time.
"Compliance Certificate" means a certificate duly completed and
executed by the president, chief executive officer, treasurer, assistant
treasurer, assistant secretary, controller or chief financial Authorized Officer
of the Borrower, substantially in the form of Exhibit E hereto.
"Consolidated Cash Interest Expense" means, for any period on a
consolidated basis for the Parent and its Subsidiaries, (a) Consolidated
Interest Expense for such period minus (b) the aggregate amount of pay-in-kind
or accreted Consolidated Interest Expense for such period not involving any
payment in cash.
"Consolidated EBITDA" means, for any applicable period, the sum
(without duplication) for the Parent and its Subsidiaries on a consolidated
basis of
(a) Consolidated Net Income,
plus
(b) the amount deducted in determining Consolidated Net Income
representing non-cash charges, including depreciation and amortization
and any non-cash expenses incurred by the Parent representing a
valuation charge for annual awards of management stock options or as a
result of the vesting of restricted stock,
plus
(c) the amount deducted in determining Consolidated Net Income
representing income or franchise taxes (whether paid or deferred),
-11-
<PAGE> 20
plus
(d) the amount deducted in determining Consolidated Net Income
representing Consolidated Interest Expense,
plus
(e) to the extent received by the Parent or any of its
Subsidiaries, cash dividends from Investments in Permitted Joint
Ventures,
minus
(f) Restricted Payments of the type referred to in clause (b)
of Section 7.2.6 made during such period.
"Consolidated Interest Expense" means, for any applicable period, the
aggregate consolidated interest expense (whether cash or non-cash) of the Parent
and its Subsidiaries for such applicable period, as determined in accordance
with GAAP, including the portion of any payments made in respect of Capitalized
Lease Liabilities allocable to interest expense and the aggregate amount of
pay-in-kind or accreted Consolidated Interest Expense for such period not
involving a payment in cash.
"Consolidated Net Income" means, for any period, the net income of the
Parent and its Subsidiaries for such period on a consolidated basis (including
cash income received by the Parent and its Subsidiaries from Investments in
Permitted Joint Ventures), excluding extraordinary or non-recurring gains,
credits, losses and expenses.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the indebtedness,
obligation or any other liability of any other Person (other than by
endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of Capital Stock of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount of the debt, obligation or other liability
guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Contributed Equity" means at any time or for any period, the sum of
(a) the aggregate amount of cash which shall have been received by the Parent
and contributed to the Borrower prior to such time or during such period as
consideration for the issuance of Preferred Stock of
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<PAGE> 21
the Parent pursuant to the Subscription and Contribution Agreement and the
Expansion Subscription and Contribution Agreement, (b) cash proceeds from the
sale by the Parent of the Senior Notes, (c) $131,000,000, the agreed value of
the Original Nextel Contribution, (d) $22,000,000, the agreed value of the
Motorola Contribution, (e) $22,000,000, the agreed value of the Additional
Nextel Contribution and (f) the fair market value as reasonably determined by
the board of directors of the Borrower in good faith of any non-cash assets or
items contributed to the Borrower as a capital contribution or in exchange for
Capital Stock of the Borrower.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA, or for purposes of Section 412, Section 414(m) or
Section 414(o) of the Code.
"Copyright Security Agreement" means any Copyright Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit C to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Covered POPs" means the aggregate number of POPs within each market or
geographical area specified on Schedule III for which facilities in commercial
operation owned by the Borrower or its Subsidiaries have achieved substantial
completion.
"Credit Agreement" is defined in the third recital.
"Credit Extension" means, as the context may require, (i) the making of
a Loan by a Lender or (ii) the issuance of any Letter of Credit, or the
extension of any Stated Expiry Date of any previously issued Letter of Credit,
by the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Current Assets" means, on any date, without duplication, all assets
which, in accordance with GAAP, would be included as current assets on a
consolidated balance sheet of the Borrower and its Subsidiaries at such date as
current assets (excluding, however, amounts due and to become due from
Affiliates of the Borrower which have arisen from transactions which are neither
arm's-length and in the ordinary course of its business nor pursuant to an
Approved Affiliate Agreement).
"Current Liabilities" means, on any date, without duplication, all
amounts which, in accordance with GAAP, would be included as current liabilities
on a consolidated balance sheet of the Borrower and its Subsidiaries at such
date, excluding current maturities of Indebtedness.
-13-
<PAGE> 22
"Debt" means, without duplication, the outstanding principal amount of
all Indebtedness of the Parent and its Subsidiaries that is of the type referred
to in clause (a), (b), (c) or (e) of the definition of "Indebtedness" and any
Contingent Liability in respect of any of the foregoing.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would, unless cured or
waived, constitute an Event of Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disbursement Due Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Required Lenders.
"DLJ" is defined in the preamble.
"DLJMB Entities" means DLJ Merchant Banking Partners II, L.P., DLJ
Merchant Banking II, Inc., DLJ Capital Corp., Sprout Capital VIII, L.P. and any
other Affiliates of DLJ.
"Documentation Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Documentation Agent by the predecessor Documentation Agent.
"Dollar" and the sign "$" mean lawful money of the United States.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules and regulations (including consent
decrees and administrative orders) relating to public health and safety and
protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" is defined in Section 8.1.
"Excess Cash Flow" means, for any applicable period, the excess (if
any), of
(a) Consolidated EBITDA for such applicable period;
over
(b) the sum, without duplication (for such applicable period)
of
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<PAGE> 23
(i) Consolidated Cash Interest Expense (net of
interest income) for such applicable period;
plus
(ii) scheduled payments and optional and mandatory
prepayments, to the extent actually made, of the principal
amount of the Term Loans or any other funded Debt (including
the principal component of any Capitalized Lease Liabilities)
and mandatory prepayments of the principal amount of the
Revolving Loans pursuant to clause (g) of Section 3.1.1 in
connection with a reduction of the Revolving Loan Commitment
Amount, in each case for such applicable period;
plus
(iii) all federal, state, local and foreign income
and franchise taxes actually paid in cash by the Parent and
its Subsidiaries and Restricted Payments made by the Borrower
pursuant to clause (b) of Section 7.2.6 for such applicable
period;
plus
(iv) Capital Expenditures actually made or committed
to be made during such applicable period pursuant to clause
(a) of Section 7.2.7 (excluding Capital Expenditures
constituting Capitalized Lease Liabilities and by way of the
incurrence of Indebtedness permitted pursuant to clause (b) of
Section 7.2.2 to a vendor of any assets permitted to be
acquired pursuant to Section 7.2.7 to finance the acquisition
of such assets);
plus
(v) the amount of the net increase (or minus, in the
case of a net decrease) of Current Assets, other than cash and
Cash Equivalent Investments, over Current Liabilities of the
Parent and its Subsidiaries for such applicable period;
plus
(vi) Investments permitted and actually made pursuant
to clauses (d), (f), and (h) of Section 7.2.5 during such
applicable period.
"Excluded Equity Proceeds" means any proceeds received by the Parent or
the Borrower from the sale or issuance by such Person of its Capital Stock or
any warrants or options in respect of any such Capital Stock or the exercise of
any such warrants or options, which proceeds are received pursuant to any such
sale, issuance or exercise constituting or resulting from (i) capital
contributions to, or Capital Stock issuances by, the Parent or the Borrower
(exclusive of any such contribution or issuance resulting from a Public Offering
or a widely
-15-
<PAGE> 24
distributed private offering exempted from the registration requirements of
Section 5 of the Securities Act of 1933, as amended), (ii) the sale of any
Capital Stock of the Parent or the Borrower to any officer, director or employee
of such Person or any of its Subsidiaries pursuant to any subscription
agreement, incentive plan or similar arrangement with any officer, employee or
director of such Person or any of its Subsidiaries, provided such proceeds do
not exceed $5,000,000 in the aggregate, (iii) any loan made by the Parent, the
Borrower or any of their respective Subsidiaries pursuant to clause (f) of
Section 7.2.5, (iv) any Preferred Stock Issuance or (v) the Investors
Contribution.
"Expansion Subscription and Contribution Agreement" means the Expansion
Subscription and Contribution Agreement, dated as of September 9, 1999, among
the Parent and the other investors parties thereto, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
Section 7.2.10.
"Expansion Territories Management Agreement" means the Expansion
Territories Management Agreement, dated as of September 9, 1999, by and between
the Borrower and NWIP, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with Section 7.2.10.
"Expansion Territory Asset Transfer and Reimbursement Agreement" means
the Expansion Territory Asset Transfer and Reimbursement Agreement, dated as of
September 9, 1999, by and between the Borrower and NWIP, as amended,
supplemented, amended and restated and or otherwise modified from time to time
in accordance with Section 7.2.10.
"FCC" means the Federal Communication Commission, or any other similar
or successor agency of the federal government administering the Communications
Act.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the confidential fee letter, dated December 30,
1998, among the Lead Arranger and the Syndication Agent.
"Fiscal Quarter" means any quarter of a Fiscal Year.
-16-
<PAGE> 25
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31 of any calendar year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal Quarter,
the ratio computed for the period consisting of such Fiscal Quarter and each of
the three immediately prior Fiscal Quarters of
(a) Annualized EBITDA as of such Fiscal Quarter
to
(b) the sum (without duplication) of
(i) Consolidated Cash Interest Expenses (net of
interest income) for all such Fiscal Quarters;
plus
(ii) all scheduled payments of principal of the Term
Loans and other funded Debt during all such Fiscal Quarters,
exclusive, however, of any payment in respect of principal of
the Revolving Loans, other than any such payment to the extent
resulting from a permanent decrease of the Revolving Loan
Commitment Amount;
plus
(iii) all federal, state, local and foreign income
and franchise taxes actually paid in cash by the Parent and
its Subsidiaries during such period, net (without duplication)
of all cash tax refunds received during such period; provided,
that, after giving effect to any such deductions for tax
refunds, the amount calculated pursuant to this clause (iii)
for any applicable period shall not be less than zero.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Georgia Option Territories Exchange" means any exchange of Option FCC
Licenses or other assets related to Option Territories in the State of Georgia
for other Option FCC Licenses or other assets or cash between the Parent or any
of its Subsidiaries and Nextel or any Affiliate of Nextel which the Board of
Directors of the Parent or such Subsidiary determines in good faith, on the date
of such exchange, are, in the aggregate, of at least equivalent value.
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<PAGE> 26
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(i) which is of a "going concern" or similar nature, (ii) which relates to the
limited scope of examination of matters relevant to such financial statement, or
(iii) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would require an
adjustment to such item the effect of which would be to cause such Obligor to be
in default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
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<PAGE> 27
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or for
the deferred purchase price of property or services (exclusive of
deferred purchase price arrangements in the nature of open or other
accounts payable owed to suppliers on normal terms in connection with
the purchase of goods and services in the ordinary course of business)
and all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities;
(d) net liabilities of such Person under all Hedging
Obligations;
(e) whether or not so included as liabilities in accordance
with GAAP, all Indebtedness of the types referred to in clauses (a)
through (d) above (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including
Indebtedness arising under conditional sales or other title retention
agreements), whether or not such Indebtedness shall have been assumed
by such Person or is limited in recourse; provided, however, that, to
the extent such Indebtedness is limited in recourse to the assets
securing such Indebtedness, the amount of such Indebtedness shall be
limited to the fair market value of such assets; and
(f) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer (to the extent such Person is liable for
such Indebtedness).
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Infrastructure Equipment Purchase Agreement" means the Infrastructure
Equipment Purchase Agreement, dated as of January 29, 1999, between Motorola and
the Borrower, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with Section 7.2.10.
"Initial POPs" means, as of the Closing Date, 4,500,000 POPs.
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"Interest Period" means, as to any LIBO Rate Loan, the period
commencing on the Borrowing date of such Loan or on the date on which the Loan
is converted into or continued as a LIBO Rate Loan, and ending on the date one,
two, three, six or, if available to all Lenders, in the reasonable determination
of each Lender, nine or twelve months thereafter as selected by the Borrower in
its Borrowing Request or its Conversion/Continuation Notice; provided, however,
that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period;
(iii) no Interest Period for any Loan shall extend beyond the
Stated Maturity Date for such Loan;
(iv) no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of such Term Loans unless the aggregate
principal amount of such Term Loans represented by Base Rate Loans, or
by LIBO Rate Loans having Interest Periods that will expire on or
before such date, equals or exceeds the amount of such principal
payment; and
(v) there shall be no more than ten Interest Periods in effect
at any one time.
"Interim Management Agreement" means the Interim Management Agreement,
dated as of January 29, 1999, by and between the Parent and NWIP, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Investment" means, relative to any Person, (i) any loan or advance
made by such Person to any other Person (excluding commission, travel,
relocation and similar advances to officers, directors and employees made in the
ordinary course of business), or (ii) any investment, contribution or similar
transfer made by such Person for purposes of acquiring or maintaining any
ownership or similar interest in another Person or a business of another Person
(whether through the ownership or acquisition of Capital Stock, revenues or
profits or otherwise, including by way of merger, consolidation or otherwise).
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property at the time of such transfer or exchange.
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"Investors Contribution" means the Original Investors Contribution and
the Additional Investors Contribution.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, in substantially the
form of Exhibit B-2 attached hereto.
"Issuer" means the Administrative Agent, in its capacity as Issuer of
Letters of Credit and any other Lender as may be designated by the Borrower (and
consented to by the Administrative Agent and such Lender, such consent by the
Administrative Agent not to be unreasonably withheld) in its capacity as Issuer
of Letters of Credit.
"Itemized Executive" means any of the following individuals: (i) John
Chapple, (ii) John Thompson, (iii) David Thaler, (iv) David Aas, (v) Perry
Satterlee, and (vi) Mark Fanning.
"Joint Venture Agreement" means the Joint Venture Agreement, dated as
of January 29, 1999, by and among the Parent, the Borrower and NWIP, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Lead Arranger" means Donaldson, Lufkin & Jenrette Securities
Corporation, a Delaware corporation.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit J hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.4.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.4 and,
with respect to each of the other Lenders that has a Revolving Loan Commitment,
the obligation of each such Lender to participate in such Letters of Credit
pursuant to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $10,000,000, as such amount may be reduced from time to time pursuant
to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of
(a) the then aggregate amount which is undrawn and available
under all issued and outstanding Letters of Credit (whether or not the
conditions to drawing thereunder could be satisfied on such date),
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<PAGE> 30
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations in respect of such Letters of Credit.
"Leverage Ratio" means, at the end of any Fiscal Quarter, the ratio of
(a) Total Debt outstanding at such time;
to
(b) Annualized EBITDA for the period ending on the last day of
such Fiscal Quarter.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest per annum (rounded upwards, if necessary, to the nearest
1/100th of 1%) for deposits in Dollars, if any, for a period equal to the
relevant Interest Period which appears on Telerate page 3750 (or any successor
page thereto) at approximately 11:00 a.m., London time, two Business Days prior
to the commencement of such Interest Period. If such a rate does not appear on
Telerate Page 3750 (or any successor page), the LIBO Rate shall be the rate of
interest per annum determined by the Administrative Agent to be the arithmetic
mean (rounded upwards, if necessary, to the nearest 1/100th of 1%) of the rates
of interest per annum at which Dollar deposits in the approximate amount of the
Loan to be made or continued as, or converted into, a LIBO Rate Loan by the
Administrative Agent and having a maturity comparable to such Interest Period
would be offered to the Administrative Agent in the London interbank market at
its request at approximately 11:00 a.m. (London time) two Business Days prior to
the commencement of such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, the rate of interest per annum (rounded upwards to the next 1/100th of
1%) determined by the Administrative Agent as follows:
LIBO Rate = LIBO Rate
-------------------------------
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Loans will be adjusted automatically as to all LIBO Rate Loans then outstanding
as of the effective date of any change in the LIBOR Reserve Percentage.
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"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such on Schedule II hereto or designated in the Lender Assignment
Agreement pursuant to which such Lender became a Lender hereunder or such other
office of a Lender as shall be so designated from time to time by notice from
such Lender to the Borrower and the Administrative Agent, which shall be making
or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day (whether or not applicable to any
Lender) under regulations issued from time to time by the F.R.S. Board for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the F.R.S. Board).
"License" means any mobile telephone, cellular telephone, two-way
dispatch, paging and alphanumeric short-messaging license, authorization,
certificate of compliance, franchise, approval or permit issued by the FCC in
connection with the construction or operation of the Network in the markets
listed on Schedule III and Schedule V or other markets acquired in connection
with a Georgia Option Territories Exchange.
"License Exchange" means (a) any exchange of Licenses between the
Borrower and Nextel or any Affiliate of Nextel made in accordance with Article 4
of the Joint Venture Agreement, (b) any exchange of Licenses between the Parent
or any of its Subsidiaries and Nextel or any Affiliate of Nextel which the Board
of Directors of the Parent or such Subsidiary determines in good faith, on the
date of such exchange, are, in the aggregate, of at least equivalent value, or
(c) any transaction pursuant to which the Parent or any of its Subsidiaries
transfers certain of its Licenses to Nextel or any Affiliate of Nextel in
exchange for Licenses from a third party, the purchase price for which was
funded by Nextel or any Affiliate of Nextel.
"License Subsidiary" means Nextel WIP License Corp., a Delaware
corporation, Nextel WIP Expansion Corp. and/or any other wholly-owned Subsidiary
of the Borrower designated as a License Subsidiary by notice to the Agents;
provided, however, that (i) such Subsidiary has no obligations or liabilities
other than under the Communications Act and taxes incurred in the ordinary
course in order for it to continue to maintain its existence and (ii) all the
outstanding Capital Stock of such Subsidiary is pledged to the Administrative
Agent for the benefit of the Lenders in accordance with the terms of the
Borrower Security and Pledge Agreement.
"License Transfer" means each of the following events or conditions
shall have been certified in writing by the Borrower to the Agents to have
occurred or been satisfied, in each case pursuant to documentation reasonably
satisfactory to the Agents, and the Borrower shall have certified such
occurrence or satisfaction in writing to the Agents and the Lenders:
(a) all of the issued and outstanding shares of Capital Stock
of the Nextel License Subsidiary shall have been unconditionally
transferred and assigned, free and clear of all
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<PAGE> 32
Liens, to the Borrower or a License Subsidiary, and the Administrative
Agent shall have received certificates evidencing all of the issued and
outstanding shares of Capital Stock of the Nextel License Subsidiary
which shall be pledged pursuant to the Borrower Security and Pledge
Agreement, together with undated stock powers duly executed in blank;
(b) all consents and approvals necessary or required to be
obtained from the FCC or any other governmental authority or Person in
connection with such transfer and assignment of the Capital Stock of
the Nextel License Subsidiary shall have been received and are in full
force and effect;
(c) the Borrower shall represent and warrant to the Agents and
each Lender that as of the time of such transfer and assignment,
subject to Item 6.15 ("Schedule of Exceptions") of the Disclosure
Schedule, the Nextel License Subsidiary shall hold, free and clear of
all Liens and encumbrances, all of the Licenses necessary for the
Borrower to construct, install and develop the Network, and to operate
those portions of the Network for which development has been completed,
in the markets listed on Schedule III;
(d) the Nextel License Subsidiary shall not be or have become
liable or otherwise obligated in respect of any Indebtedness (including
any Capitalized Lease Liability) other than Indebtedness which shall
have been approved in writing by the Required Lenders;
(e) the Nextel License Subsidiary shall not have created,
incurred, assumed, or entered into any agreement which by its terms
creates, incurs or assumes any Lien upon any of its assets;
(f) no Event of Default shall have then occurred and be
continuing; or if an Event of Default shall have occurred and be
continuing, the Administrative Agent, on behalf of the Lenders, shall
not have commenced to exercise the rights and remedies provided in the
Borrower Security and Pledge Agreement in respect thereof; and
(g) all consents and approvals necessary or, in the opinion of
the Administrative Agent, desirable to be obtained from any
governmental authority or regulatory body of the State of Hawaii in
order to perfect the security interest of the Administrative Agent in
Collateral owned by NPCR shall have been received and shall be in full
force and effect.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or any filing or recording of any
instrument or document in respect of the foregoing, to secure payment of a debt
or performance of an obligation or any other priority or preferential treatment
of any kind or nature whatsoever that has the practical effect of creating a
security interest in property.
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<PAGE> 33
"Loan" means, as the context may require, a Revolving Loan or a Term
Loan, of any type.
"Loan Document" means this Agreement, the Notes, the Letters of Credit,
each Rate Protection Agreement under which the counterparty to such agreement is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate of a Lender relating to Hedging Obligations of the Borrower or
any of its Subsidiaries, each Borrowing Request, each Issuance Request, the Fee
Letter, the Term-C Loan Fee Letter, the Subsidiary Guaranty, each Mortgage (upon
execution and delivery thereof), each Security Document, the Realco Agreement,
the Management Agreement and each other agreement, document or instrument
delivered in connection with this Agreement or any other Loan Document, whether
or not specifically mentioned herein or therein.
"Madison Dearborn" means Madison Dearborn Capital Partners II L.P. and
any of its Affiliates.
"Management Agreement" means the agreement executed and delivered by
Authorized Officers of each of the Borrower and Realco on the Closing Date,
substantially in the form of Exhibit M-2 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Master Site Lease Agreement" means the Master Site Lease Agreement,
dated as of January 29, 1999, between NWIP and the Parent, as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with Section 7.2.10.
"Material Adverse Effect" means (a) a material adverse effect on the
financial condition, operations, assets, business, properties or prospects of
the Borrower and its Subsidiaries, taken as a whole, (b) a material impairment
of the legal ability or the legal right or power of the Borrower or any other
Obligor to perform its respective material obligations under the Loan Documents
to which it is or will be a party, or (c) an impairment of the validity or
enforceability of, or a material impairment of the rights, remedies or benefits
available to the Issuer, the Agents, the Lead Arranger or the Lenders under,
this Agreement or any other Loan Document.
"Material Obligor" means an Obligor that is either the Borrower, the
Parent or a Material Subsidiary.
"Material Subsidiary" means any direct or indirect Subsidiary of the
Parent which, at the date of determination, together with its Subsidiaries, (i)
contributed more than 5% of the consolidated revenues of the Parent and its
Subsidiaries for the most recent Fiscal Year of the Parent or (ii) owned more
than 5% of the consolidated assets of the Parent and its Subsidiaries as of the
end of such Fiscal Year, all as set forth on the most recently available
consolidated financial statements of the Parent for such Fiscal Year; provided,
that any Subsidiary of the Parent which holds a License, including the License
Subsidiary, shall at all times constitute a Material Subsidiary.
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<PAGE> 34
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means, collectively, each Mortgage or Deed of Trust executed
and delivered pursuant to the terms of this Agreement, including pursuant to
clause (b) of Section 7.1.8, in form and substance reasonably satisfactory to
the Agents.
"Motorola" is defined in the second recital.
"Motorola Contribution" means the Original Motorola Contribution and
the Additional Motorola Contribution.
"Net Casualty Proceeds" means, with respect to any Casualty Event, the
amount of any insurance proceeds or condemnation awards received by the Borrower
or any of its Subsidiaries in connection therewith, but excluding any proceeds
or awards required to be paid to a creditor (other than the Lenders) which holds
a first-priority Lien permitted by Section 7.2.3 on the property which is the
subject of such Casualty Event and net of reasonable and customary fees and
expenses (including reasonable attorneys fees and expenses) actually incurred in
connection therewith and net of taxes and other governmental costs and expenses
actually paid or estimated by the Borrower (in good faith) to be payable in cash
in connection therewith.
"Net Debt Proceeds" means, with respect to the incurrence, sale or
issuance by the Borrower or any of its Subsidiaries of any Debt (other than Debt
incurred as part of the Transaction, the Option Capitalization Transaction and
other Debt permitted by Section 7.2.2), the excess of:
(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from such incurrence, sale or issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage and accounting and other
professional fees, sales commissions and disbursements and all other
reasonable fees, expenses and charges, in each case actually incurred
in connection with such incurrence, sale or issuance.
"Net Disposition Proceeds" means, with respect to any sale, transfer or
other disposition of any assets of the Borrower or any of its Subsidiaries
(other than transfers made as part of the Transaction, the Option Capitalization
Transaction, a Georgia Option Territories Exchange and other sales permitted
pursuant to clause (a) of Section 7.2.9), including any sale, transfer or other
disposition of any Capital Stock of any such Subsidiary, the excess of
(a) the gross cash proceeds received by the Borrower or any of
its Subsidiaries from any such sale, transfer or other disposition and
any cash payments received in
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<PAGE> 35
respect of promissory notes or other non-cash consideration delivered
to the Borrower or such Subsidiary in respect thereof,
less
(b) the sum (without duplication) of (i) all reasonable and
customary fees and expenses with respect to legal, investment banking,
brokerage, accounting and other professional fees, sales commissions
and disbursements and all other reasonable fees, expenses and charges,
in each case actually incurred in connection with such sale, transfer
or other disposition, (ii) all taxes and other governmental costs and
expenses actually paid or estimated by the Borrower (in good faith) to
be payable in cash in connection with such sale, transfer or other
disposition, (iii) payments made by the Borrower or any of its
Subsidiaries to retire Indebtedness (other than the Loans) of the
Borrower or any of its Subsidiaries that is secured by a first-priority
Lien permitted by Section 7.2.3 on the property which is the subject of
such sale, transfer or other disposition, (iv) in the case of any sale,
transfer or other disposition of any Capital Stock of any Subsidiary of
the Borrower, amounts payable to minority equity holders of such
Subsidiary, if any, and (v) appropriate amounts provided or to be
provided by the Borrower or any of its Subsidiaries as a reserve, in
accordance with GAAP, with respect to any liabilities associated with
such sale, transfer or other disposition;
provided, however, that if, (i) after the payment of all taxes with respect to
such sale, transfer or other disposition, the amount of estimated taxes, if any,
pursuant to clause (b)(ii) above exceeded the tax amount actually paid in cash
in respect of such sale, transfer or other disposition or (ii) after providing
reserves against liabilities associated with such sale, transfer or other
disposition, the amount of estimated reserves, if any, provided pursuant to
clause (b)(v) above exceeded the amount of reserves actually drawn in cash in
respect of such sale, transfer or other disposition, the aggregate amount of all
such excess shall be immediately payable, pursuant to clause (d) of Section
3.1.1, as Net Disposition Proceeds.
"Net Equity Proceeds" means with respect to the sale or issuance by the
Borrower or Parent to any Person of any of its Capital Stock or any warrants or
options with respect to its Capital Stock or the exercise of any such warrants
or options after the Closing Date (exclusive of any proceeds constituting
Excluded Equity Proceeds), the excess of:
(a) the gross cash proceeds received by Parent, the Borrower
and the Borrower's Subsidiaries from such sale, exercise or issuance,
over
(b) all reasonable and customary underwriting commissions and
legal, investment banking, brokerage, accounting and other professional
fees, sales commissions and disbursements and all other reasonable
fees, expenses and charges, in each case actually incurred in
connection with such sale or issuance.
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"Network" is defined in the second recital.
"Network Build-out" is defined in the third recital.
"Net Worth" means the consolidated net worth of the Borrower and its
Subsidiaries.
"Nextel" is defined in the second recital.
"Nextel Contribution" means the Original Nextel Contribution and the
Additional Nextel Contribution.
"Nextel License Subsidiary" is defined in the second recital.
"Nextel Operating Agreements" means, collectively, the Joint Venture
Agreement, the Interim Management Agreement, the Analog Management Agreement,
the Expansion Territories Management Agreement, the Trademark License Agreement,
the Asset Transfer and Reimbursement Agreement, the Expansion Territory Asset
Transfer and Reimbursement Agreement, the Transition Services Agreement, the
Switch Sharing Agreement, the Roaming Agreement, the Master Site Lease
Agreement, the Infrastructure Equipment Purchase Agreement, the Agreement in
Support of Charter Obligations, the Subscriber Purchase and Distribution
Agreement, the Agreement Specifying Obligations of, and Limiting Liability and
Recourse to, Nextel and all other contracts, documents and agreements
contemplated thereunder.
"Nextel WIP Expansion Corp." means Nextel WIP Expansion Corp., a
Delaware corporation and an indirect wholly-owned Subsidiary of Nextel.
"Non-U.S. Lender" means any Lender (including each Assignee Lender)
that is not (i) a citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any state thereof, or (iii) an estate or trust that is subject
to U.S. Federal income taxation regardless of the source of its income.
"Non-U.S. Subsidiary" means a Subsidiary of the Borrower that is not a
U.S. Subsidiary.
"Note" means, as the context may require, a Revolving Note, a Term-B
Note or a Term-C Note.
"NPCR" means NPCR, Inc., a Delaware corporation and a wholly-owned
Subsidiary of the Borrower.
"NWIP" means Nextel WIP Corp., a Delaware corporation and an indirect,
wholly-owned Subsidiary of Nextel.
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<PAGE> 37
"NWIP Undertaking" means the undertaking agreement executed and
delivered by an Authorized Officer of NWIP on the Closing Date, substantially in
the form of Exhibit I hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower and each other Obligor arising under or in connection with this
Agreement, any Rate Protection Agreement (but only if designated as an
Obligation by the Borrower), the Notes, each Letter of Credit and each other
Loan Document.
"Obligor" means the Parent, the Borrower, the Nextel License
Subsidiary, any License Subsidiary, Realco or any other Person (other than any
Agent, the Lead Arranger, or any Lender) obligated under any Loan Document.
"Option Capitalization Transaction" is defined in clause (d) of the
sixth recital.
"Option FCC Licenses" is defined in the fourth recital.
"Option License Transfer" means each of the following events or
conditions shall have been certified in writing by the Borrower to the Agents to
have occurred or been satisfied, in each case pursuant to documentation
reasonably satisfactory to the Agents, and the Borrower shall have certified
such occurrence or satisfaction in writing to the Agents and the Lenders:
(a) all of the issued and outstanding shares of Capital Stock
of Nextel WIP Expansion Corp. shall have been unconditionally
transferred and assigned, free and clear of all Liens, to the Borrower
or a License Subsidiary, and the Administrative Agent shall have
received certificates evidencing all of the issued and outstanding
shares of Capital Stock of Nextel WIP Expansion Corp. which shall be
pledged pursuant to the Borrower Security and Pledge Agreement,
together with undated stock powers duly executed in blank;
(b) all consents and approvals necessary or required to be
obtained from the FCC or any other governmental authority or Person in
connection with such transfer and assignment of the Capital Stock of
Nextel WIP Expansion Corp. shall have been received and are in full
force and effect;
(c) the Borrower shall represent and warrant to the Agents and
each Lender that as of the time of such transfer and assignment,
subject to Item 6.15 ("Schedule of Exceptions") of the Disclosure
Schedule, Nextel WIP Expansion Corp. shall hold, free and clear of all
Liens and encumbrances, all of the Option FCC Licenses necessary for
the Borrower to construct, install and develop the Network, and to
operate those portions of the Network for which development has been
completed, in the markets listed on Schedule V;
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<PAGE> 38
(d) Nextel WIP Expansion Corp. shall not be or have become
liable or otherwise obligated in respect of any Indebtedness (including
any Capitalized Lease Liability) other than Indebtedness which shall
have been approved in writing by the Required Lenders;
(e) Nextel WIP Expansion Corp. shall not have created,
incurred, assumed, or entered into any agreement which by its terms
creates, incurs or assumes any Lien upon any of its assets;
(f) no Event of Default shall have then occurred and be
continuing; or if an Event of Default shall have occurred and be
continuing, the Administrative Agent, on behalf of the Lenders, shall
not have commenced to exercise the rights and remedies provided in the
Borrower Security and Pledge Agreement in respect thereof; and
(g) all consents and approvals necessary or, in the opinion of
the Administrative Agent, desirable to be obtained from any
governmental authority or regulatory body of the State of Georgia in
order to perfect the security interest of the Administrative Agent in
Collateral owned by the Borrower shall have been received and shall be
in full force and effect.
"Option Territories" is defined in the fourth recital.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements to which such Obligor is a party applicable to any of its
authorized shares of Capital Stock.
"Original Borrower Equity Contribution" means the cash and non-cash
proceeds received by the Parent from the Original Nextel Contribution, the
Original Motorola Contribution, the Original Investors Contribution and the
Senior Discount Notes Issuance contributed by the Parent on the Closing Date as
an equity contribution to the Borrower.
"Original Investors" means the entities and individuals listed on
Schedule IV hereto.
"Original Investors Contribution" means the initial cash equity
contribution of the Original Investors of approximately $52,133,333 from the
issuance of the Parent's Series A Preferred Stock to the Original Investors on
the Closing Date, together with the irrevocable binding commitments from the
Original Investors to make subsequent cash equity contributions to the Parent as
set forth in the Subscription and Contribution Agreement.
"Original Lenders" is defined in the third recital.
"Original Motorola Contribution" means the credit received by the
Parent in the aggregate amount of $18,400,000 which may be used,
dollar-for-dollar, against the future purchase price of Motorola's
infrastructure equipment to be used in connection with the Network
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<PAGE> 39
Build-out from the issuance to Motorola on the Closing Date of the Parent's
Series A Preferred Stock having an implied value of approximately $18,400,000.
"Original Nextel Contribution" means the equity contribution of Nextel
having an aggregate implied value of approximately $131,000,000 from the
issuance of the Parent's Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock to NWIP on the Closing Date in exchange for (i) the
contribution by NWIP to the Nextel License Subsidiary of the Licenses listed on
Schedule III, (ii) the commitment and obligation of Nextel and NWIP to effect
the License Transfer and (iii) the execution and delivery by NWIP of certain
agreements relating to the operation of the Network.
"Parent" is defined in the first recital.
"Parent Guaranty and Pledge Agreement" means the Guaranty and Pledge
Agreement executed and delivered by an Authorized Officer of the Parent on the
Closing Date, substantially in the form of Exhibit G hereto, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Participant" is defined in Section 10.11.2.
"Patent Security Agreement" means any Patent Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit A to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, has or within the prior six years has had any
liability, including any liability by reason of having been a substantial
employer within the meaning of section 4063 of ERISA at any time during the
preceding five years, or by reason of being deemed to be a contributing sponsor
under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the applicable percentage
relating to Term-B Loans, Term-C Loans or Revolving Loans, as the case may be,
as set forth opposite its name on Schedule II hereto under the applicable column
heading or set forth in Lender Assignment Agreement(s) under the applicable
column heading, as such percentage may be adjusted from time to time pursuant to
Lender Assignment Agreement(s) executed by such Lender and its Assignee
Lender(s) and delivered pursuant to Section 10.11. A Lender shall not have any
Commitment to make Revolving Loans, Term-B Loans or Term-C Loans (as the case
may be) if its percentage under the respective column heading is zero.
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"Perfection Certificate" means the Perfection Certificate executed and
delivered by an Authorized Officer of the Borrower or a Subsidiary of the
Borrower pursuant to the relevant Security Agreement, substantially in the form
of Exhibit E to the relevant Security Agreement, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Permitted Joint Venture" means any joint venture entered into by the
Parent or any of its Subsidiaries with a third party (a) for the purpose of
financing the acquisition or lease of telecommunications towers for use in the
markets listed on Schedule III, Schedule V, other markets acquired in connection
with a Georgia Option Territories Exchange or the other markets that the
Borrower has the option to include in the "Territory" (pursuant to and as
defined in the Joint Venture Agreement); provided, that the aggregate fair
market value of all assets contributed by the Parent or any of its Subsidiaries
to any joint venture pursuant to this clause (a) shall not exceed $15,000,000
(as determined in good faith by the board of directors of the Parent) or (b) in
which that the Parent or any of its Subsidiaries (i) is responsible for the
managerial control of such joint venture, (ii) owns at least 40% of the
outstanding Capital Stock of such joint venture and (iii) such joint venture,
together with all other Permitted Joint Ventures described in this clause (b),
does not cover or service more than 10% of the POPs (computed by including only
a percentage of the total POPs equal to the Parent's percentage ownership in
that joint venture) covered by the Parent at the date of determination (as
determined in good faith by the board of directors of the Parent).
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" means any Pension Plan or Welfare Plan.
"POPs" means population equivalents as estimated by the Parent as of
1998 by extrapolation from the 1990 U.S. Census and other publicly available
information.
"Preferred Stock" means, collectively, the Series A Preferred Stock,
the Series B Preferred Stock, the Series C Preferred Stock and the Series D
Preferred Stock.
"Preferred Stock Issuance" means any issuance of Preferred Stock of the
Parent in connection with the Nextel Contribution, the Motorola Contribution or
the Investors Contribution.
"Pro Forma Balance Sheet" is defined in Section 5.1.12.
"Quarterly Payment Date" means the last day of each of January, April,
July and October, or, if any such day is not a Business Day, the next succeeding
Business Day, commencing with April 30, 1999.
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"Rate Protection Agreement" means, collectively, any interest rate
swap, cap, collar or similar agreement entered into by the Borrower pursuant to
the terms of this Agreement under which the counterparty to such agreement is
(or at the time such Rate Protection Agreement was entered into, was) a Lender
or an Affiliate of a Lender.
"Realco" means Nextel WIP Lease Corp., a Delaware corporation and a
wholly-owned Subsidiary of the Borrower, that (i) has no obligations or
liabilities other than as permitted by the Realco Agreement and (ii) has pledged
all of its outstanding Capital Stock to the Administrative Agent for the benefit
of the Lenders in accordance with the terms of the Borrower Security and Pledge
Agreement.
"Realco Agreement" means the agreement executed and delivered by
Authorized Officers of each of the Borrower and Realco on the Closing Date,
substantially in the form of Exhibit M-1 hereto, as amended, supplemented,
amended and restated or otherwise modified from time to time.
"Register" is defined in clause (b) of Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Related Fund" means, with respect to any Lender which is a fund that
invests in loans, any other fund that invests in loans and is controlled by the
same investment advisor as such Lender or by an Affiliate of such investment
advisor.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in Section 4.11.
"Replacement Notice" is defined in Section 4.11.
"Required Balance" means an amount equal to the lesser of (a)
$275,000,000 (as such amount may be increased through additional Term Loan
Commitments and/or Revolving Loan Commitments pursuant to Section 2.1.3) and (b)
the aggregate outstanding principal amount of all Loans (other than Term-C
Loans) and Letter of Credit Outstandings.
"Required Lenders" means, at any time, (i) prior to the date of the
making of the Term-C Loans hereunder, Lenders having at least 51% of the sum of
the Revolving Loan Commitments, the Term-C Loan Commitments and the outstanding
principal amount of the Term-B Loans hereunder; and (ii) on and after the date
of the making of the Term-C Loans hereunder, Lenders holding at least 51% of the
Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
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"Restated Certification of Incorporation" means the restated
Certificate of Incorporation of the Parent, as filed with the Secretary of State
of Delaware on January 28, 1999.
"Restatement Effective Date" means the date when all of the conditions
set forth in Section 5.1 shall have been satisfied.
"Restatement Effective Date Certificate" means a certificate of an
Authorized Officer of the Borrower substantially in the form of Exhibit D
hereto, delivered pursuant to Section 5.1.5.
"Restricted Payments" is defined in Section 7.2.6.
"Restricted Stock Purchase Agreement" means the Restricted Stock
Purchase Agreement, dated as of November 20, 1998, as amended by Amendment No. 1
thereto, dated January 29, 1999, between the Parent and the purchasers named
therein, as amended, supplemented, amended and restated and otherwise modified
from time to time in accordance with Section 7.2.10.
"Revolving Loan" is defined in Section 2.1.2.
"Revolving Loan Commitment" is defined in Section 2.1.2.
"Revolving Loan Commitment Amount" means, on any date, $100,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of (i)
the eighth anniversary of the Closing Date, (ii) the date on which the Revolving
Loan Commitment Amount is terminated in full or reduced to zero pursuant to
Section 2.2, and (iii) the date on which any Commitment Termination Event
occurs.
"Revolving Note" means a promissory note of the Borrower payable to any
Lender, substantially in the form of Exhibit A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Revolving Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Roaming Agreement" means the Roaming Agreement, dated as of January
29, 1999, by and between the Borrower and NWIP, as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
Section 7.2.10.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw Hill,
Inc.
"Security Agreement" means, as the context may require, the Borrower
Security and Pledge Agreement or the Subsidiary Security and Pledge Agreement.
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"Security Documents" means, collectively, the Parent Guaranty and
Pledge Agreement, each Security Agreement, each Copyright Security Agreement,
each Patent Security Agreement, each Trademark Security Agreement, each
Mortgage, the Cash Collateral Agreement, the Assignment Agreement (including
each Consent to Assignment executed and delivered by the parties to the Nextel
Operating Agreements) and each other security agreement or other instrument or
document executed and delivered pursuant to Sections 7.1.7 and 7.1.8 to secure
the Obligations, or any portion thereof, of any Obligor.
"Senior Debt" means all Indebtedness of the Parent and its Subsidiaries
on a consolidated basis, other than any Indebtedness in respect of the Senior
Notes.
"Senior Discount Notes" means the 14% senior unsecured discount notes
due 2009 of the Parent, issued pursuant to the Senior Notes Indenture, as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with Section 7.2.10.
"Senior Discount Notes Issuance" means the issuance of the Senior
Discount Notes pursuant to the Senior Notes Indenture on the Closing Date in
exchange for gross cash proceeds of $406,400,000.
"Senior Notes" means the Senior Discount Notes and any additional
pay-in-kind notes subsequently issued from time to time under the Senior Notes
Indenture.
"Senior Notes Documents" means the Senior Notes Indenture and each of
the other documents and agreements relating to the issuance by the Parent of the
Senior Notes, in each case as in effect on the date hereof and as the same may
be amended, supplemented, amended and restated or otherwise modified from time
to time in accordance with Section 7.2.10.
"Senior Notes Indenture" means the Indenture entered into by and
between the Parent and The Bank of New York, as trustee thereunder, as in effect
on the date hereof and as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with Section
7.2.10.
"Series A Preferred Stock" means the shares of Series A Convertible
Preferred Stock, par value $0.001 per share, of the Parent having those rights
and preferences set forth in the Restated Certificate of Incorporation for
Series A Preferred Stock issued to the investors identified in Schedule A to the
Subscription and Contribution Agreement on the Closing Date and Schedule A to
the Expansion Subscription and Contribution Agreement on the Restatement
Effective Date
"Series B Preferred Stock" means the shares of Series B Preferred
Stock, par value $0.001 per share, of the Parent having those rights and
preferences set forth in the Restated Certificate of Incorporation for Series B
Preferred Stock issued to NWIP on the Closing Date.
"Series C Preferred Stock" means the shares of Series C Convertible
Preferred Stock, par value $0.001 per share, of the Parent having those rights
and preferences set forth in the Restated
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Certificate of Incorporation for Series C Preferred Stock issued to NWIP on the
Closing Date and on the Restatement Effective Date.
"Series D Preferred Stock" means the shares of Series D Convertible
Preferred Stock, par value $0.001 per share, of the Parent having those rights
and preferences set forth in the Restated Certificate of Incorporation for
Series D Preferred Stock issued to NWIP on the Closing Date.
"Shareholders' Agreement" means the Shareholders' Agreement, dated as
of January 29, 1999, among the Parent, NWIP, DLJ Merchant Banking Partners II,
L.P., Eagle River Investments, LLC, Motorola, and certain other investors listed
on the signature pages thereof, as amended, supplemented, amended and restated
and otherwise modified from time to time in accordance with Section 7.2.10.
"SMR" is defined in the second recital.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature, and
(d) such Person is not engaged in business or a transaction, and such person is
not about to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount that, in
light of all the facts and circumstances existing at such time, can reasonably
be expected to become an actual or matured liability.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means (i) in the case of any Revolving Loan, the
eighth anniversary of the Closing Date, (ii) in the case of any Term-B Loan, the
ninth anniversary of the Closing Date, and (iii) in the case of any Term-C Loan,
July 29, 2008 or, in the case of any such day that is not a Business Day, the
first Business Day following such day.
"Subscriber Purchase and Distribution Agreement" means the Subscriber
Purchase and Distribution Agreement, dated as of January 29, 1999, between
Motorola and the Borrower, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with Section 7.2.10.
"Subscriber Units" means, as at any date, the aggregate number of
digital subscriber units of the Borrower and its Subsidiaries in service to
paying customers, determined as at such date in
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a manner consistent with the methodology used in reporting the number of such
units on the reports filed by the Borrower with the Securities and Exchange
Commission (or, prior to the time that the Borrower files such reports, the
methodology used by Nextel in such reports), multiplied by a fraction, the
numerator of which is the aggregate amount of accounts receivable of the
Borrower and its Subsidiaries arising from such subscribers net of the aggregate
amount of such accounts receivable that are more than 90 days past due, and the
denominator of which is such aggregate amount of accounts receivable.
"Subscription and Contribution Agreement" means the Subscription and
Contribution Agreement, dated as of January 29, 1999, among the Parent and the
other investors parties thereto, as amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with Section 7.2.10.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other business entity of which more than 50% of the outstanding
Capital Stock (or other ownership interest) having ordinary voting power to
elect a majority of the board of directors, managers or other voting members of
the governing body of such entity (irrespective of whether at the time Capital
Stock (or other ownership interests) of any other class or classes of such
entity shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned by such Person, by such Person and
one or more other Subsidiaries of such Person, or by one or more other
Subsidiaries of such Person.
"Subsidiary Guarantor" means, on the Closing Date, each U.S. Subsidiary
of the Borrower, and thereafter, each U.S. Subsidiary of the Borrower that is
required, pursuant to clause (a) of Section 7.1.7, to execute and deliver a
supplement to the Subsidiary Guaranty.
"Subsidiary Guaranty" means the Guaranty executed and delivered by an
Authorized Officer of each Subsidiary Guarantor on the Closing Date,
substantially in the form of Exhibit H hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Subsidiary Security and Pledge Agreement" means the Security and
Pledge Agreement executed and delivered by an Authorized Officer of certain U.S.
Subsidiaries of the Borrower on the Closing Date, substantially in the form of
Exhibit F-2 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Switch Sharing Agreement" means the Switch Sharing Agreement, dated as
of January 29, 1999, by and between the Borrower and NWIP, as amended,
supplemented, amended and restated and otherwise modified from time to time in
accordance with Section 7.2.10.
"Syndication Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Syndication
Agent by the predecessor Syndication Agent and the Borrower.
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"Taxes" is defined in Section 4.6.
"Term Loan" means a Term-B Loan or a Term-C Loan.
"Term Loan Commitment" means a Term-C Loan Commitment or a commitment
to make term loans pursuant to Section 2.1.3.
"Term Note" means a Term-B Note or a Term-C Note.
"Term-B Loans" is defined in clause (a) of the third recital.
"Term-B Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-2 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-B Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Term-C Loan" is defined in clause (b) of Section 2.1.1.
"Term-C Loan Commitment" is defined in clause (b) of Section 2.1.1.
"Term-C Loan Commitment Amount" means $150,000,000.
"Term-C Loan Commitment Letter" means the commitment letter, dated
August 3, 1999, among the Borrower, DLJ, BOM and Barclays Bank PLC, including
all annexes and exhibits thereto.
"Term-C Loan Commitment Termination Date" means the earliest of (i)
September 9, 1999 (if the Term-C Loans have not been made on or prior to such
date), (ii) the Restatement Effective Date (immediately after the making of the
Term-C Loans on such date), and (iii) the date on which any Commitment
Termination Event occurs.
"Term-C Loan Fee Letter" means the confidential fee letter, dated
August 3, 1999, among the Borrower, DLJ, BOM and Barclays Bank PLC.
"Term-C Note" means a promissory note of the Borrower payable to the
order of any Lender, in the form of Exhibit A-3 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Lender resulting from
outstanding Term-C Loans, and also means all other promissory notes accepted
from time to time in substitution therefor or renewal thereof.
"Total Capital" means, with respect to the Parent and its Subsidiaries,
at any date, (a) the sum, without duplication, of (i) Debt outstanding on such
date plus (ii) Contributed Equity (less the portion of Contributed Equity
resulting from the proceeds of the Senior Discount Notes
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Issuance contributed to the Borrower in connection with the Original Borrower
Equity Contribution) on such date plus (iii) Committed Equity of each Person
having an irrevocable binding commitment to purchase Preferred Stock of the
Parent (but only to the extent there is no default in respect of such Person's
commitment, which default has occurred and is continuing for a period of more
than 30 days) on such date less (b) the difference, which shall not be less than
zero, of (x) the agreed value of all Licenses contributed by the Parent or any
of its Subsidiaries in connection with Investments in Permitted Joint Ventures
and (y) any return of capital in cash or any Licenses (at a value reasonably
determined by the Agents) from such Permitted Joint Venture.
"Total Debt" means, at any time, all Debt of the Parent and its
Subsidiaries as determined on a consolidated basis.
"Total Exposure Amount" means, on any date of determination, the then
outstanding principal amount of all Term Loans and the then effective Revolving
Loan Commitment Amount or, in the event that the Revolving Loan Commitment is
terminated, the outstanding principal amount of all Revolving Loans and Letter
of Credit Outstandings.
"Trademark License Agreement" means the Trademark License Agreement,
dated as of January 29, 1999, between the Borrower and NWIP, as amended,
supplemented, amended and restated and otherwise modified from time to time in
accordance with Section 7.2.10.
"Trademark Security Agreement" means any Trademark Security Agreement
executed and delivered by an Obligor in substantially the form of Exhibit B to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Tranche" means, as the context may require, the Loans constituting
Term-B Loans, Term-C Loans or Revolving Loans.
"Transaction" means, collectively, the Original Nextel Contribution,
the Original Motorola Contribution, the Original Investors Contribution, the
Senior Discount Notes Issuance and the Original Borrower Equity Contribution and
all transactions related thereto which occurred contemporaneously with the
making of the initial Credit Extensions under the Credit Agreement on the
Closing Date.
"Transaction Documents" means each of Nextel Operating Agreements, the
Subscription and Contribution Agreement, the Expansion Subscription and
Contribution Agreement, the Restricted Stock Purchase Agreement, the
Shareholders' Agreement, the Restated Certificate of Incorporation and all other
material agreements, documents, instruments, certificates, filings, consents,
approvals, board of directors resolutions and opinions furnished to or in
connection with the Nextel Contribution, the Motorola Contribution, the
Investors Contribution, the Senior Discount Note Issuance and the Borrower
Equity Contribution and the transactions contemplated thereby and hereby, each
as amended, supplemented, amended and restated or otherwise
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modified from time to time as permitted in accordance with the terms hereof or
any other Loan Document.
"Transition Services Agreement" means the Transition Services
Agreement, dated as of January 29, 1999, between the Parent, the Borrower and
NWIP, as amended, supplemented amended and restated and otherwise modified from
time to time in accordance with Section 7.2.10.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. Subsidiary" means any Subsidiary of the Borrower that is
incorporated or organized in or under the laws of the United States or any state
thereof.
"Waiver" means any agreement in favor of the Administrative Agent for
the benefit of the Lenders and each Issuer in form and substance reasonably
satisfactory to the Administrative Agent.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA and to which the Borrower has any liability.
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Stock (including all rights and
options to purchase such Capital Stock) of which, other than directors'
qualifying shares, are owned, beneficially and of record, by such Person and/or
one or more wholly-owned Subsidiaries of such Person.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Issuance Request, Continuation/Conversion Notice,
Loan Document, notice and other communication delivered from time to time in
connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
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SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made in accordance with
generally accepted accounting principles ("GAAP") as in effect as of December
31, 1997, but all financial statements required to be delivered hereunder or
thereunder shall be prepared in accordance with GAAP as in effect from time to
time.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES,
NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement (including Sections 2.1.5, 2.1.6 and Article V),
(a) each Lender severally agrees to the continuation of the
Term-B Loans and to make Loans pursuant to the Commitments as described
in this Section 2.1; and
(b) the Issuer agrees that it will issue Letters of Credit
pursuant to Section 2.1.4, and each other Lender that has a Revolving
Loan Commitment severally agrees that it will purchase participation
interests in such Letters of Credit pursuant to Section 2.6.1.
SECTION 2.1.1. Term-B Loans; Term-C Loan Commitments.
(a) Each of the parties hereto acknowledges and agrees that
the Term-B Loans shall continue as Term Loans for all purposes under
this Agreement and the other Loan Documents. No amounts paid or prepaid
with respect to Term-B Loans may be reborrowed.
(b) In addition, subject to compliance by the Borrower with
the terms of Sections 2.1.5, 5.1 and 5.2, on (but solely on) the
Restatement Effective Date (which shall be a Business Day), each Lender
that has a Percentage in excess of zero of the Term-C Loan Commitment
will make loans (relative to such Lender, its "Term-C Loans") to the
Borrower equal to such Lender's Percentage of the aggregate amount of
the Borrowing or Borrowings of Term-C Loans requested by the Borrower
to be made on the Restatement Effective Date (with the commitment of
each such Lender described in this clause (b) herein referred to as its
"Term-C Loan Commitment"). No amounts repaid or prepaid with respect to
Term-C Loans may be reborrowed.
SECTION 2.1.2. Revolving Loan Commitment. Subject to compliance by
the Borrower with the terms of Sections 2.1.5, 5.1 and 5.2, from time to time on
any Business Day occurring concurrently with (or after) the Closing Date but
prior to the Revolving Loan Commitment
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Termination Date, each Lender that has a Percentage of the Revolving Loan
Commitment in excess of zero will make loans (relative to such Lender, its
"Revolving Loans") to the Borrower equal to such Lender's Percentage of the
aggregate amount of the Borrowing or Borrowings of Revolving Loans requested by
the Borrower to be made on such day. The Borrower may from time to time borrow,
prepay and reborrow Revolving Loans. The Commitment of each Lender described in
this Section 2.1.2 is herein referred to as its "Revolving Loan Commitment".
SECTION 2.1.3. Additional Commitments. At any time that no Default has
occurred and is continuing, the Borrower may notify the Agents that the Borrower
is requesting that, on the terms and subject to the conditions contained in this
Agreement, the Lenders and/or other financial institutions not then a party to
this Agreement that are satisfactory to the Agents and the Issuer provide up to
an aggregate amount of $50,000,000 in additional Term Loan Commitments and/or
Revolving Loan Commitments. Upon receipt of such notice, and with the consent of
the Required Lenders, the Syndication Agent shall use its best commercially
reasonable efforts to arrange for the Lenders or other financial institutions to
provide such additional Term Loan Commitments and/or Revolving Loan Commitments;
provided that the Syndication Agent will first offer (a) each of the Lenders
that then has a Percentage of the Term Loan Commitment a pro rata portion of any
such additional Term Loan Commitment and (b) each of the Lenders that then has a
Percentage of the Revolving Loan Commitment a pro rata portion of any such
additional Revolving Loan Commitment. Alternatively, any Lender may commit to
provide the full amount of the requested additional Term Loan Commitment and/or
Revolving Loan Commitment and then offer portions of such additional Term Loan
Commitment and/or Revolving Loan Commitment to the other Lenders or other
financial institutions, subject to the proviso to the immediately preceding
sentence. Nothing contained in this Section 2.1.3 or otherwise in this Agreement
is intended to commit any Lender or any Agent to provide any portion of any such
additional Term Loan Commitments and/or Revolving Loan Commitments. If and to
the extent that any Lenders and/or other financial institutions agree, in their
sole discretion, to provide any such additional Term Loan Commitments and/or
Revolving Loan Commitments, (i) the Term Loan Commitment Amount shall be
increased by the amount of the additional Term Loan Commitment agreed to be so
provided, (ii) the Revolving Loan Commitment Amount shall be increased by the
amount of the additional Revolving Loan Commitments agreed to be so provided,
(iii) the Percentages of the respective Lenders in respect of the Term Loan
Commitment and/or the Revolving Loan Commitment shall be proportionally
adjusted, (iv) at such time and in such manner as the Borrower and the
Syndication Agent shall agree (it being understood that the Borrower and the
Agents will use their best commercially reasonable efforts to avoid the
prepayment or assignment of any LIBO Rate Loan on a day other than the last day
of the Interest Period applicable thereto), the Lenders shall assign and assume
outstanding Term Loans and/or Revolving Loans and participations in outstanding
Letters of Credit, as the case may be, so as to cause the amounts of such Term
Loans, Revolving Loans and participations in Letters of Credit held by each
Lender to conform to the respective Percentages of the Term Loan Commitment
and/or the Revolving Loan Commitment of the Lenders and (v) the Borrower shall
execute and deliver any additional Notes or other amendments or modifications to
this Agreement or any other Loan Document as the Agents may reasonably request.
In no event shall any Commitment Amount or the Percentage of any Lender be
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increased without the written consent of such Lender, and no term or condition
(including as to pricing, covenants and events of default) applicable to such
additional Indebtedness shall be more favorable in any material respect to the
Lenders providing such additional Indebtedness than the terms and conditions
hereunder. The Syndication Agent agrees to negotiate with the Borrower
commercially reasonable fees and expenses for the syndication of any such
additional Indebtedness, and in the event the Syndication Agent fails to do so,
the Syndication Agent may be replaced, solely in respect of such additional
Indebtedness, by an instrument in writing delivered to the Syndication Agent and
signed by the Borrower.
SECTION 2.1.4. Letter of Credit Commitment. Subject to compliance by
the Borrower with the terms of Sections 2.1.6, 5.1 and 5.2, from time to time on
any Business Day occurring concurrently with (or after) the Closing Date but
prior to the Revolving Loan Commitment Termination Date, the Issuer will (i)
issue one or more standby or commercial letters of credit (each referred to as a
"Letter of Credit") for the account of the Borrower in the Stated Amount
requested by the Borrower on such day, or (ii) extend the Stated Expiry Date of
an existing standby or commercial Letter of Credit previously issued hereunder
to a date not later than the earlier of (x) one Business Day prior to the eighth
anniversary of the Closing Date and (y) one year from the date of such
extension, subject to the proviso in the penultimate sentence of Section 2.6.
SECTION 2.1.5. Lenders Not Permitted or Required to Make Loans. No
Lender shall be permitted or required to, and the Borrower shall not request any
Lender to, make
(a) any Term-C Loan if, after giving effect thereto, the
aggregate original principal amount of all Term-C Loans of such Lender
would exceed such Lender's Percentage of the Term-C Loan Commitment
Amount; or
(b) any Revolving Loan if, after giving effect thereto, the
aggregate outstanding principal amount of all Revolving Loans of such
Lender, together with such Lender's Percentage of the aggregate amount
of all Letter of Credit Outstandings, would exceed such Lender's
Percentage of the Revolving Loan Commitment Amount.
SECTION 2.1.6. Issuer Not Required to Issue Letters of Credit. No
Issuer shall be required to issue any Letter of Credit if, after giving effect
thereto, (a) the aggregate amount of all Letter of Credit Outstandings would
exceed the Letter of Credit Commitment Amount or (b) the sum of the aggregate
amount of all Letter of Credit Outstandings plus the aggregate principal amount
of all Revolving Loans then outstanding would exceed the Revolving Loan
Commitment Amount.
SECTION 2.2. Reduction of Commitment Amounts. The Commitment Amounts
are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the date of the initial Credit Extension hereunder,
voluntarily reduce the
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Revolving Loan Commitment Amount; provided, however, that all such reductions
shall require at least one Business Day's prior notice to the Administrative
Agent and be permanent, and any partial reduction of the Revolving Loan
Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral
multiple of $500,000. Any such reduction of the Revolving Loan Commitment Amount
which reduces the Revolving Loan Commitment Amount below the Letter of Credit
Commitment Amount shall result in an automatic and corresponding reduction of
the Letter of Credit Commitment Amount, to an aggregate amount not in excess of
the Revolving Loan Commitment Amount, as so reduced, without any further action
on the part of the Issuer.
SECTION 2.2.2. Mandatory.
(a) Commencing on the fifth anniversary of the Closing Date
and on each successive Quarterly Payment Date thereafter, the Revolving
Loan Commitment Amount shall, without any further action, automatically
and permanently reduce in the amounts set forth below opposite each
such date:
<TABLE>
<CAPTION>
Scheduled Reduction of
----------------------
Date Revolving Loan Commitment
---- -------------------------
<S> <C>
1/31/04 $ 5,000,000
4/30/04 $ 5,000,000
7/31/04 $ 5,000,000
1/31/05 $ 5,000,000
4/30/05 $ 5,000,000
7/31/05 $ 5,000,000
10/31/05 $10,000,000
1/31/06 $10,000,000
4/30/06 $15,000,000
7/31/06 $15,000,000
10/31/06 $10,000,000
1/31/07 $10,000,000
Eighth Anniversary of $10,000,000
the Closing Date
</TABLE>
(b) Following the prepayment in full of the Term Loans, the
Revolving Loan Commitment Amount shall, without any further action,
automatically and permanently be reduced on the date the Term Loans
would otherwise have been required to be prepaid on account of any Net
Disposition Proceeds, Excess Cash Flow, Net Equity Proceeds or Net
Casualty Proceeds, in an amount equal to the amount by which the Term
Loans would otherwise have been required to be prepaid if Term Loans
had been outstanding; provided, that, at no time shall the Revolving
Loan Commitment Amount be reduced to less than $25,000,000.
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<PAGE> 53
SECTION 2.3. Borrowing Procedure and Funding Maintenance. By delivering
a Borrowing Request to the Administrative Agent on or before 11:00 a.m.,
Chicago, Illinois time, on a Business Day, the Borrower may from time to time
irrevocably request, on not less than one Business Day's notice (in the case of
Base Rate Loans) or three Business Days' notice (in the case of LIBO Rate Loans)
nor more than five Business Days' notice (in the case of any Loans), that a
Borrowing be made in an aggregate amount of $5,000,000 or any larger integral
multiple of $500,000 or in the unused amount of the applicable Commitment. No
Borrowing Request shall be required, and the minimum aggregate amounts specified
under this Section 2.3 shall not apply, in the case of Revolving Loans deemed
made under Section 2.6.2 in respect of unreimbursed Disbursements. On the terms
and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 12:00 noon, Chicago, Illinois time, on
such Business Day each Lender shall deposit with the Administrative Agent same
day funds in an amount equal to such Lender's Percentage of the requested
Borrowing. Such deposit will be made to an account which the Administrative
Agent shall specify from time to time by notice to the Lenders. To the extent
funds are received from the Lenders, the Administrative Agent shall promptly and
in any event prior to 2:00 p.m., Chicago, Illinois time, make such funds
available to the Borrower by wire transfer to the accounts the Borrower shall
have specified in its Borrowing Request. No Lender's obligation to make any Loan
shall be affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before 11:00
a.m., Chicago, Illinois time, on a Business Day, the Borrower may from time to
time irrevocably elect, on not less than one Business Day's notice (in the case
of a conversion of LIBO Rate Loans to Base Rate Loans) or three Business Days'
notice (in the case of a continuation of LIBO Rate Loans or a conversion of Base
Rate Loans into LIBO Rate Loans) nor more than five Business Days' notice (in
the case of any Loans) that all, or any portion in a minimum amount of
$5,000,000 and an integral multiple of $500,000 of any Loans be, in the case of
Base Rate Loans, converted into LIBO Rate Loans or, in the case of LIBO Rate
Loans, be converted into Base Rate Loans or continued as LIBO Rate Loans (in the
absence of delivery of a Continuation/ Conversion Notice with respect to any
LIBO Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Loan shall, on such
last day, automatically convert to a Base Rate Loan); provided, however, that
(x) each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders, and (y) notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the
Borrower, then, so long as an Event of Default is continuing (i) no outstanding
Loans may be converted to or continued as a LIBO Rate Loan and (ii) unless
repaid, each LIBO Rate Loan shall be converted to a Base Rate Loan at the end of
the Interest Period applicable thereto.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such
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<PAGE> 54
LIBO Rate Loan; provided, however, that such LIBO Rate Loan shall nonetheless be
deemed to have been made and to be held by such Lender, and the obligation of
the Borrower to repay such LIBO Rate Loan shall nevertheless be to such Lender
for the account of such foreign branch, Affiliate or international banking
facility. In addition, the Borrower hereby consents and agrees that, for
purposes of any determination to be made for purposes of Section 4.1, 4.2, 4.3
or 4.4, it shall be conclusively assumed that each Lender elected to fund all
LIBO Rate Loans by purchasing Dollar deposits in its LIBOR Office's interbank
eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 11:00 a.m., Chicago, Illinois time, on a
Business Day, the Borrower may, from time to time irrevocably request, on not
less than three nor more than ten Business Days' notice (or such shorter or
longer notice as may be acceptable to the Issuer), in the case of an initial
issuance of a Letter of Credit, and not less than three nor more than ten
Business Days' notice (unless a shorter or longer notice period is acceptable to
the Issuer) prior to the then existing Stated Expiry Date of a Letter of Credit,
in the case of a request for the extension of the Stated Expiry Date of a Letter
of Credit, that the Issuer issue, or extend the Stated Expiry Date of, as the
case may be, an irrevocable Letter of Credit on behalf of the Borrower (whether
issued for the account of or on behalf of the Borrower or any of its
Subsidiaries) in such form as may be requested by the Borrower and approved by
the Issuer, for the purposes described in clause (c) of Section 7.1.9.
Notwithstanding anything to the contrary contained herein or in any separate
application for any Letter of Credit, the Borrower hereby acknowledges and
agrees that it shall be obligated to reimburse the Issuer upon each Disbursement
paid under a Letter of Credit, and it shall be deemed to be the obligor for
purposes of each such Letter of Credit issued hereunder (whether the account
party on such Letter of Credit is the Borrower or a Subsidiary of the Borrower).
Upon receipt of an Issuance Request, the Administrative Agent shall promptly
notify the Issuer and each Lender thereof. Each Letter of Credit shall by its
terms be stated to expire on a date (its "Stated Expiry Date") no later than the
earlier to occur of (i) the Revolving Loan Commitment Termination Date or (ii)
one year from the date of its issuance; provided, that notwithstanding the terms
of clause (ii) above, a Letter of Credit may, if required by the beneficiary
thereof, contain "evergreen" provisions pursuant to which the Stated Expiry Date
shall be automatically extended (in each case, to the date no later than the
earlier to occur of (x) the Revolving Loan Commitment Termination Date or (y)
one year from the date of such automatic extension), unless notice to the
contrary shall have been given to the beneficiary by the Issuer or the account
party more than a specified period prior to the then existing Stated Expiry
Date. The Issuer will make available to the beneficiary thereof the original of
each Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender (other than the Issuer) that has a Revolving Loan Commitment
shall be deemed to have irrevocably purchased from the Issuer, to the extent of
its Percentage in respect of Revolving Loans, and the Issuer shall be deemed to
have irrevocably granted and sold to such Lender a participation interest in
such Letter of Credit (including the Contingent Liability and any Reimbursement
Obligation and all rights with respect thereto), and such Lender shall, to the
extent of its
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<PAGE> 55
Percentage in respect of Revolving Loans, be responsible for reimbursing
promptly (and in any event within one Business Day) the Issuer for Reimbursement
Obligations which have not been reimbursed by the Borrower in accordance with
Section 2.6.3. In addition, such Lender shall, to the extent of its Percentage
in respect of Revolving Loans, be entitled to promptly receive a ratable portion
of the Letter of Credit fees payable pursuant to Section 3.3.3 with respect to
each Letter of Credit and of interest payable pursuant to Section 2.6.2 with
respect to any Reimbursement Obligation. To the extent that any Lender has
reimbursed the Issuer for a Disbursement as required by this Section, such
Lender shall be entitled to receive its ratable portion of any amounts
subsequently received (from the Borrower or otherwise) in respect of such
Disbursement.
SECTION 2.6.2. Disbursements; Conversion to Revolving Loans. The Issuer
will notify the Borrower and the Administrative Agent promptly (but in any event
on the same Business Day) of the presentment for payment of any drawing under
any Letter of Credit issued by the Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Prior to 11:00 a.m., Chicago, Illinois
time, on the Business Day following the Disbursement Date (the "Disbursement Due
Date"), the Borrower will reimburse the Administrative Agent, for the account of
the Issuer, for all amounts which the Issuer has disbursed under such Letter of
Credit, together with interest thereon at the rate per annum otherwise
applicable to Revolving Loans (made as Base Rate Loans) from and including the
Disbursement Date to but excluding the Disbursement Due Date and, thereafter
(unless such Disbursement is converted into a Base Rate Loan on the Disbursement
Due Date), at a rate per annum equal to the rate per annum then in effect with
respect to overdue Revolving Loans (made as Base Rate Loans) pursuant to Section
3.2.2 for the period from the Disbursement Due Date through but excluding the
date of such reimbursement; provided, however, that unless the Borrower has
notified the Administrative Agent no later than one Business Day prior to the
Disbursement Due Date that it will reimburse the Issuer for the applicable
Disbursement, then the amount of the Disbursement shall be deemed to be a
Borrowing of Revolving Loans constituting Base Rate Loans and following the
giving of notice thereof by the Administrative Agent to the Lenders, each Lender
with a Revolving Loan Commitment (other than the Issuer) will deliver to the
Issuer on the Disbursement Due Date immediately available funds in an amount
equal to such Lender's Percentage of such Borrowing. Each conversion of
Disbursement amounts into Revolving Loans shall constitute a representation and
warranty by the Borrower that on the date of the making of such Revolving Loans
all of the statements set forth in Section 5.2.1 are true and correct.
SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon) not converted into a
Base Rate Loan pursuant to Section 2.6.2, and, upon the Borrower failing or
electing not to reimburse the Issuer and the giving of notice thereof by the
Administrative Agent to the Lenders, each Lender's (to the extent it has a
Revolving Loan Commitment) obligation under Section 2.6.1 to reimburse the
Issuer or fund its Percentage of
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<PAGE> 56
any Disbursement converted into a Base Rate Loan, shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or such Lender, as the
case may be, may have or have had against the Issuer or any such Lender,
including any defense based upon the failure of any Disbursement to conform to
the terms of the applicable Letter of Credit (unless the Issuer has committed
gross negligence or willful misconduct in determining whether or not such
Disbursement was in substantial compliance with the terms of the Letter of
Credit) (if, in the Issuer's good faith opinion, such Disbursement is determined
to be appropriate) or any non-application or misapplication by the beneficiary
of the proceeds of such Letter of Credit; provided, however, that after paying
in full its Reimbursement Obligation hereunder, nothing herein shall adversely
affect the right of the Borrower or such Lender, as the case may be, to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or willful misconduct on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Event of Default of the type described in clauses (a)
through (d) of Section 8.1.9 with respect to any Obligor (other than any
Subsidiary that is not a Material Subsidiary) or, with notice from the
Administrative Agent acting at the direction of the Required Lenders, upon the
occurrence and during the continuation of any other Event of Default,
(a) an amount equal to that portion of all Letter of Credit
Outstandings attributable to the then aggregate amount which is undrawn
and available under all Letters of Credit issued and outstanding shall,
without demand upon or notice to the Borrower or any other Person, be
deemed to have been paid or disbursed by the Issuer under such Letters
of Credit (notwithstanding that such amount may not in fact have been
so paid or disbursed); and
(b) the Borrower shall be immediately obligated to reimburse
the Issuer for the amount deemed to have been so paid or disbursed by
the Issuer.
Any amounts so payable by the Borrower pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time as the Events of Default giving rise to the deemed
disbursements hereunder shall have been cured or waived, the Administrative
Agent shall return to the Borrower all amounts then on deposit with the
Administrative Agent pursuant to this Section, together with accrued interest at
the Federal Funds Rate, which have not been applied to the satisfaction of such
Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower and,
to the extent set forth in Section 2.6.1, each Lender with a Revolving Loan
Commitment, shall assume all risks of the acts, omissions or misuse of any
Letter of Credit by the beneficiary thereof. The Issuer (except to the extent of
its own gross negligence or willful misconduct) shall not be responsible for (i)
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
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Letter of Credit or any document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged, (ii) the form, validity, sufficiency, accuracy, genuineness or legal
effect of any instrument transferring or assigning or purporting to transfer or
assign a Letter of Credit or the rights or benefits thereunder or the proceeds
thereof in whole or in part, which may prove to be invalid or ineffective for
any reason, (iii) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit, (iv) errors,
omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telegraph, telex or otherwise, or (v) any loss or delay in the
transmission or otherwise of any document or draft required in order to make a
Disbursement under a Letter of Credit. None of the foregoing shall affect,
impair or prevent the vesting of any of the rights or powers granted to the
Issuer or any Lender with a Revolving Loan Commitment hereunder. In furtherance
and extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon the
Borrower, each Obligor and each such Lender, and shall not put the Issuer under
any resulting liability to the Borrower, any Obligor or any such Lender, as the
case may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual
practice an account or accounts evidencing the Indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender,
including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder. In the case of a Lender that
does not request, pursuant to clause (b)(ii) below, execution and
delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not
inconsistent with the notations made by the Administrative Agent in the
Register, be prima facie evidence of the matters noted; provided,
however, that the failure of any Lender to maintain such account or
accounts shall not limit or otherwise affect any Obligations of the
Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent
to serve as the Borrower's agent, solely for the purpose of this clause
(b), to maintain a register (the "Register") on which the
Administrative Agent will record each Lender's Commitment, the Loans
made by each Lender and each repayment in respect of the principal
amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment
Agreement delivered to the Administrative Agent pursuant to Section
10.11.1. Failure to make any recordation, or any error in such
recordation, shall not affect the Borrower's obligation in respect of
such Loans. The entries in the Register shall be prima facie evidence
of the matters noted, and the Borrower, the Administrative Agent and
the Lenders shall treat each Person in whose name a Loan (and as
provided in clause (ii) the Note evidencing such Loan, if any) is
registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A
Lender's Commitment and the Loans made
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pursuant thereto may be assigned or otherwise transferred in whole or
in part only by registration of such assignment or transfer in the
Register. Any assignment or transfer of a Lender's Commitment or the
Loans made pursuant thereto shall be registered in the Register only
upon delivery to the Administrative Agent of a Lender Assignment
Agreement duly executed by the Assignor thereof. No assignment or
transfer of a Lender's Commitment or the Loans made pursuant thereto
shall be effective unless such assignment or transfer shall have been
recorded in the Register by the Administrative Agent as provided in
this Section 2.7.
(ii) The Borrower agrees that, upon the request to the
Administrative Agent by any Lender, the Borrower will execute and
deliver to such Lender, as applicable, a Note evidencing the Loans made
by such Lender. The Borrower hereby irrevocably authorizes each Lender
to make (or cause to be made) appropriate notations on the grid
attached to such Lender's Notes (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest
Period applicable to the Loans evidenced thereby. Such notations shall,
to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be prima facie evidence of the
matters noted; provided, however, that the failure of any Lender to
make any such notations, or any error in any such notation, shall not
limit or otherwise affect any Obligations of the Borrower or any other
Obligor. The Loans evidenced by any such Note and interest thereon
shall at all times (including after assignment pursuant to Section
10.11.1) be represented by one or more Notes payable to the order of
the payee named therein and its registered assigns. Subject to the
provisions of Section 10.11.1, a Note and the obligation evidenced
thereby may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer of such Note and
the obligation evidenced thereby in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of an
obligation evidenced by a Note shall be registered in the Register only
upon surrender for registration of assignment or transfer of the Note
evidencing such obligation,
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay
in full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal
amount of any Loan; provided, however, that
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(i) any such prepayment of the Term-B Loans or Term-C
Loans shall be made pro rata among Term-B Loans and Term-C
Loans of the same type and, if applicable, having the same
Interest Period of all Lenders that have made such Term-B
Loans or Term-C Loans, and any such prepayment of Revolving
Loans shall be made pro rata among the Revolving Loans of the
same type and, if applicable, having the same Interest Period
of all Lenders that have made such Revolving Loans;
(ii) the Borrower shall comply with Section 4.4 in
the event that any LIBO Rate Loan is prepaid on any day other
than the last day of the Interest Period for such Loan;
(iii) all such voluntary prepayments shall require at
least one Business Day's notice in the case of Base Rate
Loans, three Business Days' notice in the case of LIBO Rate
Loans, but no more than five Business Days' notice in the case
of any Loans, in each case in writing to the Administrative
Agent;
(iv) all such voluntary partial prepayments shall be
in an aggregate amount of $5,000,000 or any larger integral
multiple of $500,000 or in the aggregate principal amount of
all Loans of the applicable Tranche and type then outstanding;
and
(v) any voluntary prepayment of Term-B Loans, or
mandatory prepayment of Term-B Loans on account of Net Debt
Proceeds pursuant to clause (c) of this Section 3.1.1, made on
or prior to the third anniversary of the Closing Date shall be
subject to the payment of a premium, as set forth below:
(A) 3.0% of the principal amount of Term-B
Loans prepaid pursuant to clause (a) or (c) of this
Section 3.1.1 on or prior to the first anniversary of
the Closing Date;
(B) 2.0% of the principal amount of Term-B
Loans prepaid pursuant to clause (a) or (c) of this
Section 3.1.1 subsequent to the first anniversary and
prior to or on the second anniversary of the Closing
Date; and
(C) 1.0% of the principal amount of Term-B
Loans prepaid pursuant to clause (a) or (c) of this
Section 3.1.1 subsequent to the second anniversary
and prior or on the third anniversary of the Closing
Date;
(b) shall, no later than five Business Days following the
delivery by the Borrower of its annual audited financial reports
required pursuant to clause (b) of Section 7.1.1 (commencing with the
financial reports delivered in respect of the 2002 Fiscal Year),
deliver to the Administrative Agent a calculation of the Excess Cash
Flow for the Fiscal
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Year last ended and, no later than five Business Days following the
delivery of such calculation, make a mandatory prepayment of the Term
Loans in an amount equal to 50% of the Excess Cash Flow (if any) for
such Fiscal Year, to be applied as set forth in Section 3.1.2;
(c) shall, not later than five Business Days following the
receipt of any Net Debt Proceeds by the Borrower or any of its
Subsidiaries, deliver to the Administrative Agent a calculation of the
amount of such Net Debt Proceeds and make a mandatory prepayment of the
Term Loans in an amount equal to 100% of such Net Debt Proceeds, to be
applied as set forth in Section 3.1.2; provided that any mandatory
prepayment on account of Net Debt Proceeds made on or prior to the
third anniversary of the Closing Date shall be subject to the payment
of a premium as set forth in clause (a)(v) of this Section 3.1.1;
(d) shall, not later than 30 days following the receipt of any
Net Disposition Proceeds by the Borrower or any of its Subsidiaries,
deliver to the Administrative Agent a calculation of the amount of such
Net Disposition Proceeds, and, to the extent the amount of such Net
Disposition Proceeds with respect to any single transaction or series
of related transactions exceeds $1,000,000, make a mandatory prepayment
of the Term Loans in an amount equal to 100% of such Net Disposition
Proceeds, to be applied as set forth in Section 3.1.2; provided that no
mandatory prepayment on account of such Net Disposition Proceeds shall
be required under this clause if the Borrower informs the Agents no
later than 30 days following the receipt of any such Net Disposition
Proceeds of its or its Subsidiary's good faith intention to apply such
Net Disposition Proceeds to make Capital Expenditures or to acquire
Capital Stock of an entity that is or becomes a Subsidiary Guarantor or
other long term assets that are used or useful in the same or similar
lines of business or businesses reasonably related thereto of the
Borrower on the Closing Date within 360 days following the receipt of
such Net Disposition Proceeds, with the amount of such Net Disposition
Proceeds unused after such 360 day period being applied to the Loans as
set forth in Section 3.1.2;
(e) shall, concurrently with the receipt of any Net Equity
Proceeds by the Borrower or any of its Subsidiaries at any time after
the fifth anniversary of the Closing Date, deliver to the
Administrative Agent a calculation of the amount of such Net Equity
Proceeds, and no later than five Business Days following the delivery
of such calculation, and, to the extent that the amount of such Net
Equity Proceeds exceeds $5,000,000, make a mandatory prepayment of the
Term Loans in an amount equal to 50% of such Net Equity Proceeds to be
applied as set forth in Section 3.1.2;
(f) shall, within 60 days following the receipt by the
Borrower or any of its Subsidiaries of any Net Casualty Proceeds in
excess of $1,000,000 (individually or in the aggregate over the course
of a Fiscal Year), make a mandatory prepayment of the Term Loans in an
amount equal to 100% of such Net Casualty Proceeds, to be applied as
set forth in Section 3.1.2; provided that no mandatory prepayment on
account of Net
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Casualty Proceeds shall be required under this clause if the Borrower
informs the Agents no later than 60 days following the occurrence of
the Casualty Event resulting in such Net Casualty Proceeds of its or
its Subsidiary's good faith intention to apply such Net Casualty
Proceeds to the rebuilding or replacement of the damaged, destroyed or
condemned assets or property or to make Capital Expenditures or to
acquire Capital Stock of an entity that is or becomes a Subsidiary
Guarantor or other long term assets that are used or useful in the same
or similar lines of business or businesses reasonably related thereto
of the Borrower on the Closing Date and in fact uses such Net Casualty
Proceeds to rebuild or replace the damaged, destroyed or condemned
assets or property within 360 days following the receipt of such Net
Casualty Proceeds, with the amount of such Net Casualty Proceeds unused
after such 360 day period being applied to the Loans pursuant to
Section 3.1.2;
(g) shall, on each date when any reduction in the Revolving
Loan Commitment Amount shall become effective, including pursuant to
Section 3.1.2, make a mandatory prepayment of Revolving Loans and (if
necessary) deposit with the Administrative Agent cash collateral for
Letter of Credit Outstandings in an aggregate amount equal to the
excess, if any, of the sum of (i) the aggregate outstanding principal
amount of all Revolving Loans and (ii) the aggregate amount of all
Letter of Credit Outstandings over the Revolving Loan Commitment Amount
as so reduced;
(h) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the outstanding principal amount, if any, of
Term-B Loans in an aggregate amount equal to the amount set forth
opposite such Stated Maturity Date or period, as applicable (as such
amounts may have otherwise been increased or reduced pursuant to this
Agreement):
<TABLE>
<CAPTION>
Scheduled
Principal
Period Repayment
------ ---------
<S> <C>
2/1/03 - 1/31/07 $ 437,500
2/1/07 - 7/31/07 $17,500,000
8/1/07 to the Ninth
Anniversary of the
Closing Date $66,500,000
</TABLE>
(i) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the outstanding principal amount, if any, of
Term-C Loans in an aggregate amount equal to
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the amount set forth opposite such Stated Maturity Date or period, as
applicable (as such amounts may have otherwise been increased or
reduced pursuant to this Agreement):
<TABLE>
<CAPTION>
Scheduled
Principal
Period Repayment
------ ---------
<S> <C>
10/1/03 - 7/31/07 $ 375,000
8/1/07 to the Stated
Maturity Date for
Term-C Loans $36,000,000
</TABLE>
(j) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans or Obligations pursuant to Section 8.2 or
Section 8.3, repay all outstanding Loans and other Obligations, unless,
pursuant to Section 8.3, only a portion of all Loans and other
Obligations are so accelerated (in which case the portion so
accelerated shall be so prepaid).
Each prepayment of any Loans made pursuant to this Section shall be
without premium or penalty, except as may be required by clause (a)(v) of this
Section 3.1.1 and/or Section 4.4. No prepayment of principal of any Revolving
Loans pursuant to clause (a) or (g) of this Section 3.1.1 shall cause a
reduction in the Revolving Loan Commitment Amount.
SECTION 3.1.2. Application.
(a) Subject to clause (b) below, each prepayment or repayment
of principal of the Loans of any Tranche shall be applied, to the
extent of such prepayment or repayment, first, to the principal amount
thereof being maintained as Base Rate Loans, and second, to the
principal amount thereof being maintained as LIBO Rate Loans; provided
that prepayments or repayments of LIBO Rate Loans not made on the last
day of the Interest Period with respect thereto, shall be prepaid or
repaid subject to the provisions of Section 4.4 (together with a
payment of all accrued interest).
(b) Each voluntary prepayment of Term Loans and each mandatory
prepayment of Term Loans made pursuant to clauses (b), (c), (d), (e)
and (f) of Section 3.1.1 shall be applied, to the extent of such
prepayment, on a pro rata basis, to a prepayment of the outstanding
principal amount of all remaining Term Loans and the remaining
scheduled quarterly amortization payments in respect thereof, until all
such Term Loans have been paid in full, and thereafter, to a prepayment
of the outstanding principal amount of all Revolving Loans and a
reduction of the Revolving Loan Commitment Amount to not less than
$25,000,000; provided, however, that if the Borrower at any time elects
in writing, in its sole discretion, to permit any Lender that has Term
Loans to decline to have such
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Loans prepaid, then any Lender having Term Loans outstanding may, by
delivering a notice to the Agents at least one Business Day prior to
the date that such prepayment is to be made, decline to have such Loans
prepaid with the amounts set forth above, in which case 50% of the
amounts that would have been applied to a prepayment of such Lender's
Term Loans shall instead be applied to a prepayment of the Revolving
Loans and a reduction of the Revolving Loan Commitment Amount to not
less than $25,000,000, with the balance being retained by the Borrower.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of the Loans shall accrue and be payable in accordance with
this Section 3.2.
SECTION 3.2.1. Rates.
(a) Each Base Rate Loan shall accrue interest on the unpaid
principal amount thereof for each day from and including the day upon
which such Loan was made or converted to a Base Rate Loan to but
excluding the date such Loan is repaid or converted to a LIBO Rate Loan
at a rate per annum equal to the sum of the Alternate Base Rate for
such day plus the Applicable Margin for such Loan on such day.
(b) Each LIBO Rate Loan shall accrue interest on the unpaid
principal amount thereof for each day during each Interest Period
applicable thereto at a rate per annum equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin for such Loan on such day.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan shall have become due and payable (whether on the applicable Stated
Maturity Date, upon acceleration or otherwise), or any other monetary Obligation
(other than overdue Reimbursement Obligations which shall bear interest as
provided in Section 2.6.2) of the Borrower shall have become due and payable,
the Borrower shall pay, but only to the extent permitted by law, interest (after
as well as before judgment) on such amounts at a rate per annum equal to (a) in
the case of any overdue principal of Loans, overdue interest thereon, overdue
commitment fees or other overdue amounts in respect of Loans or other
obligations (or the related Commitments) under a particular Tranche, the rate
that would otherwise be applicable to Base Rate Loans under such Tranche
pursuant to Section 3.2.1 plus 2% and (b) in the case of other overdue monetary
Obligations, the rate that would otherwise be applicable to Revolving Loans that
were Base Rate Loans plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
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(a) on the Stated Maturity Date therefor;
(b) in the case of a LIBO Rate Loan, on the date of any
payment or prepayment, in whole or in part, of principal outstanding on
such Loan, to the extent of the unpaid interest accrued through such
date on the principal so paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the date of the initial Borrowing hereunder;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, at intervals of three months after the first day of such
Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans, Reimbursement Obligations or other monetary
Obligations arising under this Agreement or any other Loan Document after the
date such amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender that has a Revolving Loan
Commitment, for each day during the period (including any portion thereof when
any of the Lenders' Revolving Loan Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Closing Date and continuing to but excluding the Revolving Loan Commitment
Termination Date, a commitment fee on such Lender's Percentage of the unused
portion, whether or not then available, of the Revolving Loan Commitment Amount
(net of Letter of Credit Outstandings) for such day at a rate per annum equal to
the Applicable Commitment Fee for such day. Such commitment fees shall be
payable by the Borrower in arrears on each Quarterly Payment Date, commencing
with the first such day following the Closing Date, and on the Revolving Loan
Commitment Termination Date.
SECTION 3.3.2. Administrative Agent Fee. The Borrower agrees to pay an
annual administration fee to the Administrative Agent, for its own account, in
the amount set forth in a letter dated January 29, 1999, between the Borrower
and the Administrative Agent, payable in advance on the Closing Date and
annually thereafter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender that has a Revolving Loan Commitment Amount, a Letter of Credit fee for
each day on which there shall be any Letters of
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Credit outstanding on the aggregate undrawn amount of all Letters of Credit
outstanding on such day, at a rate per annum equal to the Applicable Margin for
such day for Revolving Loans that are maintained as LIBO Rate Loans. The
Borrower further agrees to pay to the Issuer for its own account, for each day
on which there shall be any Letters of Credit outstanding, an issuance fee on
the aggregate undrawn amount of all Letters of Credit outstanding on such day at
the rate per annum agreed by the Borrower and such Issuer. All such fees shall
be payable quarterly in arrears on each Quarterly Payment Date and on the
Revolving Loan Commitment Termination Date.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the Lenders,
be conclusive and binding on the Borrower) that the introduction of or any
change in or in the interpretation of any law, in each case after the date upon
which such Lender shall have become a Lender hereunder, makes it unlawful, or
any central bank or other governmental authority asserts, after such date, that
it is unlawful, for such Lender to make, continue or maintain any Loan as, or to
convert any Loan into, a LIBO Rate Loan, the obligations of such Lender to make,
continue, maintain or convert any Loans as or to LIBO Rate Loans shall, upon
such determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist (with the date of such notice being the "Reinstatement Date"), and (i) all
LIBO Rate Loans previously made by such Lender shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law or assertion and (ii) all Loans
thereafter made by such Lender and outstanding prior to the Reinstatement Date
shall be made as Base Rate Loans, with interest thereon being payable on the
same date that interest is payable with respect to the corresponding Borrowing
of LIBO Rate Loans made by Lenders not so affected.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in its relevant market; or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the
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<PAGE> 66
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, LIBO Rate Loans (excluding any amounts, whether or not constituting
Taxes, referred to in Section 4.6) arising as a result of any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority that occurs after the date upon which such
Lender became a Lender hereunder. Such Lender shall promptly notify the
Administrative Agent and the Borrower in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the Borrower
directly to such Lender within five days of its receipt of such notice, and such
notice shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan, but excluding any loss of margin after the date of any such
conversion, repayment, prepayment or failure to borrow, continue or convert) as
a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being borrowed as LIBO Rate Loans in
accordance with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/ Conversion Notice
therefor,
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on the
Borrower.
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SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority, in each case occurring after the applicable
Lender becomes a Lender hereunder, affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitments, participation in Letters of Credit or the Loans
made by such Lender is reduced to a level below that which such Lender or such
controlling Person could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to the Borrower, the Borrower shall immediately pay directly to such
Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrower. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable.
SECTION 4.6. Taxes. (a) All payments by the Borrower of principal of,
and interest on, the Loans and all other amounts payable hereunder (including
Reimbursement Obligations), fees and expenses) shall be made free and clear of
and without deduction for any present or future income, profits, gross receipts,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) any income, profits, gross receipts, excise, stamp or franchise
taxes and other similar taxes, fees, duties, withholding or other charges
imposed on either of the Agents as a result of a present or former connection
between the applicable lending office (or office through which it performs any
of its actions as Agent) of such Agent, and any income, profits, gross receipts,
excise, stamp or franchise taxes and other similar taxes, fees, duties,
withholding or other charges imposed on any Lender as a result of a present or
former connection between the applicable lending office of a Lender, in each
case and the jurisdiction of the governmental authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from such Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or taken any
action to enforce, this Agreement and any Note) and (ii) any income, profits,
gross receipts, excise, stamp or franchise taxes and other similar taxes, fees,
duties, withholding or other charges to the extent that they are in effect and
would apply as of the date that any Person becomes a Lender or Assignee Lender,
or as of the date that any Lender changes its applicable lending office, if such
taxes become applicable as a result of such change (other than a change in an
applicable lending office made pursuant to Section 4.10 below) (such
non-excluded items being called "Taxes"). In the event that any withholding or
deduction from any payment to be made by the Borrower hereunder is required in
respect of any Taxes pursuant to any applicable law, rule or regulation, then
the Borrower will pay directly to the relevant taxing authority the full amount
required to be so withheld or deducted, promptly forward to the Administrative
Agent an official receipt or other documentation reasonably satisfactory to the
Administrative Agent evidencing such
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<PAGE> 68
payment to such authority, and pay to the Administrative Agent for the account
of the Lenders such additional amount or amounts as is necessary to ensure that
the net amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been required;
provided, however, that the Borrower shall not be required to increase any such
amounts payable to any Lender that is not organized under the laws of the United
States or a state thereof if such Lender fails to comply with the requirements
of clause (b) of this Section 4.6.
Moreover, if any Taxes are directly asserted against either of the
Agents or any Lender with respect to any payment received by such Agents or such
Lender hereunder, such Agents or such Lender may pay such Taxes and the Borrower
will promptly pay to such Person such additional amount (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such Person (including any Taxes on such additional amount) shall
equal the amount of such Taxes paid by such Person; provided, however, that the
Borrower shall not be obligated to make payment to the Lenders or the Agents (as
the case may be) pursuant to this sentence in respect of interest attributable
to any Taxes, if written demand therefor has not been made by such Lenders or
the Agents within 60 days from the date on which such Lenders or the Agents knew
of the imposition of Taxes by the relevant taxing authority or for any
additional imposition which may arise from the failure of the Lenders or the
Agents to apply payments in accordance with the tax law after the Borrower has
made the payments required hereunder. After the Lenders or the Agents (as the
case may be) learn of the imposition of Taxes, such Lenders and the Agents will
act in good faith to notify the Borrower of its obligations hereunder as soon as
reasonably possible.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure.
(b) Each Non-U.S. Lender shall, (i) (A) on or prior to the date of the
execution and delivery of this Agreement, in the case of each Lender listed on
the signature pages hereof, or, (B) in the case of an Assignee Lender, on or
prior to the date it becomes a Lender, execute and deliver to the Borrower and
the Administrative Agent, two or more (as the Borrower or the Agents may
reasonably request) United States Internal Revenue Service Forms 4224 or Forms
1001 or, solely if such Lender is claiming complete exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", United States Internal Revenue Service Forms
W-8 and a certificate signed by a duly authorized officer of such Lender
representing that such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, and such other forms, documents and/or certification
(or successor forms, documents and/or certification), appropriately completed,
as may be reasonably requested by the Borrower establishing that payments to
such Lender are exempt in their entirety from withholding or deduction of Taxes;
and (ii) deliver to the Borrower and the Administrative Agent two further copies
of any such form or documents on or before the date that any such form
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or document expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent such form or document previously delivered
by it to the Borrower.
(c) If the Borrower determines in good faith that a reasonable basis
exists for contesting the imposition of a Tax with respect to a Lender or either
of the Agents, the relevant Lender or Agent, as the case may be, shall fully
cooperate with the Borrower in challenging such Tax at the Borrower's expense if
requested by the Borrower.
(d) If a Lender or an Agent shall receive a refund (including any
offset or credits from a taxing authority (as a result of any error in the
imposition of Taxes by such taxing authority) of any Taxes paid by the Borrower
pursuant to subsection 4.6(a) above), such Lender or the Agent (as the case may
be) shall promptly pay the Borrower the amount so received, with interest from
the taxing authority with respect to such refund.
(e) Each Lender and each Agent agrees, to the extent reasonable and
without material cost to it, to cooperate with the Borrower to minimize any
amounts payable by the Borrower under this Section 4.6.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by or on behalf of the Borrower pursuant to this
Agreement, the Notes or any other Loan Document shall be made by the Borrower to
the Administrative Agent for the pro rata account of the Lenders, Agents or Lead
Arranger, as applicable, entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made, without setoff,
deduction or counterclaim, not later than 11:00 a.m., Chicago, Illinois time, on
the date due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrower.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender, Agent or Lead
Arranger, as the case may be, its share, if any, of such payments received by
the Administrative Agent for the account of such Lender, Agent or Lead Arranger,
as the case may be. All interest and fees shall be computed on the basis of the
actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days (or, in the case of interest on a Base Rate Loan, 365
days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (i) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan or Reimbursement Obligations (other
than pursuant to the terms of Sections 4.3, 4.4 and 4.5) in excess of its pro
rata share of payments then or therewith obtained by all Lenders entitled
thereto, such Lender shall purchase from the other Lenders such participation in
the
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Credit Extensions made by them as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of (i) the amount of such selling
Lender's required repayment to the purchasing Lender in respect of such
recovery, to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Lender receives a secured claim in lieu of a setoff to which this
Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SECTION 4.9. Setoff. Each Lender shall, upon the occurrence of any
Event of Default described in clauses (a) through (d) of Section 8.1.9 with
respect to any Obligor (other than Subsidiaries that are not Material
Subsidiaries) or, with the consent of the Required Lenders, upon the occurrence
of any other Event of Default, to the fullest extent permitted by law, have the
right to appropriate and apply to the payment of the Obligations then due to it,
and (as security for such Obligations) the Borrower hereby grants to each Lender
a continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with or
otherwise held by such Lender; provided, however, that any such appropriation
and application shall be subject to the provisions of Section 4.8. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
SECTION 4.10. Mitigation. Each Lender agrees that if it makes any
demand for payment under Section 4.3, 4.4, 4.5, or 4.6, or if any adoption or
change of the type described in Section 4.1 shall occur with respect to it, it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions and so long as such efforts would not be disadvantageous
to it, as determined in its sole discretion) to designate a different lending
office if the making of such a designation would reduce or obviate the need for
the Borrower to make payments under Section 4.3, 4.4, 4.5, or 4.6, or would
eliminate or reduce the effect of any adoption or change described in Section
4.1. Any demand for payment by a Lender pursuant to Sections 4.3, 4.5 or 4.6
shall be effective only if notice thereof shall have been given within
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90 days after delivery of the annual audit report for such Lender for the Fiscal
Year in which the event giving rise to such demand shall have occurred.
SECTION 4.11. Replacement of Lenders. Each Lender hereby severally
agrees as set forth in this Section. If any Lender (a "Subject Lender") makes
demand upon the Borrower for (or if the Borrower is otherwise required to pay)
amounts pursuant to Section 4.3, 4.5 or 4.6, or gives notice pursuant to Section
4.1 requiring a conversion of such Subject Lender's LIBO Rate Loans to Base Rate
Loans or suspending such Lender's obligation to make Loans as, or to convert
Loans into, LIBO Rate Loans, the Borrower may, within 90 days of receipt by the
Borrower of such demand or notice (or the occurrence of such other event causing
the Borrower to be required to pay such compensation), as the case may be, give
notice (a "Replacement Notice") in writing to the Agents and such Subject Lender
of its intention to replace such Subject Lender with a financial institution (a
"Replacement Lender") designated in such Replacement Notice. If the Agents
shall, in the exercise of their reasonable discretion and within 30 days of
their receipt of such Replacement Notice, notify the Borrower and such Subject
Lender in writing that the designated financial institution is satisfactory to
the Agents (such consent not being required where the Replacement Lender is
already a Lender), then such Subject Lender shall, subject to the payment of any
amounts that would be due pursuant to Section 4.4 if the Borrower were then
making a prepayment in an equal amount, assign, in accordance with Section
10.11.1, all of its Commitments, Loans, Notes and other rights and obligations
under this Agreement and all other Loan Documents (including, without
limitation, Reimbursement Obligations) to such designated financial institution;
provided, however, that (i) such assignment shall be without recourse,
representation or warranty and shall be on terms and conditions reasonably
satisfactory to such Subject Lender and such designated financial institution
and (ii) the purchase price paid by such designated financial institution shall
be in the amount of such Subject Lender's Loans and its Percentage of
outstanding Reimbursement Obligations, together with all accrued and unpaid
interest and fees in respect thereof, plus all other amounts (including the
amounts demanded and unreimbursed under Sections 4.3, 4.5 and 4.6), owing to
such Subject Lender hereunder. Upon the effective date of an assignment
described above, the Borrower shall issue a replacement Note or Notes, as the
case may be, to such designated financial institution or Replacement Lender, as
applicable, and such institution shall become a "Lender" for all purposes under
this Agreement and the other Loan Documents.
ARTICLE V
CONDITIONS TO RESTATEMENT EFFECTIVENESS AND CREDIT EXTENSIONS
SECTION 5.1. Effectiveness. This Agreement, and the restatement of the
Credit Agreement by this Agreement, shall become effective upon the satisfaction
of each of the conditions precedent set forth in this Section 5.1.
SECTION 5.1.1. Execution of Counterparts. The Agents shall have
received counterparts of this Agreement, duly executed and delivered on behalf
of each of the Borrower,
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the Required Lenders and each Lender that has a Percentage of greater than zero
in respect of the Term-C Loan Commitment.
SECTION 5.1.2. Resolutions, etc. The Agents shall have received from
each Obligor (a) a copy of a good standing certificate, dated a date reasonably
close to the Restatement Effective Date, for each such Person and (b) a
certificate, dated the Restatement Effective Date, of its Secretary or Assistant
Secretary as to (i) resolutions of such Person's Board of Directors then in full
force and effect authorizing the execution, delivery and performance of each
Loan Document to be executed by such Person and the transactions contemplated
thereby, (ii) the incumbency and signatures of those of such Person's officers
authorized to act with respect to each Loan Document executed by such Person,
and (iii) the full force and validity of each Organic Document of such Person
and copies thereof, upon which certificates each Agent and each Lender may
conclusively rely until it shall have received a further certificate of the
Secretary or Assistant Secretary of such Obligor canceling or amending such
prior certificate.
SECTION 5.1.3. Delivery of Term-C Loan Notes. The Agents shall have
received, for the account of each Lender so requesting Term-C Loan Notes, such
Lender's Term-C Loan Notes duly executed and delivered by an Authorized Officer
of the Borrower.
SECTION 5.1.4. Transaction Documents. The Agents shall have received
(with copies for each Lender that shall have expressly requested copies thereof)
fully executed copies of the Transaction Documents delivered in connection with
the Option Capitalization Transaction and all certificates, opinions and other
documents delivered thereunder, certified to be true and complete copies thereof
by an Authorized Officer of the Borrower.
SECTION 5.1.5. Restatement Effective Date Certificate. Each of the
Agents shall have received, with counterparts for each Lender, the Restatement
Effective Date Certificate, substantially in the form of Exhibit D hereto, dated
the Restatement Effective Date and duly executed and delivered by the chief
executive, financial or accounting (or equivalent) Authorized Officer of the
Borrower, in which certificate the Borrower shall agree and acknowledge that the
statements made therein shall be deemed to be true and correct representations
and warranties of the Borrower made as of such date under this Agreement, and,
at the time such certificate is delivered, such statements shall in fact be true
and correct.
SECTION 5.1.6. Affirmation and Consent. The Agents shall have
received an affirmation and consent in the form set forth as Exhibit O hereto
executed and delivered by an Authorized Officer of the Parent and, in the event
the Borrower has any U.S. Subsidiaries, of each such U.S. Subsidiary.
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SECTION 5.1.7. Supplemental Security Arrangements. The Agents shall
have received
(a) executed copies of Uniform Commercial Code financing
statements (Form UCC-1), naming the Borrower and NPCR as a debtor and
the Administrative Agent as the secured party, or other similar
instruments or documents, to be filed under the Uniform Commercial Code
of all jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interests of
the Administrative Agent pursuant to the Assignment Agreement and the
Subsidiary Security and Pledge Agreement;
(b) the applicable Perfection Certificate; and
(c) evidence reasonably satisfactory to the Agents that the
Borrower has engaged the Filing Agent to deliver to the Agents, within
30 days of the Restatement Effective Date, certified copies of Uniform
Commercial Code Requests for Information or Copies (Form UCC-11), or a
similar search report certified by a party acceptable to the Agents,
dated a date reasonably near to the Restatement Effective Date, listing
all effective financing statements which name the Borrower or any U.S.
Subsidiary (under its present name and any previous names) as the
debtor and which are filed in the jurisdictions in which filings were
made pursuant to the Credit Agreement and clause (a) above, together
with copies of such financing statements (none of which (other than
those listing financing statements filed in connection with the Credit
Agreement) shall cover any collateral described in any Security
Agreement).
SECTION 5.1.8. Assignment Agreement and Consents to Assignment. The
Agents shall have received a fully executed copy of the Assignment Agreement,
together with consents to assignment executed and delivered by the parties to
the Nextel Operating Agreements.
SECTION 5.1.9. Option FCC Licenses. The Administrative Agent shall have
received from the Borrower a photocopy, certified to be true and complete, of
the Option FCC Licenses presently owned by the Nextel License Subsidiary for the
markets listed on Schedule V and such Option FCC Licenses shall be owned by the
Nextel License Subsidiary free and clear of all Liens (other than Liens created
by any Loan Document or imposed by the Communications Act or as described in
Item 6.15 ("Schedule of Exceptions") of the Disclosure Schedule.)
SECTION 5.1.10. Consents. The Agents shall have received evidence
satisfactory to each of them that the Borrower has made appropriate filings with
the FCC in order to obtain all consents and approvals required to be obtained
from the FCC in connection with the Option License Transfer. Other than consents
and approvals required to be obtained from the FCC in connection with the Option
License Transfer, all consents and approvals required to be obtained from any
governmental authority or other Person in connection with the Option
Capitalization Transaction or the other transactions contemplated hereby,
including evidence of compliance with the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, shall have been obtained, and all
applicable waiting periods and appeal periods shall have expired, without the
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imposition of any material conditions and there shall be no governmental or
judicial action, actual or threatened, that could reasonably be expected to
restrain, prevent or impose material conditions on the Option Capitalization
Transaction or the other transactions contemplated hereby. To the extent
contemplated by the terms of this Agreement and the Expansion Subscription and
Contribution Agreement, the Option Capitalization Transaction shall have been,
or substantially simultaneously with the making of the Term-C Loans on the
Restatement Effective Date shall be, consummated in accordance with the
Transaction Documents and applicable law, without any amendment to or waiver of
any material terms or conditions of the Transaction Documents not approved by
the Required Lenders.
SECTION 5.1.11. Capitalization and Structure. To the extent not
expressly contemplated in the Expansion Subscription and Contribution Agreement
or the Restated Certificate of Incorporation, the Agents shall be satisfied with
(a) the corporate and capital structure of the Borrower and its Subsidiaries and
(b) the contributions to the Borrower's equity. The Agents shall be satisfied
with the corporate and capital structure of the Nextel License Subsidiary.
SECTION 5.1.12. Financial Information, etc. On the Restatement
Effective Date, the Agents shall have received, with counterparts for each
Lender, a pro forma consolidated balance sheet of the Borrower and its
Subsidiaries, as of June 30, 1999 (the "Pro Forma Balance Sheet"), certified by
the chief financial or accounting Authorized Officer of the Borrower, giving
effect to all pro forma adjustments as if the Option Capitalization Transaction
had been consummated on such date, and reflecting the proposed legal and capital
structure of the Borrower, which legal and capital structure shall be
satisfactory in all respects to the Arranger and the Syndication Agent.
SECTION 5.1.13. Business Plan. The Agents shall have received a
certificate dated the Restatement Effective Date executed by an Authorized
Officer of the Borrower certifying that attached thereto is a nine-year business
plan of the Borrower satisfactory to the Lenders with quarterly projections for
the period ending on December 31, 2001.
SECTION 5.1.14. Additional Nextel Contribution, Additional Motorola
Contribution, Additional Investors Contribution and Additional Borrower Equity
Contribution. The Agents shall have received evidence satisfactory to each of
them that (i) NWIP made the Additional Nextel Contribution, (ii) Motorola made
the Additional Motorola Contribution, (iii) the amount of cash consideration
received by the Parent for the sale of its Preferred Stock to NWIP and the
Additional Investors pursuant to the Expansion Subscription and Contribution
Agreement, plus the amount of additional cash consideration payable by NWIP and
the Additional Investors pursuant to irrevocable binding commitments with the
Parent set forth in the Expansion Subscription and Contribution Agreement, shall
be at least $46,400,000 and (iv) the Borrower received the Additional Borrower
Equity Contribution.
SECTION 5.1.15. Litigation. There shall exist no pending or
threatened material litigation, proceedings or investigations which (x) contests
the consummation of the Option
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Capitalization Transaction or (y) could reasonably be expected to have a
material adverse effect on the financial condition, operations, assets,
businesses, properties or prospects of the Parent, the Borrower, or any of their
respective Subsidiaries or the ability of NWIP to perform its obligations under
the Nextel Operating Agreements.
SECTION 5.1.16. Material Adverse Change. There shall have occurred no
material adverse change in the financial condition, operations, assets,
business, properties or prospects of the Borrower and its Subsidiaries, taken as
a whole, or the Parent and its Subsidiaries, taken as a whole, since December
31, 1998.
SECTION 5.1.17. Reliance Letters. The Agents shall, unless otherwise
agreed, have received reliance letters, dated the Restatement Effective Date and
addressed to each Lender and each Agent, in respect of each of the legal
opinions (other than "disclosure" and other similar opinions) delivered in
connection with the Option Capitalization Transaction.
SECTION 5.1.18. Opinions of Counsel. The Agents shall have received
opinions, dated the Restatement Effective Date and addressed to the Agents and
all Lenders from
(a) Friedman Kaplan & Seiler LLP, New York counsel to each of
the Obligors, in substantially the form of Exhibit N-1 hereto;
(b) Willkie Farr & Gallagher, special FCC counsel to the
Obligors, in substantially the form of Exhibit N-2 hereto; and
(c) Long, Aldridge & Norman, special Georgia counsel to the
Obligors, in substantially the form of Exhibit N-3 hereto.
SECTION 5.1.19. Closing Fees, Expenses, etc. The Agents and the
Arranger shall have received, each for its own respective account, or, in the
case of the Administrative Agent, for the account of each Lender, as the case
may be, all fees, costs and expenses due and payable pursuant to the Term-C Loan
Fee Letter, Sections 3.3 and 10.3, if then invoiced.
SECTION 5.1.20. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries or any other Obligors shall be reasonably satisfactory in form and
substance to the Agents and their counsel; the Agents and their counsel shall
have received all information, approvals, opinions, documents or instruments as
the Agents or their counsel may reasonably request.
SECTION 5.1.21. UCC Filing Service. All Uniform Commercial Code (Form
UCC-1) financing statements or other similar financing statements required
pursuant to the Loan Documents (collectively, the "Filing Statements") shall
have been delivered to CT Corporation System or another similar filing service
company reasonably acceptable to the Administrative Agent (the "Filing Agent").
The Filing Agent shall have acknowledged in writing reasonably satisfactory to
the Administrative Agent and its counsel (i) the Filing Agent's receipt of all
such
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Filing Statements, (ii) that such Filing Statements have either been submitted
for filing in the appropriate filing offices therefor or will be submitted for
filing in such appropriate offices within ten days of the Restatement Effective
Date and (iii) that the Filing Agent will notify the Administrative Agent and
its counsel of the result of such submissions within 30 days of the Restatement
Effective Date.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and,
if applicable, the Issuer, to make any Credit Extension (including its initial
Credit Extension) shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.2.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, be true and
correct in all material respects with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct in all
material respects as of such earlier date);
(b) the sum of the (A) aggregate outstanding principal amount
of all Revolving Loans and (B) the aggregate amount of all Letter of
Credit Outstandings does not exceed the then existing Revolving Loan
Commitment Amount; and
(c) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request. The Agents shall have received
a Borrowing Request if Loans are being requested, or an Issuance Request if a
Letter of Credit is being requested or extended. Each of the delivery of a
Borrowing Request or Issuance Request and the acceptance by the Borrower of
proceeds of any Credit Extension shall constitute a representation and warranty
by the Borrower that on the date of such Credit Extension (both immediately
before and after giving effect thereto and the application of the proceeds
thereof) the statements made in Section 5.2.1 are true and correct.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Agents to enter into
this Agreement and to make Loans and issue Letters of Credit hereunder, the
Borrower represents and warrants unto the Agents and each Lender as set forth in
this Article VI.
SECTION 6.1. Organization, etc. Each of the Borrower and its
Subsidiaries is a corporation validly organized and existing and in good
standing under the laws of the
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jurisdiction of its organization, is duly qualified to do business and is in
good standing as a foreign corporation in each jurisdiction where the nature of
its business requires such qualification, except where the failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect,
and has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Obligations under this
Agreement, the Notes and each other Loan Document to which it is a party and to
own and hold under lease its property (including the Licenses), to operate
Network in the areas set forth on Schedule III and Schedule V and to conduct its
business substantially as currently conducted by it, except where the failure to
hold such governmental licenses, permits and approvals could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Notes and each
other Loan Document executed or to be executed by it, and the execution,
delivery and performance by each other Material Obligor of each Loan Document
executed or to be executed by it and each such other Material Obligor's
participation in the consummation of the Transaction and the Option
Capitalization Transaction are within the Borrower's and each such other
Material Obligor's corporate powers, have been duly authorized by all necessary
corporate action, and do not
(a) contravene the Borrower's or any such Material Obligor's
Organic Documents;
(b) contravene any material contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting the Borrower or any such Material Obligor; or
(c) result in, or require the creation or imposition of, any
Lien (other than Liens permitted under the Loan Documents) on any of
the Borrower's or any other Material Obligor's properties.
SECTION 6.3. Government Approval, Regulation, etc. Other than consents
and approvals required to be obtained from the FCC in connection with the
License Transfer and the Option License Transfer, no material authorization or
approval or other action by, and no material notice to or filing with, any
governmental authority or regulatory body or other Person is required for the
due execution, delivery or performance by the Borrower or any other Material
Obligor of this Agreement, the Notes or any other Loan Document to which it is a
party, or for the Borrower's and each such other Material Obligor's
participation in the consummation of the Transaction or the Option
Capitalization Transaction, except as have been duly obtained or made and are in
full force and effect. No Material Obligor is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
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SECTION 6.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
the Borrower enforceable in accordance with their respective terms, and each
Loan Document executed pursuant hereto by each other Material Obligor will, on
the due execution and delivery thereof by such Material Obligor, be the legal,
valid and binding obligation of such Material Obligor enforceable in accordance
with its terms, in each case subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing.
SECTION 6.5. Financial Information. The Pro Forma Balance Sheet
delivered pursuant to Section 5.1.12 has been prepared in accordance with GAAP
consistently applied, and presents fairly the consolidated financial condition
of the corporations covered thereby as at the date thereof, subject in the case
of interim financial statements to the lack of footnotes and to normal year end
audit adjustments. The Borrower and its Subsidiaries have no material
liabilities (contingent or otherwise) as of the Restatement Effective Date that
are not reflected in the Pro Forma Balance Sheet.
SECTION 6.6. No Material Adverse Effect. Since December 31, 1998, there
has been no event, circumstance or condition which could reasonably be expected
to have a Material Adverse Effect.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower, overtly threatened litigation, action,
proceeding, or labor controversy affecting the Borrower or any of its
Subsidiaries, or any of their respective properties, businesses, assets or
revenues which (i) would contest the consummation of the Transaction or the
Option Capitalization Transaction or (ii) could reasonably be expected to have a
Material Adverse Effect, except as disclosed in Item 6.7 ("Litigation") of the
Disclosure Schedule. No materially adverse development has occurred in any
litigation, action, labor controversy, arbitration or governmental investigation
or other proceeding disclosed in Item 6.7 ("Litigation") of the Disclosure
Schedule.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries, except
those Subsidiaries (i) which are identified in Item 6.8 ("Existing
Subsidiaries") of the Disclosure Schedule, or (ii) which are permitted to have
been acquired in accordance with Section 7.2.5. Each License Subsidiary is a
wholly-owned Subsidiary of the Borrower, and all the Capital Stock of each
License Subsidiary is directly or indirectly owned by the Borrower free and
clear of all Liens, charges or claims (other than any Lien, charge or claim
created by the Security Documents). All Licenses which are directly or
indirectly held by the Borrower or any of its Subsidiaries are owned,
beneficially and of record by a License Subsidiary, free and clear of all Liens,
charges or claims (other than any Lien, charge or claim under the Security
Documents or imposed by the Communications Act).
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SECTION 6.9. Ownership of Properties. Each of the Borrower and its
Subsidiaries owns good and marketable title to, or valid leasehold interests in,
all of its properties and assets, real and personal, tangible and intangible, of
any nature whatsoever (including patents, trademarks, trade names, service marks
and copyrights), free and clear of all Liens, charges or claims (including
infringement claims with respect to patents, trademarks, copyrights and the
like) other than any Lien, charge or claim (i) which is permitted under Section
7.2.3 or (ii) which individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.10. Taxes. Each Obligor has filed all material tax returns
and reports required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP shall have been set
aside on its books.
SECTION 6.11. Pension and Welfare Plans. Except as disclosed in Item
6.11 ("Employee Benefit Plans") of the Disclosure Schedule, during the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement, no steps have been taken to terminate any Pension Plan, and
no contribution failure has occurred with respect to any Pension Plan sufficient
to give rise to a Lien under section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Pension Plan which might
result in the incurrence by the Borrower or any member of the Controlled Group
of any liability, fine or penalty which could reasonably be expected to have a
Material Adverse Effect. Except as disclosed in Item 6.11 ("Employee Benefit
Plans") of the Disclosure Schedule, neither the Borrower nor any member of the
Controlled Group has any contingent liability with respect to any
post-retirement medical benefits under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA or
other applicable continuation of coverage laws which could reasonably be
expected to have a Material Adverse Effect.
SECTION 6.12. Environmental Warranties. Except as set forth in Item
6.12 ("Environmental Matters") of the Disclosure Schedule or as, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:
(a) all facilities and property (including underlying
groundwater) owned or leased by the Borrower or any of its Subsidiaries
have been, and continue to be, owned or leased by the Borrower or its
Subsidiaries in compliance with all Environmental Laws;
(b) there have been no past, and there are no pending or, to
the knowledge of the Borrower, threatened claims, complaints, notices
or requests for information received by the Borrower or any of its
Subsidiaries with respect to any alleged violation of any Environmental
Law, or claims, complaints, notices or inquiries to the Borrower or any
of its Subsidiaries regarding potential liability under any
Environmental Law, in each case which have not been disclosed in
writing and in reasonable detail to the Agents;
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(c) there have been no Releases of Hazardous Materials at, on
or under any property now or previously owned or leased by the Borrower
or any of its Subsidiaries;
(d) the Borrower and its Subsidiaries have been issued and are
in compliance with all permits, certificates, approvals, licenses and
other authorizations relating to environmental matters and necessary
for their businesses;
(e) no property now or previously owned or leased by the
Borrower or any of its Subsidiaries is listed or proposed for listing
(with respect to owned property only) on (x) the National Priorities
List pursuant to CERCLA, or (y) on the CERCLIS or on any similar state
list of sites requiring investigation or clean-up;
(f) there are no underground storage tanks, active or
abandoned, including petroleum storage tanks, on or under any property
now or previously owned or leased by the Borrower or any of its
Subsidiaries;
(g) neither the Borrower nor any Subsidiary of any Borrower
has directly transported or directly arranged for the transportation of
any Hazardous Material to any location which is listed or proposed for
listing on the National Priorities List pursuant to CERCLA, on the
CERCLIS or on any similar state list or which is the subject of
federal, state or local enforcement actions or other investigations
which may lead to claims against the Borrower or such Subsidiary
thereof for any remedial work, damage to natural resources or personal
injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or friable asbestos
present at any property now or previously owned or leased by the
Borrower or any Subsidiary of the Borrower; and
(i) no conditions exist at, on or under any property now or
previously owned or leased by the Borrower or any of its Subsidiaries
which, with the passage of time, or the giving of notice or both, are
reasonably likely to give rise to liability under any Environmental
Law.
SECTION 6.13. Regulations U and X. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used for a purpose which violates,
or would be inconsistent with, F.R.S. Board Regulation U or X. Terms for which
meanings are provided in F.R.S. Board Regulation U or X or any regulations
substituted therefor, as from time to time in effect, are used in this Section
with such meanings.
SECTION 6.14. Licenses; License Transfer; Option License Transfer. The
Licenses held by the Nextel License Subsidiary as of the Closing Date are set
forth on Schedule III and such Licenses are all of the Licenses necessary to
construct, install and develop the Network, and to operate those portions of the
Network for which development has been completed, in the
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markets listed on Schedule III. The Option FCC Licenses held by the Nextel
License Subsidiary as of the Restatement Effective Date are set forth on
Schedule V and such Option FCC Licences, together with additional spectrum
licenses related to the Option Territories to be purchased with the proceeds of
the Term-C Loans, are all of the Option FCC Licenses necessary to construct,
install and develop the Network, and to operate those portions of the Network
for which development has been completed, in the markets listed on Schedule V.
Both before and after giving effect to the License Transfer, (a) the Borrower
and its Subsidiaries have the full use and benefit of all Licenses necessary to
construct, install and develop the Network, and to operate those portions of the
Network for which development has been completed, in the markets listed on
Schedule III, (b) such Licenses have been duly issued by the FCC and (c) such
Licenses are in full force and effect and the Nextel License Subsidiary and the
Borrower and its Subsidiaries are in compliance in all material respects with
all of the provisions of each such License held at any time by any of them. The
Borrower and the Nextel License Subsidiary have made all filings with the FCC
and any other governmental authority, regulatory body or other Person which may
be necessary or required in order to consummate the License Transfer within 365
days following the Closing Date. Both before and after giving effect to the
Option License Transfer, (a) the Borrower and its Subsidiaries have the full use
and benefit of all Option FCC Licenses necessary to construct, install and
develop the Network, and to operate those portions of the Network for which
development has been completed, in the markets listed on Schedule V, (b) such
Option FCC Licenses have been duly issued by the FCC and (c) such Option FCC
Licenses are in full force and effect and the Nextel License Subsidiary and the
Borrower and its Subsidiaries are in compliance in all material respects with
all of the provisions of each such Option FCC License held at any time by any of
them. The Borrower and the Nextel License Subsidiary have made all filings with
the FCC and any other governmental authority, regulatory body or other Person
which may be necessary or required in order to consummate the Option License
Transfer within 365 days following the Restatement Effective Date. The
provisions of this Section 6.14 are subject to Item 6.15 ("Schedule of
Exceptions") of the Disclosure Schedule.
SECTION 6.15. FCC Compliance. Except as set forth in Item 6.15
("Schedule of Exceptions") of the Disclosure Schedule,
(a) The Nextel License Subsidiary and the Borrower and its
Subsidiaries are in compliance with the Communications Act and all
requirements of the FCC, except where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect.
(b) Neither the Nextel License Subsidiary nor the Borrower nor
any Subsidiary of the Borrower has any knowledge of any investigation,
notice of apparent liability, violation, forfeiture or any other
proceedings (other than proceedings relating to the wireless
communications industries generally) of or before the FCC, which,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect.
(c) No event or group of events has occurred or failed to
occur which (i) results in, or after notice or lapse of time or both
would result in, revocation, suspension, adverse
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modifications, non-renewal, forfeiture with respect to, any License or
group of Licenses in any respect which could reasonably be expected to
have a Material Adverse Effect or (ii) affects or could reasonably be
expected in the future to affect any of the rights of the Nextel
License Subsidiary, the Borrower or any License Subsidiary under any
License or group of Licenses held by the Nextel License Subsidiary, the
Borrower or any License Subsidiary in any respect which could
reasonably be expected to have a Material Adverse Effect.
(d) The Nextel License Subsidiary, the Borrower and each
License Subsidiary have duly filed in a timely manner all filings,
reports, applications, documents, instruments and information required
to be filed by any of them under the Communications Act which could
reasonably be expected to have a Material Adverse Effect, and all such
filings were when made (and where required have been supplemented in
order to continue to be) true, correct and complete in any respect
which could reasonably be expected to have a Material Adverse Effect.
(e) Neither the Nextel License Subsidiary nor the Borrower has
any reason to believe that each License held by the Nextel License
Subsidiary, the Borrower or any Subsidiary will not be renewed in the
ordinary course, except where non-renewal could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.16. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrower in
writing to the Agents, the Lead Arranger or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby or with
respect to the Transaction or the Option Capitalization Transaction is, and all
other such factual information hereafter furnished by or on behalf of the
Borrower to the Agents, the Lead Arranger any Lender will be, true and accurate
in every material respect on the date as of which such information is dated or
certified, the Lead Arrangers and such Lender, and such information is not, or
shall not be, as the case may be, incomplete by omitting to state any material
fact necessary to make such information in light of the circumstances when made
not materially misleading. All projections furnished to the Agents, the Issuer
or any Lender (whether before or after the Closing Date) have been or will be
prepared in good faith on the basis of reasonable assumptions, it being
understood that actual results may differ from projections.
SECTION 6.17. Solvency. The Transaction and the Option Capitalization
Transaction (including the incurrence of the initial Credit Extension on the
Closing Date and the making of the Term-C Loans on the Restatement Effective
Date, the execution and delivery by each Subsidiary Guarantor of the Subsidiary
Guaranty and the application of the proceeds of the Credit Extensions), will not
involve or result in any fraudulent transfer or fraudulent conveyance under the
provisions of Section 548 of the Bankruptcy Code (11 U.S.C. ss. 101 et seq., as
from time to time hereafter amended, and any successor or similar statute) or
any applicable state law respecting fraudulent transfers or fraudulent
conveyances. On the Closing Date, after giving effect to the Transaction and the
making of each Credit Extension made on the Closing Date, and
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on the Restatement Effective Date, after giving effect to the making of the
Term-C Loans on the Restatement Effective Date, and after giving effect to the
application of the proceeds of such Credit Extensions, the Borrower and each
Subsidiary Guarantor is Solvent.
SECTION 6.18. Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (i) the Borrower's
computer systems and equipment containing embedded microchips (including systems
and equipment supplied by others or with which Borrower's systems interface) and
the testing of all such systems and equipment, as so reprogrammed, was completed
by June 30, 1999, except where the failure to do so could not be reasonably
expected to have a Material Adverse Effect. The cost to the Borrower of such
reprogramming and testing and of the reasonably foreseeable consequences of year
2000 to the Borrower (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) did not and will not result in a
Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Borrower and its Subsidiaries are and,
with ordinary course upgrading and maintenance, will continue for the term of
this Agreement to be, sufficient to permit the Borrower to conduct its business
without Material Adverse Effect.
SECTION 6.19. Credit Facility. This Agreement represents the "Credit
Facility" designated by the Parent as the "Credit Facility" for purposes of the
Senior Notes Indenture.
SECTION 6.20. Interests in Real Property Sufficient for Conduct of
Business. The Borrower and its Subsidiaries own and or lease sufficient
interests in real property for the conduct of the Borrower's business as
presently conducted and as presently proposed to be conducted and no other
interests in real property are necessary for the conduct of such business other
than those the absence of which would not have a Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with the
Agents, each Lender and the Issuer that, until all Commitments have terminated,
all Letters of Credit have expired and all monetary Obligations then due have
been paid in full, the Borrower will perform, or cause to be performed, the
obligations set forth in this Section 7.1.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish, or will cause to be furnished, to each Lender and each
Agent copies of the following financial statements, reports, notices and
information:
(a) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters and 90 days after
the end of the fourth Fiscal Quarter of
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each Fiscal Year of the Parent, consolidated balance sheets of the
Parent and its Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of earnings and cash flow of the Borrower and
its Subsidiaries for such Fiscal Quarter and for the period commencing
at the end of the previous Fiscal Year and ending with the end of such
Fiscal Quarter, certified by the chief financial or chief accounting
Authorized Officer of the Parent;
(b) as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Parent, a copy of the annual audit
report for such Fiscal Year for the Parent and its Subsidiaries,
including therein consolidated balance sheets of the Parent and its
Subsidiaries as of the end of such Fiscal Year and consolidated
statements of earnings and cash flow of the Parent and its Subsidiaries
for such Fiscal Year, in each case certified (without any Impermissible
Qualification) in a manner acceptable to the Agents and the Required
Lenders by Arthur Andersen LLP or other independent public accountants
acceptable to the Agents and the Required Lenders, together with a
report from such accountants (unless the giving of such a certificate
is contrary to accounting practice) containing a computation of, and
showing compliance with, each of the financial ratios and restrictions
contained in clauses (a), (b), (c) and (f) through (k) of Section 7.2.4
and to the effect that, in making the examination necessary for the
signing of such annual report by such accountants, they have not become
aware of any Default that has occurred and is continuing, or, if they
have become aware of such Default, describing such Default and the
steps, if any, being taken to cure it;
(c) together with the delivery of the financial information
required pursuant to clause (a) and clause (b), a Compliance
Certificate, executed by the chief financial or chief accounting
Authorized Officer of the Borrower, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Agents) compliance with the financial covenants set
forth in Section 7.2.4;
(d) within 60 days after the commencement of each Fiscal Year
of the Borrower, a detailed consolidated budget for such Fiscal Year;
(e) within 30 days after the end of each Fiscal Quarter of the
Borrower, a certificate of an Authorized Officer of the Borrower
setting forth (i) the aggregate number of Subscriber Units whose
service terminated during such Fiscal Quarter, (ii) the aggregate
number of Subscriber Units added during such Fiscal Quarter, (iii) the
aggregate number of Subscriber Units at the end of such Fiscal Quarter,
(iv) revenue for such Fiscal Quarter and (v) the number of Covered POPs
during such Fiscal Quarter;
(f) as soon as possible and in any event within five Business
Days after the occurrence of each Default, a statement of an Authorized
Officer of the Borrower setting forth details of such Default and the
action which the Borrower has taken and proposes to take with respect
thereto;
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(g) as soon as possible and in any event within five Business
Days after (i) the occurrence of any adverse development with respect
to any litigation, action, proceeding, or labor controversy described
in Section 6.7 which could reasonably be expected to have a Material
Adverse Effect or (ii) the commencement of any labor controversy,
litigation, action, proceeding of the type described in Section 6.7,
notice thereof and copies of all material documentation relating
thereto;
(h) promptly after the sending or filing thereof, copies of
all reports which the Parent sends to any of its security holders
generally in their capacity as security holders, and all reports and
registration statements which the Parent or any of its Subsidiaries
files with the Securities and Exchange Commission or any national
securities exchange;
(i) promptly upon becoming aware of the institution of any
steps by the Borrower or any other Person to terminate any Pension
Plan, or the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under section
302(f) of ERISA, or the taking of any action with respect to a Pension
Plan which could result in the requirement that the Borrower furnish a
bond or other security to the PBGC or such Pension Plan, or the
occurrence of any event with respect to any Pension Plan which could
result in the incurrence by the Borrower of any material liability,
fine or penalty, or any material increase in the contingent liability
of the Borrower with respect to any post-retirement Welfare Plan
benefit, notice thereof and copies of all material documentation
relating thereto; and
(j) such other information respecting the condition or
operations, financial or otherwise, of the Parent or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
SECTION 7.1.2. Compliance with Laws, etc. The Borrower will, and will
cause each of its Subsidiaries to, (a) comply in all material respects with all
applicable laws, rules, regulations and orders, except where the failure to so
comply could not reasonably be expected to have a Material Adverse Effect, (b)
maintain and preserve its corporate existence and qualification as a foreign
corporation, except where the failure to so qualify could not reasonably be
expected to have a Material Adverse Effect and (c) pay, before the same become
delinquent, all material taxes, assessments and governmental charges imposed
upon it or upon its property except to the extent being contested in good faith
by appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition (ordinary wear and tear
excepted), and make necessary and proper repairs, renewals and replacements so
that its business carried on in connection therewith may be properly conducted
at all times unless the Borrower determines in good faith that the continued
maintenance of any of its properties is no longer economically desirable, except
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.
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SECTION 7.1.4. Insurance. The Borrower will, and will cause each of its
Material Subsidiaries to, maintain or cause to be maintained with responsible
insurance companies insurance with respect to its properties and business
against such casualties and contingencies and of such types and in such amounts
as is customary in the case of similar businesses and will, upon request of the
Agents, furnish to the Agents and each Lender at reasonable intervals a
certificate of an Authorized Officer of the Borrower setting forth the nature
and extent of all insurance maintained by the Borrower and its Material
Subsidiaries in accordance with this Section 7.1.4.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Material Subsidiaries to, keep books and records which accurately
reflect all of its business affairs and transactions and permit the Agents, the
Issuer and each Lender or any of their respective representatives, at reasonable
times and intervals, to discuss its financial matters with its officers and,
after reasonable notice to the Borrower and provision of an opportunity for the
Borrower to participate in such discussion, its independent public accountant
(and the Borrower hereby authorizes such independent public accountant to
discuss the Borrower's financial matters with each Lender or its representatives
whether or not any representative of the Borrower is present) and upon
reasonable notice, but, unless an Event of Default shall have occurred and be
continuing, not more than once in each Fiscal Year, to visit all of its offices
and to examine (and, at the expense of the Borrower, photocopy extracts from)
any of its books or other corporate records. The Borrower shall pay any fees of
such independent public accountant incurred in connection with any Agent's or
any Lender's exercise of its rights pursuant to this Section.
SECTION 7.1.6. Environmental Covenant. The Borrower will, and will
cause each of its Subsidiaries to,
(a) use and operate all of its facilities and properties in
compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect;
(b) promptly notify the Agents and provide copies upon receipt
of all written claims, complaints, notices or inquiries relating to the
environmental condition of its facilities and properties or compliance
with Environmental Laws which, singularly or in the aggregate, could
reasonably be expected to have a Material Adverse Effect; and
(c) provide such information and certifications which the
Agents may reasonably request from time to time to evidence compliance
with this Section 7.1.6.
SECTION 7.1.7. Future Subsidiaries. Upon any Person becoming, after
the Closing Date, a Subsidiary of the Borrower, or upon the Borrower or any
Subsidiary of the Borrower
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acquiring additional Capital Stock of any existing Subsidiary, the Borrower
shall promptly notify the Agents of such acquisition, and
(a) the Borrower shall promptly cause such Subsidiary to
execute and deliver to the Administrative Agent, with counterparts for
each Lender, a supplement to the Subsidiary Guaranty and a supplement
to the Subsidiary Security and Pledge Agreement (and, if such
Subsidiary owns any real property having a value in excess of
$1,000,000, a Mortgage), together with acknowledgment copies of Uniform
Commercial Code financing statements (Form UCC-1) executed and
delivered by the Subsidiary naming the Subsidiary as the debtor and the
Administrative Agent as the secured party, or other similar instruments
or documents, filed under the Uniform Commercial Code and any other
applicable recording statutes, in the case of real property, of all
jurisdictions as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the security interest of the
Administrative Agent pursuant to the Subsidiary Security and Pledge
Agreement or a Mortgage, as the case may be (other than the perfection
of security interests in motor vehicles owned as of the date such
entity becomes a Subsidiary); and
(b) the Borrower shall promptly deliver, or cause to be
delivered, to the Administrative Agent under a Security Agreement
certificates (if any) representing all of the issued and outstanding
shares of Capital Stock of such Subsidiary owned by the Borrower or any
Subsidiary of the Borrower, as the case may be, along with undated
stock powers for such certificates, executed in blank, or, if any
securities subject thereto are uncertificated securities, confirmation
and evidence satisfactory to the Agents that appropriate book entries
have been made in the relevant books or records of a securities
intermediary or the issuer of such securities, as the case may be, or
other appropriate steps shall have been taken under applicable law
resulting in the perfection of the security interest granted in favor
of the Administrative Agent pursuant to the terms of a Security
Agreement;
together, in each case, with such opinions, in form and substance and from
counsel reasonably satisfactory to the Agents, as the Agents may reasonably
request; provided, however, that notwithstanding the foregoing, no Non-U.S.
Subsidiary shall be required to execute and deliver a Mortgage, a supplement to
the Subsidiary Guaranty or a supplement to the Subsidiary Security and Pledge
Agreement, nor will the Borrower or any Subsidiary of the Borrower be required
to deliver in pledge pursuant to a Security Agreement in excess of 65% of the
total combined voting power of all classes of Capital Stock of a Non-U.S.
Subsidiary entitled to vote.
SECTION 7.1.8. Future Leased Property and Future Acquisitions of Real
Property; Future Acquisition of Other Property.
(a) Prior to entering into any new lease of real property or
renewing any existing lease of real property following the Closing
Date, the Borrower shall, and shall cause each of its U.S. Subsidiaries
to, use all commercially reasonable efforts (which shall not
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require the expenditure of cash or the making of material concessions
under the relevant lease) to deliver to the Administrative Agent a
Waiver executed by the lessor of any real property that is to be leased
by the Borrower or such U.S. Subsidiary for a term in excess of one
year in any state which by statute grants such lessor a "landlord's"
(or similar) Lien which is superior to the Administrative Agent's, to
the extent the value of any personal property of the Borrower or its
U.S. Subsidiaries to be held at such leased property exceeds (or it is
anticipated that the value of such personal property will, at any point
in time during the term of such leasehold term, exceed) $1,000,000.
(b) In the event that the Borrower or any of its U.S.
Subsidiaries shall acquire any real property having a value as
determined in good faith by the Administrative Agent in excess of
$1,000,000 in the aggregate, the Borrower or the applicable U.S.
Subsidiary shall, promptly after such acquisition, execute a Mortgage
and provide the Administrative Agent with
(i) evidence of the completion (or satisfactory
arrangements for the completion) of all recordings and filings
of such Mortgage as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable effectively to
create a valid, perfected first priority Lien, subject to
Liens permitted by Section 7.2.3, against the properties
purported to be covered thereby;
(ii) mortgagee's title insurance policies in favor of
the Agents and the Lenders in amounts and in form and
substance and issued by insurers, reasonably satisfactory to
the Agents, with respect to the property purported to be
covered by such Mortgage, insuring that title to such property
is marketable and that the interests created by the Mortgage
constitute valid first Liens thereon free and clear of all
defects and encumbrances other than as permitted under Section
7.2.3 or as approved by the Agents, and such policies shall
also include, to the extent available, a revolving credit
endorsement and such other endorsements as the Agents shall
reasonably request and shall be accompanied by evidence of the
payment in full of all premiums thereon; and
(iii) such other approvals, opinions, or documents as
the Agents may reasonably request.
(c) In accordance with the terms and provisions of this
Agreement and the other Loan Documents, the Borrower or the applicable
U.S. Subsidiary shall provide the Administrative Agent with evidence of
all recordings and filings as may be necessary or, in the reasonable
opinion of the Administrative Agent, desirable to create a valid,
perfected first priority Lien, subject to the Liens permitted by
Section 7.2.3, against all property acquired after the Closing Date
(excluding motor vehicles, leases of motor vehicles and leases of real
property) and an executed Perfection Certificate.
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SECTION 7.1.9. Use of Proceeds, etc. The Borrower shall
(a) apply the proceeds of the (i) Term-C Loans (A) to finance
capital expenditures related to the purchase of the Option FCC Licenses
from Nextel and NWIP, the build-out of the Network covered by the
Option FCC Licenses and other markets, and the purchase of additional
Option FCC Licenses related to the Option Territories, (B) to pay
reasonable fees and expenses associated with the Option Capitalization
Transaction; provided, that the aggregate amount of such transaction
fees and expenses shall not exceed $7,500,000, and (C) to fund general
corporate and working capital needs of the Borrower and its
Subsidiaries;
(b) apply the proceeds of the Revolving Loans to fund general
corporate and working capital needs of the Borrower and its
Subsidiaries; and
(c) use Letters of Credit for working capital and general
corporate purposes of the Borrower and its Subsidiaries.
SECTION 7.1.10. Hedging Obligations. Within twelve months following the
Closing Date, the Administrative Agent shall have received evidence satisfactory
to it that the Borrower and its Subsidiaries have entered into interest rate
swap, cap, collar or similar arrangements designed to protect the Borrower and
its Subsidiaries against fluctuations in interest rates with respect to at least
33-1/3% of the aggregate principal amount of the Term-B Loans for a period of at
least three years from the Closing Date with terms reasonably satisfactory to
the Agents. Within twelve months following the Restatement Effective Date, the
Administrative Agent shall have received evidence satisfactory to it that the
Borrower and its Subsidiaries have entered into interest rate swap, cap, collar
or similar arrangements designed to protect the Borrower and its Subsidiaries
against fluctuations in interest rates with respect to at least 33-1/3% of the
aggregate principal amount of the Term-C Loans for a period of at least three
years from the Restatement Effective Date with terms reasonably satisfactory to
the Agents.
SECTION 7.1.11. Undertaking. The Borrower will cause the License
Transfer to be completed within 365 days following the Closing Date. The
Borrower will cause the Option License Transfer to be completed within 365 days
following the Restatement Effective Date.
SECTION 7.1.12. Landlord Consents. Within 90 days after the Restatement
Effective Date, the Borrower shall deliver to each landlord or licensor under
each lease, sublease or license listed on Item 7.1.12 of the Disclosure Schedule
(collectively, the "Leased Properties") a Waiver in a form reasonably
satisfactory to the Agents. Thereafter, the Borrower shall use good faith
efforts (which shall not require any material expenditure of cash or the making
of material concessions under the relevant lease, sublease or license) to
negotiate with said landlords or licensors for the execution and delivery to the
Agents of a Waiver in a form reasonably satisfactory to the Agents. With respect
to any real property leased by or licensed to the Borrower or any Subsidiary of
the Borrower subsequent to the Restatement Effective Date, the Borrower shall
use good faith efforts (which shall not require any material expenditure of cash
or
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the making of material concessions under the relevant lease, sublease or
license) to obtain from the landlord or licensor under such new lease or license
an executed Waiver, in a form reasonably satisfactory to the Agents.
SECTION 7.1.13. Year 2000. The Borrower shall take all action necessary
to assure that its computer based systems are able to effectively process data
including dates on and after January 1, 2000, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect. At the
request of the Agents or any Lender, the Borrower shall provide the Agents or
such Lender, as the case may be, with assurance reasonably acceptable to the
Agents or such Lender, as the case may be, of the Borrower's Year 2000
capability.
SECTION 7.1.14. Termination Statements. Within 180 days after the
Restatement Effective Date, the Borrower shall have delivered to the
Administrative Agent executed copies of proper Uniform Commercial Code (Form
UCC-3) termination statements necessary to release all Liens and other rights of
any Person identified in a schedule to be provided by the Agents to the Borrower
as soon as possible after the Restatement Effective Date in any collateral
described in the Borrower Security and Pledge Agreement previously granted to
such Person, together with such other Uniform Commercial Code (Form UCC-3)
termination statements as the Administrative Agent may reasonably request from
the Borrower.
SECTION 7.2. Negative Covenants. The Borrower agrees with the Agents,
the Issuer and each Lender that, until all Commitments have terminated, all
Letters of Credit have expired and all monetary Obligations then due have been
paid in full, the Borrower will perform, or will cause to be performed, the
obligations set forth in this Section 7.2.
SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Subsidiaries to, engage in any business activity, except for
any business in which the Borrower and its Subsidiaries are engaged on the date
hereof and such businesses as may be incidental, similar or related thereto
(including the Borrower's Investments in Permitted Joint Ventures).
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not permit
any of its Subsidiaries to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness, other than,
without duplication, the following:
(a) Indebtedness in respect of the Credit Extensions and
other Obligations;
(b) Indebtedness in an aggregate principal amount not to
exceed $60,000,000 at any time outstanding which is incurred by the
Borrower or any of its Subsidiaries to a vendor (or its Affiliates) of
any assets permitted to be acquired pursuant to Section 7.2.7 to
finance its acquisition of such assets;
(c) Indebtedness existing as of the Restatement Effective Date
which is identified in Item 7.2.2(c) ("Ongoing Indebtedness") of the
Disclosure Schedule, and refinancings
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and replacements thereof in a principal amount not exceeding the
principal amount of the Indebtedness so refinanced or replaced and
with an average life to maturity of not less than the then average
life to maturity of the Indebtedness so refinanced or replaced;
(d) Hedging Obligations of the Borrower or any of its
Subsidiaries in respect of the Credit Extensions;
(e) intercompany Indebtedness of (x) any Subsidiary Guarantor
owing to the Borrower or any of its Subsidiaries or (y) the Borrower to
any of its Subsidiaries, which Indebtedness (i) shall be either
evidenced by one or more promissory notes, if any, in form and
substance satisfactory to the Agents which have been duly executed and
delivered to (and indorsed to the order of) the Administrative Agent in
pledge pursuant to a Security Agreement or recorded on the relevant
books or records of the Borrower or such Subsidiary Guarantor as an
account receivable in which a security interest has been granted in
favor of the Administrative Agent pursuant to the terms of a Security
Agreement, and (ii) shall not be forgiven or otherwise discharged for
any consideration other than payment (Dollar for Dollar) in cash unless
the Agents otherwise consent;
(f) Indebtedness in respect of Capitalized Lease Liabilities
to the extent permitted by clause (a) of Section 7.2.7;
(g) Indebtedness (other than Indebtedness described in clause
(f) above) of the Borrower or any of its Subsidiaries incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capitalized Lease Liabilities and any
Indebtedness assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition
thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity or decreased weighted average
life thereof; provided that such Indebtedness is incurred prior to or
within 180 days after such acquisition or the completion of such
construction or improvement and shall not exceed $2,000,000 in
aggregate principal amount at any time outstanding and, provided,
further, that the aggregate principal amount of Indebtedness permitted
to be outstanding at any time by this clause (g) shall not be credited
against or reduce the amount of Indebtedness permitted to be
outstanding at any time under clause (b) of this Section 7.2.2;
(h) other unsecured Indebtedness of the Borrower and its
Subsidiaries in an aggregate amount at any time outstanding not to
exceed $2,000,000; and
(i) unsecured Indebtedness incurred in the ordinary course of
business (including open accounts extended by suppliers on normal trade
terms in connection with purchases of goods and services, and surety
and performance bonds and similar instruments, but excluding
Indebtedness incurred through the borrowing of money or Contingent
Liabilities);
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provided, however, that no Indebtedness otherwise permitted by clause (g) or (h)
may be incurred if, immediately before or after giving effect to the incurrence
thereof, any Default shall have occurred and be continuing, and provided,
further, however, that all such Indebtedness of the type described in clause
(e)(y) that is owed to Subsidiaries which are not party to the Subsidiary
Guaranty, shall be subordinated, in writing, to the Obligations upon terms
satisfactory to the Agents.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
of its property, revenues or assets, whether now owned or hereafter acquired,
except:
(a) Liens securing payment of the Obligations or any Hedging
Obligations owed to any Lender or any Affiliate of any Lender granted
pursuant to any Loan Document;
(b) Liens granted prior to the Restatement Effective Date to
secure payment of Indebtedness of the type permitted and described in
clause (c) of Section 7.2.2;
(c) Liens granted to secure payment of Indebtedness of the
type permitted and described in clauses (b) and (g) of Section 7.2.2;
provided that (i) each such Lien attaches only those assets acquired
with the proceeds of such Indebtedness (or other assets acquired with
proceeds of other Indebtedness to such Lender) and (ii) the principal
amount of such Indebtedness does not exceed 100% of the cost of the
relevant property;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary of the Borrower; provided
that (i) such security interests secure Indebtedness permitted by
clause (g) of Section 7.2.2, (ii) such security interests and the
Indebtedness secured thereby are incurred prior to or within 180 days
after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed
100% of the cost of acquiring, constructing or improving such fixed or
capital assets, and (iv) such security interests shall not apply to any
other property or assets of the Borrower or any Subsidiary of the
Borrower (or other assets acquired with proceeds of other Indebtedness
to such Lender);
(e) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on the books of such Person;
(f) Liens of carriers, warehousemen, mechanics, materialmen,
contractors, laborers and landlords or other similar Liens (i) incurred
in the ordinary course of business for sums not overdue for a period of
more than 30 days, or (ii) being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on the books of such Person;
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(g) Liens incurred in the ordinary course of business (i) in
connection with workmen's compensation, unemployment insurance or other
forms of governmental insurance or benefits, (ii) to secure performance
of tenders, bids, statutory obligations, leases and contracts (other
than for borrowed money) entered into in the ordinary course of
business or (iii) to secure obligations on surety or appeal bonds,
performance or return-of-money bonds or other obligations of a similar
nature;
(h) judgment Liens in existence less than 30 days after the
entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible)
by insurance maintained with responsible insurance companies;
(i) Liens with respect to minor imperfections of title and
easements, rights-of-way, restrictions, reservations, permits,
servitudes and other similar encumbrances on real property and fixtures
which do not materially detract from the value or materially impair the
use by the Borrower or any such Subsidiary in the ordinary course of
its business of the property subject thereto;
(j) licenses, sublicenses, leases or subleases granted by the
Borrower or any of its Subsidiaries to any other Person in the ordinary
course of business;
(k) Liens in the nature of trustees' Liens granted pursuant to
any indenture governing any Indebtedness permitted by Section 7.2.2, in
each case in favor of the trustee under such indenture and securing
only obligations to pay compensation to such trustee, to reimburse its
expenses and to indemnify it under the terms thereof; and
(l) Liens of sellers of goods to the Borrower and any of its
Subsidiaries arising under Article 2 of the UCC or similar provisions
of applicable law in the ordinary course of business, covering only the
goods sold and securing only the unpaid purchase price for such goods
and related expenses.
Any term or provision of this Section to the contrary notwithstanding,
unless otherwise consented to by the Required Lenders the Borrower will not
permit any License Subsidiary to, and no such License Subsidiary shall, create,
incur, assume or suffer to exist any Lien upon or in any of its property
(including the Licenses or Capital Stock of such License Subsidiary) other than
as described in clause (a) above.
SECTION 7.2.4. Financial Covenants.
I. For the period from and including the Closing Date through June 30,
2002:
(a) Senior Debt to Total Capital. The ratio of Senior Debt to
Total Capital as of the end of any Fiscal Quarter occurring during the
period from and including the Closing Date through June 30, 2002 shall
not exceed .30:1.00.
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(b) Total Debt to Total Capital. The ratio of Total Debt to
Total Capital as of the end of any Fiscal Quarter occurring during the
period from and including the Closing Date through June 30, 2002 shall
not exceed .80:1.00.
II. For the period from and including the first Fiscal Quarter ending
after the Closing Date through the end of the first Fiscal Quarter of the 2002
Fiscal Year:
(c) Aggregate Service Revenue. Aggregate Service Revenue for
any Fiscal Quarter set forth below shall not be less than the amount of
Aggregate Service Revenue set forth opposite such date:
<TABLE>
<CAPTION>
Date Aggregate Service Revenue
---- -------------------------
<S> <C>
3/31/99 $1,800,000
6/30/99 $3,000,000
9/30/99 $4,500,000
12/31/99 $5,800,000
3/31/00 $7,800,000
6/30/00 $11,500,000
9/30/00 $15,000,000
12/31/00 $20,000,000
3/31/01 $25,000,000
6/30/01 $31,000,000
9/30/01 $37,000,000
12/31/01 $44,000,000
3/31/02 $52,000,000
</TABLE>
III. For the period from and including the first Fiscal Quarter ending
after the Closing Date through the end of the first Fiscal Quarter of the 2003
Fiscal Year:
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(d) Subscriber Units. The number of Subscriber Units on or
after any date set forth below shall not be less than the number of
Subscriber Units set forth opposite such date:
<TABLE>
<CAPTION>
Date Subscriber Units
---- ----------------
<S> <C>
3/31/99 12,500
6/30/99 14,700
9/30/99 23,000
12/31/99 30,000
3/31/00 45,000
6/30/00 72,000
9/30/00 95,000
12/31/00 120,000
3/31/01 143,000
6/30/01 175,000
9/30/01 215,000
12/31/01 255,000
3/31/02 300,000
6/30/02 335,000
9/30/02 385,000
12/31/02 432,000
3/31/03 475,000
</TABLE>
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<PAGE> 96
(e) Covered POPs. As of each date set forth below, the number
of Covered POPs shall not be less than the number set forth opposite
such date:
<TABLE>
<CAPTION>
Date Covered POPs
---- ------------
<S> <C>
3/31/99 3,700,000
6/30/99 3,800,000
9/30/99 3,800,000
12/31/99 4,600,000
3/31/00 9,000,000
6/30/00 10,707,000
9/30/00 13,031,000
12/31/00 14,940,000
3/31/01 15,400,000
6/30/01 16,185,000
9/30/01 18,600,000
12/31/01 and thereafter 25,000,000
</TABLE>
IV. For the period from and including the second Fiscal Quarter of the
2002 Fiscal Year through the end of the third Fiscal Quarter of the 2003 Fiscal
Year:
(f) Senior Debt to Annualized Adjusted EBITDA. The ratio of
(i) Senior Debt outstanding on the last day of any Fiscal Quarter set
forth below to (ii) Annualized Adjusted EBITDA for the period ending on
such date shall not exceed the ratio set forth opposite such date:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio of Senior Debt to
- -------------- -----------------------
Ending On Annualized Adjusted EBITDA
--------- --------------------------
<S> <C>
6/30/02 4.75:1.00
9/30/02 3.50:1.00
12/31/02 3.50:1.00
3/31/03 3.00:1.00
6/30/03 3.00:1.00
9/30/03 2.50:1.00
</TABLE>
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(g) Total Debt to Annualized Adjusted EBITDA. The ratio of (i)
Total Debt outstanding on the last day of any Fiscal Quarter set forth
below to (ii) Annualized Adjusted EBITDA for the period ending on such
date shall not exceed the ratio set forth opposite such date:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio of Total Debt to
- -------------- ----------------------
Ending On Annualized Adjusted EBITDA
--------- --------------------------
<S> <C>
6/30/02 20.50:1.00
9/30/02 15.25:1.00
12/31/02 10.50:1.00
3/31/03 10.00:1.00
6/30/03 9.00:1.00
9/30/03 8.00:1.00
</TABLE>
V. For the period from and including the fourth Fiscal Quarter of the
2003 Fiscal Year through the Stated Maturity Date:
(h) Senior Debt to Annualized EBITDA. The ratio of (i) Senior
Debt outstanding on the last day of any Fiscal Quarter set forth below
to (ii) Annualized EBITDA for the period ending on such date shall not
exceed the ratio set forth opposite such date:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio of Senior Debt to
- -------------- -----------------------
Ending On Annualized EBITDA
--------- -----------------
<S> <C>
12/31/03 5.00:1.00
3/31/04 4.50:1.00
6/30/04 3.50:1.00
9/30/04 3.00:1.00
12/31/04 and thereafter 2.50:1.00
</TABLE>
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(i) Total Debt to Annualized EBITDA. The ratio of (i) Total
Debt outstanding on the last day of any Fiscal Quarter set forth below
to (ii) Annualized EBITDA for the period ending on such date shall not
exceed the ratio set forth opposite such date:
<TABLE>
<CAPTION>
Fiscal Quarter Ratio of Total Debt to
- -------------- ----------------------
Ending On Annualized EBITDA
--------- -----------------
<S> <C>
12/31/03 20.50:1.00
3/31/04 18.50:1.00
6/30/04 16.50:1.00
9/30/04 13.00:1.00
12/31/04 10.00:1.00
3/31/05 10.00:1.00
6/30/05 8.50:1.00
9/30/05 7.00:1.00
12/31/05 6.00:1.00
3/31/06 5.75:1.00
6/30/06 5.50:1.00
9/30/06 and thereafter 5.00:1.00
</TABLE>
(j) Interest Coverage Ratio. The ratio of (i) Annualized
EBITDA on the last day of any Fiscal Quarter set forth below to (ii)
Consolidated Cash Interest Expense for the period consisting of such
Fiscal Quarter and each of the three immediately prior Fiscal Quarters
shall not be less than the ratio set forth opposite such date or
period:
<TABLE>
<CAPTION>
Date or Period Interest Coverage Ratio
-------------- -----------------------
<S> <C>
12/31/03 to 6/30/05 1.10:1.00
9/30/05 1.15:1.00
12/31/05 to 6/30/06 1.25:1.00
9/30/06 to 12/31/06 1.75:1.00
3/31/07 and thereafter 2.00:1.00
</TABLE>
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<PAGE> 99
(k) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio as of the end of the any Fiscal Quarter set forth below shall not
be less than the ratio set forth opposite such period:
<TABLE>
<CAPTION>
Period Fixed Charge Coverage Ratio
------ ---------------------------
Coverage Ratio
--------------
<S> <C>
12/31/03 to 9/30/05 1.00:1.00
12/31/05 to 3/31/06 1.10:1.00
6/30/06 and thereafter 1.25:1.00
</TABLE>
(l) Cash Account. The balance maintained in the Cash Account
at all times until the earlier to occur of (i) the effectiveness of the
License Transfer and (ii) 395 days after the Closing Date shall not be
less than the Required Balance.
SECTION 7.2.5. Investments. The Borrower will not, and will not
permit any of its Subsidiaries to, make, incur, assume or suffer to exist any
Investment in any other Person, except:
(a) Investments existing on the Restatement Effective Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure
Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Investments permitted as Capital
Expenditures pursuant to Section 7.2.7;
(e) Investments by the Borrower in any of its Subsidiaries (or
any Person which, after making an Investment, becomes a Subsidiary), or
by any such Subsidiary in any Subsidiary of the Borrower, by way of
contributions to capital;
(f) Investments in the form of loans to officers, directors
and employees of the Borrower and its Subsidiaries in an aggregate
amount at any time outstanding not to exceed $2,500,000 in cash;
(g) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of
delinquent obligations of and other disputes with customers and
suppliers arising in the ordinary course of business;
(h) Investments in Permitted Joint Ventures; or
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(i) additional Investments in an aggregate amount at any time
outstanding not to exceed $2,000,000; provided, that the amount of any
such additional Investment outstanding at any time shall be deemed to
be equal to the amount of such Investment on the date made, minus the
sum of amounts received in cash in respect of such Investment
representing return of capital, repayment of loans and return on
capital (including interest and dividends) up to the amount of such
Investment on the date made;
provided, however, that
(j) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment"
may continue to be held for no more than 180 days following the date
that such Investment no longer meets the requirements of such
definition; and
(k) no Investment otherwise permitted by clause (e) (other
than an Investment in a wholly-owned Subsidiary) or (h) shall be
permitted to be made if, immediately before or after giving effect
thereto, any Default shall have occurred and be continuing, unless such
party has irrevocably committed to making such Investment.
SECTION 7.2.6. Restricted Payments, etc. On and at all times after the
Restatement Effective Date, the Borrower will not, and will not permit any of
its Subsidiaries to, directly or indirectly, declare, pay or make any dividend,
distribution or exchange (in cash, property or obligations) or other payment on
or in respect of any Senior Notes, any shares of Preferred Stock of the Parent
or any shares of any class of Capital Stock (now or hereafter outstanding) of
the Borrower or on any warrants, options or other rights with respect to any
shares of any class of Capital Stock (now or hereafter outstanding) of the
Borrower (other than (i) dividends or distributions payable in common stock or
warrants to purchase its common stock, (ii) splits or reclassifications of its
Capital Stock into additional or other shares of a similar class of its Capital
Stock (provided that such other class of Capital Stock (x) is not (by its terms,
by the terms of any security into which it is convertible or exchangeable or
otherwise) redeemable, at the option of the holder thereof, on or prior to
February 8, 2010 or convertible or exchangeable for debt securities and (y) does
not require the payment of dividends in cash) and (iii) in the case of Preferred
Stock, dividends or distributions payable in additional Preferred Stock) or
apply, or permit any of its Subsidiaries to apply, any of its funds, property or
assets to the payment, purchase, redemption, exchange, sinking fund or other
retirement of, or agree or permit any of its Subsidiaries to pay, purchase,
redeem or exchange, any Senior Notes or any shares of Preferred Stock of the
Parent or any shares of any class of Capital Stock (now or hereafter
outstanding) of the Borrower, or warrants, options or other rights with respect
to any shares of Preferred Stock of the Parent or any shares of any class of
Capital Stock (now or hereafter outstanding) of the Borrower (the foregoing
prohibited acts are herein collectively referred to as "Restricted Payments");
provided, however, that notwithstanding the foregoing provisions,
(a) so long as (A) no Default shall have occurred and be
continuing on the date such Restricted Payment is declared or to be
made, nor would a Default result from the
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<PAGE> 101
making of such Restricted Payment, (B) after giving effect to the
making of such Restricted Payment the Parent and its Subsidiaries shall
be in pro forma compliance with the covenants set forth in Section
7.2.4 for the most recent full Fiscal Quarter immediately preceding the
date of the payment of such Restricted Payment for which relevant
financial information has been delivered pursuant to clause (a) or (b)
of Section 7.1.1, and (C) an Authorized Officer of the Borrower shall
have delivered a certificate to the Agents in form and substance
satisfactory to the Agents (including a calculation of compliance with
the covenants set forth in Section 7.2.4) certifying as to the accuracy
of clauses (A) and (B) above, the Borrower shall be permitted to pay
cash dividends to the Parent to the extent necessary to enable the
Parent to
(i) repurchase, redeem or otherwise acquire or retire
for value any common stock of the Parent, or any warrant,
option or other right to acquire common stock of the Parent,
from former employees or directors of the Parent or any
Subsidiary for consideration not to exceed (x) $500,000 in the
aggregate in any Fiscal Year (with unused amounts in any
Fiscal Year being carried forward to subsequent Fiscal Years),
and (y) in the case of any Itemized Executive, $2,000,000 per
Itemized Executive (plus the amount of any proceeds of any key
man life insurance received by the Borrower or any Subsidiary
in respect of such Itemized Executive) in any Fiscal Year up
to an aggregate amount not to exceed $5,000,000 in any Fiscal
Year; provided, that the aggregate amount of all such
repurchases made pursuant to this clause (i) shall not exceed
$17,000,000 over the term of this Agreement (excluding the
amount of any proceeds of any key man life insurance received
by the Borrower or any Subsidiary in respect of any Itemized
Executive);
(ii) pay cash interest on the Senior Notes; and
(b) the Borrower shall be permitted to make Restricted
Payments to the Parent in amounts required for the Parent to pay when
due income and franchise taxes and other fees and expenses required to
maintain its corporate existence and satisfy its reporting and
financial obligations and to pay out-of-pocket costs, operating
expenses and other amounts required to be paid by the Parent during
such Fiscal Year.
SECTION 7.2.7. Capital Expenditures, etc.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, make or commit to make Capital Expenditures in any
Fiscal Year set forth below in excess of the aggregate amount set forth
opposite such Fiscal Year:
<TABLE>
<CAPTION>
Fiscal Year Amount
----------- ------
<S> <C>
1999 $275,000,000
2000 $295,000,000
</TABLE>
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<TABLE>
<S> <C>
2001 $115,000,000
2002 $55,000,000
2003 $65,000,000
2004 $75,000,000
2005 $100,000,000
2006 and each Fiscal Year $95,000,000
thereafter
</TABLE>
provided, however, that to the extent the amount of Capital
Expenditures permitted to be made in any Fiscal Year pursuant to this
Section 7.2.7 exceeds the aggregate amount of Capital Expenditures
actually made during such Fiscal Year, up to 75% of such excess amount
may be carried forward to (but only to) the next succeeding Fiscal Year
(any such amount to be certified by the Borrower to the Administrative
Agent in the Compliance Certificate delivered for the last Fiscal
Quarter of such Fiscal Year, and any such amount carried forward to a
succeeding Fiscal Year shall be deemed to be used prior to the Borrower
and its Subsidiaries using the amount of Capital Expenditures permitted
by this Section 7.2.7 without giving effect to such carry-forward) and
provided, further, that the amount of Capital Expenditures permitted to
be made in the 1999 Fiscal Year and the 2000 Fiscal Year shall not
include the Motorola Contribution or reimbursement payments to Nextel
in an amount of (i) approximately $115,300,000 in respect of
operational networks and other infrastructure in Hawaii, New York and
other markets contributed by NWIP to the Parent and further contributed
to the Borrower on the Closing Date and (ii) approximately $8,200,000
in respect of operational networks and other infrastructure in Georgia
and other markets contributed by NWIP to the Parent and further
contributed to the Borrower on the Restatement Effective Date.
(b) The parties acknowledge and agree that the permitted
Capital Expenditure level set forth in clause (a) above shall be
exclusive of the amount of Capital Expenditures actually made with cash
equity capital contributions made, directly or indirectly, by any
Person other than the Borrower and its Subsidiaries, after the Closing
Date to the Borrower or any of its Subsidiaries and specifically
identified in a certificate delivered by an Authorized Officer of the
Borrower to the Agents prior to the time such capital contribution is
made.
SECTION 7.2.8. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Subsidiaries to, liquidate or dissolve, consolidate
with, or merge into or with, any other corporation, or purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any division
thereof) except
(a) any such Subsidiary (other than the License Subsidiary)
may liquidate or dissolve voluntarily into, and may merge with and
into, the Borrower (so long as the Borrower is the surviving
corporation of such combination or merger) or any other Subsidiary, and
the assets or stock of any Subsidiary may be purchased or otherwise
acquired by the Borrower or any other Subsidiary; provided that,
notwithstanding the
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above, a Subsidiary may only liquidate or dissolve into, or merge with
and into, another Subsidiary of the Borrower if, after giving effect to
such combination or merger, the Borrower continues to own (directly or
indirectly), and the Administrative Agent continues to have pledged to
it pursuant to a Security Agreement, a percentage of the issued and
outstanding shares of Capital Stock (on a fully diluted basis) of the
Subsidiary surviving such combination or merger that is equal to or in
excess of the percentage of the issued and outstanding shares of
Capital Stock (on a fully diluted basis) of the Subsidiary that does
not survive such combination or merger that was (immediately prior to
the combination or merger) owned by the Borrower or pledged to the
Administrative Agent; and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Subsidiaries may purchase all or substantially all of the assets of any
Person (or any division thereof) not then a Subsidiary, or acquire such
Person by merger, if permitted (without duplication) pursuant to
Section 7.2.7 to be made as a Capital Expenditure or if permitted
(without duplication) pursuant to Section 7.2.5 to be made as an
Investment.
SECTION 7.2.9. Asset Dispositions, etc. The Borrower will not, and will
not permit any of its Subsidiaries to, sell, transfer, lease, contribute or
otherwise convey, or grant options, warrants or other rights with respect to,
any of its assets, whether now owned or hereafter acquired (including accounts
receivable and Capital Stock of Subsidiaries) to any Person, unless
(a) such sale, transfer, lease, contribution or conveyance of
such assets is (i) in the ordinary course of its business (and does not
constitute a sale, transfer, lease, contribution or other conveyance of
all or a substantial part of the Borrower's and its Subsidiaries'
assets, taken as a whole), is of obsolete or worn out property or is no
longer useful in the business of the Borrower, (ii) permitted by
Section 7.2.8, or (iii) between the Borrower and one of its
Subsidiaries or between Subsidiaries of the Borrower;
(b) such sale, transfer, lease, contribution or conveyance
constitutes (i) an Investment permitted under Section 7.2.5, (ii) a
Lien permitted under Section 7.2.3, (iii) a License Exchange; provided,
however, that the aggregate value of all Licenses exchanged for
Licenses from a third party pursuant to clause (c) of the definition of
"License Exchange" shall not exceed $20,800,000, or (iv) a Georgia
Option Territories Exchange; or
(c) (i) such sale, transfer, lease, contribution or conveyance
of such assets is for fair market value and the consideration consists
solely of cash, (ii) the Net Disposition Proceeds received from such
assets, together with the Net Disposition Proceeds of all other assets
sold, transferred, leased, contributed or conveyed pursuant to this
clause (c) since the Closing Date, does not exceed (individually or in
the aggregate) $50,000,000 over the term of this Agreement and (iii) an
amount equal to the Net Disposition Proceeds generated from such sale,
transfer, lease, contribution or conveyance is applied
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to prepay the Loans pursuant to the terms of clause (d) of Section
3.1.1 and Section 3.1.2.
Any term or provision of this Section to the contrary notwithstanding,
unless otherwise consented to by the Required Lenders (including pursuant to the
NWIP Undertaking) or unless the consent of the Required Lenders is not required
pursuant to the NWIP Undertaking, the Borrower will not permit any License
Subsidiary to, and no such License Subsidiary shall, sell, transfer, lease,
contribute or otherwise convey, or grant options, warrants or other rights with
respect to, any of its assets (including the Licenses or Capital Stock of such
License Subsidiary).
SECTION 7.2.10. Modification of Certain Agreements. Without the prior
written consent of the Required Lenders, the Borrower will not, and will not
permit any of its Subsidiaries to, consent to any amendment, supplement,
amendment and restatement, waiver or other modification of any of the terms or
provisions contained in, or applicable to, the Preferred Stock (or any charter
provisions relating thereto), any Senior Discount Notes (including any agreement
or indenture related thereto or to the Senior Discount Note Issuance) or any
Transaction Document or any schedules, exhibits or agreements related thereto,
in each case which would (i) adversely affect the rights or remedies of the
Lenders or the Borrower's or any other Obligor's legal ability or legal right or
power to perform its respective material obligations hereunder or under any Loan
Document to which it is a party, (ii) decrease the amount of Committed Equity
contributed in respect of the Transaction or the Option Capitalization
Transaction or (iii) increase the Borrower's or any of its Subsidiaries'
obligations or liabilities, contingent or otherwise and such increase could
reasonably be expected to have a Material Adverse Effect.
SECTION 7.2.11. Transactions with Affiliates. The Borrower will not,
and will not permit any of its Subsidiaries to, enter into, or cause, suffer or
permit to exist any arrangement or contract with any of its other Affiliates
(other than another Obligor) unless such arrangement or contract is fair and
equitable to the Borrower or such Subsidiary and is an arrangement or contract
of the kind which would be entered into by a prudent Person in the position of
the Borrower or such Subsidiary with a Person which is not one of its
Affiliates; provided, however, that the Borrower and its Subsidiaries (a) may
enter into and perform their obligations under the Transaction Documents to
which each is a party as of the Closing Date, (b) may enter into any transaction
involving the issuance of equity securities, employment agreements or payment of
directors' fees and (c) may enter into any transaction which is approved by a
majority of the disinterested directors of the Borrower.
SECTION 7.2.12. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
any agreement prohibiting
(a) (i) the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired
(other than in the case of any assets acquired with the proceeds of any
Indebtedness permitted under clause (f) of Section 7.2.2 or subject to
Capitalized Lease Liabilities permitted under such clause (f),
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customary limitations and prohibitions contained in such Indebtedness),
or (ii) the ability of the Borrower or any other Obligor to amend or
otherwise modify this Agreement or any other Loan Document; or
(b) any Subsidiary from making any payments, directly or
indirectly, to the Borrower by way of dividends, advances, repayments
of loans or advances, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the
ability of any such Subsidiary to make any payment, directly or
indirectly, to the Borrower.
SECTION 7.2.13. Liabilities of License Subsidiary. The Borrower will
not permit any License Subsidiary to incur, assume or permit to exist any
liabilities (other than under the Subsidiary Guaranty and the Subsidiary
Security Agreement, the Communications Act and taxes and other liabilities
incurred in the ordinary course in order to maintain its existence) or to engage
in any business or activities other than holding of Licenses.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION 8.1.1. Non-Payment of Obligations. (a) The Borrower shall
default in the payment or prepayment when due of any principal of any Loan, (b)
the Borrower shall default in the payment when due of any Reimbursement
Obligation or deposit of cash collateral for purposes pursuant to Section 2.6.4,
or (c) the Borrower or any other Obligor shall default (and such default shall
continue unremedied for a period of three Business Days) in the payment when due
of any interest or fee with respect to the Loans or Commitments or, on demand
after presentation of appropriate backup documentation, of any other Obligation.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
the Borrower or any other Obligor made or deemed to be made hereunder or in any
other Loan Document executed by it or any other writing or certificate furnished
by or on behalf of the Borrower or any other Obligor to the Agents, the Issuer,
the Lead Arranger or any Lender for the purposes of or in connection with this
Agreement or any such other Loan Document (including any certificates delivered
pursuant to Article V) is or shall be incorrect when made in any material
respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance and observance of any of its
obligations under clause (f) of Section 7.1.1, Sections 7.1.9, 7.1.10, 7.1.11,
the first sentence of 7.1.12 or Section 7.2.
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SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. The
Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to the Borrower by the
Administrative Agent at the direction of the Required Lenders.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any of its Material Subsidiaries
or any other Obligor having a principal amount, individually or in the
aggregate, in excess of $10,000,000, or a default shall occur in the performance
or observance of any obligation or condition with respect to such Indebtedness
if the effect of such default is to accelerate the maturity of any such
Indebtedness or such default shall continue unremedied for any applicable period
of time sufficient to permit the holder or holders of such Indebtedness, or any
trustee or agent for such holders, to cause such Indebtedness to become due and
payable prior to its expressed maturity.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $10,000,000 (not covered by insurance from a responsible
insurance company that is not denying its liability with respect thereto) shall
be rendered against the Borrower or any of its Material Subsidiaries or any
other Obligor and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order, or
(b) there shall be any period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan:
(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrower or any such member
could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $10,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Control of the Borrower. Any Change in Control shall
occur.
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SECTION 8.1.9. Bankruptcy, Insolvency, etc. The Borrower or any of
its Material Subsidiaries or any other Obligor shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for the Borrower
or any of its Material Subsidiaries or any other Obligor or any
property of any thereof, or make a general assignment for the benefit
of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of
its Material Subsidiaries or any other Obligor or for a substantial
part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within 60 days,
provided that the Borrower, each Material Subsidiary and each other
Obligor hereby expressly authorizes the Agents, the Issuer and each
Lender to appear in any court conducting any relevant proceeding during
such 60- day period to preserve, protect and defend their rights under
the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or any
of its Material Subsidiaries or any other Obligor, and, if any such
case or proceeding is not commenced by the Borrower or such Material
Subsidiary or such other Obligor, such case or proceeding shall be
consented to or acquiesced in by the Borrower or such Material
Subsidiary or such other Obligor or shall result in the entry of an
order for relief or shall remain for 60 days undismissed; provided that
the Borrower, each Material Subsidiary and each other Obligor hereby
expressly authorizes the Agents, the Issuer and each Lender to appear
in any court conducting any such case or proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan
Documents; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 8.1.10. Impairment of Security, etc. (a) Any Loan Document, or
any Lien granted thereunder, shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or cease to be the legally
valid, binding and enforceable obligation of any Obligor party thereto; (b) the
Borrower, any other Obligor or any other party shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability; or (c) any Lien securing any Obligation shall, in whole or in
part, cease to be a perfected first priority Lien, subject only to those
exceptions expressly permitted by such Loan Document except to the extent any
event referred to above (a) relates to assets of the Borrower or any of its
Subsidiaries which are immaterial, (b) results from the failure of the
Administrative Agent to
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maintain possession of certificates representing securities pledged under any
Security Agreement or to file continuation statements under the Uniform
Commercial Code of any applicable jurisdiction or (c) is covered by a lender's
title insurance policy and the relevant insurer promptly after the occurrence
thereof shall have acknowledged in writing that the same is covered by such
title insurance policy.
SECTION 8.1.11. Licenses. The FCC shall terminate, revoke or fail to
renew one or more Licenses, which individually or in the aggregate are material,
of the Borrower or its Subsidiaries, taken as a whole.
SECTION 8.1.12. Rights to Use. The Borrower's right to use the "Nextel"
brand name or national switching infrastructure pursuant to the Trademark
License Agreement and the Switch Sharing Agreement with Nextel or to acquire
equipment incorporating the "iDEN" technology pursuant to the Infrastructure
Equipment Purchase Agreement shall terminate prior to the stated expiration
thereof, unless in either case such termination could not reasonably be expected
to have a Material Adverse Effect because the parties have entered into
replacement or successor agreements with respect thereto which are reasonably
satisfactory to the Agents, or any default or termination of any rights under
any material agreements, which occurrence or termination could reasonably be
expected to have a Material Adverse Effect, shall occur.
SECTION 8.1.13. Subscription and Contribution Agreement; Expansion
Subscription and Contribution Agreement. Any party to the Subscription and
Contribution Agreement or the Expansion Subscription and Contribution Agreement
shall fail to comply with any funding or contribution obligation under any such
agreement, which failure shall remain unremedied (either by cure by such Person
or other Person) for a period of five Business Days.
SECTION 8.1.14. License Transfer; Option License Transfer. The License
Transfer shall fail to be consummated within 365 days following the Closing
Date. The Option License Transfer shall fail to be consummated within 365 days
following the Restatement Effective Date.
SECTION 8.1.15. Nextel Operating Agreements. (i) Any Nextel Operating
Agreement shall terminate or fail to be renewed (except (x) in the case of the
Asset Transfer and Reimbursement Agreement, the Transition Services Agreement
and the Infrastructure Equipment Purchase Agreement, at such time as all
material obligations of the parties thereunder have been performed, (y) in the
case of the Interim Management Agreement, pursuant to Section 8(c) thereof or
(z) the Analog Management Agreement), (ii) a Material Breach (as defined in the
Joint Venture Agreement) described in Section 12.3 A, B or C of the Joint
Venture Agreement shall occur and be continuing which could reasonably be
expected to have a Material Adverse Effect, (iii) a Material Breach (other than
a Material Breach described in Section 12.3 A, B or C of the Joint Venture
Agreement) shall occur and continue unremedied after the expiration of all
applicable grace periods and arbitration proceedings, or (iv) NWIP shall default
in the due performance and observance of any of its obligations under the NWIP
Undertaking which default could reasonably be expected to have a Material
Adverse Effect.
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SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if not
theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand and the Borrower shall automatically and immediately be obligated to
deposit with the Administrative Agent cash collateral in an amount equal to all
Letter of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than an Event of Default described in clauses (a) through (d) of Section
8.1.9) shall occur for any reason, whether voluntary or involuntary, and be
continuing, the Administrative Agent, upon the direction of the Required
Lenders, shall by notice to the Borrower declare all or any portion of the
outstanding principal amount of the Loans and other Obligations (including
Reimbursement Obligations) to be due and payable, require the Borrower to
provide cash collateral to be deposited with the Administrative Agent in an
amount equal to the undrawn amount of all Letters of Credit outstanding and/or
declare the Commitments (if not theretofore terminated) to be terminated,
whereupon the full unpaid amount of such Loans and other Obligations which shall
be so declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and the Borrower shall deposit with the
Administrative Agent cash collateral in an amount equal to all Letters of Credit
Outstandings.
ARTICLE IX
THE ADMINISTRATIVE AGENT
SECTION 9.1. Actions. Each Lender hereby appoints DLJ as its
Syndication Agent and BOM as its Administrative Agent under and for purposes of
this Agreement, the Notes and each other Loan Document. Each Lender authorizes
the Agents to act on behalf of such Lender under this Agreement, the Notes and
each other Loan Document and, in the absence of other written instructions from
the Required Lenders received from time to time by the Agents (with respect to
which each of the Agents agrees that it will comply, except as otherwise
provided in this Section or as otherwise advised by counsel), to exercise such
powers hereunder and thereunder as are specifically delegated to or required of
the Agents by the terms hereof and thereof, together with such powers as may be
reasonably incidental thereto. The Agents may execute any of their respective
duties under this Agreement, the Notes and each other Loan Document by or
through their respective employees, agents and attorneys-in-fact. Each Lender
hereby indemnifies (which indemnity shall survive any termination of this
Agreement) the Agents, pro rata according to such Lender's percentage of the
Total Exposure Amount, from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against, either of
the Agents in any way relating to or arising out of this Agreement, the Notes
and any other Loan Document, including reasonable attorneys' fees, and as to
which any Agent is not reimbursed by
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the Borrower or any other Obligor (and without limiting the obligation of the
Borrower or any other Obligor to do so); provided, however, that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted from such Agent's
gross negligence or wilful misconduct. An Agent shall not be required to take
any action hereunder, under the Notes or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of either of the Agents shall be or become, in such
Agent's determination, inadequate, such Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
12:00 noon, Chicago, Illinois time, on the day prior to a Borrowing or
Disbursement with respect to a Letter of Credit pursuant to Section 2.6.2 that
such Lender will not make available the amount which would constitute its
Percentage of such Borrowing on the date specified therefor, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Administrative Agent, such Lender and
the Borrower severally agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to the
Borrower to the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. None of the Agents or the Lead Arranger nor
any of their respective directors, officers, employees or agents shall be liable
to any Lender for any action taken or omitted to be taken by it under this
Agreement or any other Loan Document, or in connection herewith or therewith,
except for its own willful misconduct or gross negligence, nor responsible for
any recitals or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Agreement or any other Loan
Document, nor for the creation, perfection or priority of any Liens purported to
be created by any of the Loan Documents, or the validity, genuineness,
enforceability, existence, value or sufficiency of any collateral security, nor
to make any inquiry respecting the performance by the Borrower of its
obligations hereunder or under any other Loan Document. None of the Agents or
the Lead Arranger nor any of their respective directors, officers, employees or
agents shall be responsible for or have any duty to ascertain, inquire into or
verify (i) any statement, warranty or representation made in connection with any
Loan Document or any borrowing hereunder, (ii) the performance or observance of
any of the covenants or agreements of any Obligor under any Loan Document,
including, without limitation, any agreement by an Obligor to furnish
information directly to each Lender, (iii) the satisfaction of any condition
specified in Article V, expect receipt of items required to be delivered solely
to the Administrative Agent, (iv) the existence or possible existence of any
Default or Event of Default, or (v) the financial condition
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of the Borrower or any other Obligor. Any such inquiry which may be made by an
Agent or the Issuer shall not obligate it to make any further inquiry or to take
any action. The Agents and the Issuer shall be entitled to rely upon advice of
counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Agents or the Issuer, as applicable, believe to
be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Syndication Agent may resign as such upon
one Business Day's notice to the Borrower and the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrower and all Lenders. The Administrative Agent may be removed
at any time with or without cause by written notice received by the
Administrative Agent from the Required Lenders, such removal to be effective on
the date specified in such notice. If the Administrative Agent at any time shall
resign or be removed, the Required Lenders may, with the prior consent of the
Borrower (which consent shall not be unreasonably withheld or delayed) appoint
another Lender as a successor Administrative Agent which shall thereupon become
the Administrative Agent hereunder. If no successor Administrative Agent shall
have been so appointed by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving
notice of resignation or receiving notice of removal, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation or removal hereunder as the
Administrative Agent, the provisions of (i) this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement, and (ii) Section 10.3 and Section
10.4 shall continue to inure to its benefit. Notwithstanding anything else to
the contrary in this Section 9.4, the Administrative Agent may at any time,
without the consent of the Borrower or any Lender, appoint an Affiliate which is
a commercial banking institution as a successor Administrative Agent.
SECTION 9.5. Credit Extensions by Each Agent and Issuer. Each Agent and
the Issuer shall have the same rights and powers with respect to (i) in the case
of the Agents, the Credit Extensions made by it or any of its Affiliates and
(ii) in the case of the Issuer, the Loans made by it or any of its Affiliates,
as any other Lender and may exercise the same as if it were not an Agent or the
Issuer. Each Agent, the Issuer and each of their respective Affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Subsidiary or Affiliate of the Borrower as if
such Agent or Issuer were not an Agent or Issuer hereunder.
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SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of the Agents, the Lead Arranger, the Issuer and each other
Lender, and based on such Lender's review of the financial information of the
Borrower, this Agreement, the other Loan Documents (the terms and provisions of
which being satisfactory to such Lender) and such other documents, information
and investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitments. Each Lender also acknowledges that it will,
independently of the Agents, the Lead Arranger, the Issuer and each other
Lender, and based on such other documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit decisions as
to exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 9.8. The Syndication Agent, the Documentation Agent and the
Administrative Agent. Notwithstanding anything else to the contrary contained in
this Agreement or any other Loan Document, the Syndication Agent, the
Documentation Agent and the Administrative Agent, each in such capacity, shall
have no duties or responsibilities under this Agreement or any other Loan
Document nor any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against the Syndication Agent,
the Documentation Agent or the Administrative Agent, as applicable, in such
capacity except as are explicitly set forth herein or in the other Loan
Documents.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to in writing by the Borrower and each Obligor party thereto and the
Required Lenders; provided, however, that no such amendment, modification or
waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders shall be effective unless consented
to in writing by each Lender;
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(b) modify this Section 10.1, or clause (a) of Section 10.10,
change the definitions of "Required Lenders" or "Interest Period",
increase any Commitment Amount or the Percentage of any Lender, reduce
any fees described in Section 3.3 (other than the administration fee
referred to in Section 3.3.2), release any Subsidiary Guarantor from
its obligations under the Subsidiary Guaranty, release the Parent from
its obligations under the Parent Guaranty and Pledge Agreement, or
release all or substantially all of the collateral security (except in
each case as otherwise specifically provided in this Agreement, the
Subsidiary Guaranty or a Security Agreement) or extend any Commitment
Termination Date shall be made without the written consent of each
Lender adversely affected thereby;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment of principal of or interest on or fees payable in
respect of any Loan or reduce the principal amount of or rate of
interest on or fees payable in respect of any Loan or any Reimbursement
Obligations (which shall in each case include the conversion of all or
any part of the Obligations into equity of any Obligor) or reduce the
amount of, or postpone the scheduled date of, any mandatory reduction
of any Commitment, without the written consent of the holder of the
Note evidencing such Loan or, in the case of a Reimbursement
Obligation, the Issuer owed, and those Lenders participating in, such
Reimbursement Obligation;
(d) affect adversely the interests, rights or obligations of
any Agent, the Issuer or the Lead Arranger (in its capacity as Agent,
Issuer or Lead Arranger), unless consented to in writing by such Agent,
the Issuer or the Lead Arranger, as the case may be;
(e) have the effect (either immediately or at some later time)
of enabling the Borrower to satisfy a condition precedent to the making
of a Revolving Loan or the issuance of a Letter of Credit without the
written consent of Lenders holding at least 51% of the Revolving Loan
Commitments; or
(f) amend, modify or waive the provisions of clause (a)(i) of
Section 3.1.1 or clause (b) of Section 3.1.2 without the consent of the
holders of the Notes evidencing at least 51% of the aggregate amount of
Loans outstanding under the Tranche or Tranches affected thereby.
No failure or delay on the part of any Agent, the Issuer, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by any Agent, the Issuer,
any Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval
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hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
For purposes of this Section 10.1, the Syndication Agent, in
coordination with the Administrative Agent, shall have primary responsibility,
together with the Borrower, in the negotiation, preparation, and documentation
relating to any amendment, modification or waiver of this Agreement, any other
Loan Document or any other agreement or document related hereto or thereto
contemplated pursuant to this Section.
SECTION 10.2. Notices. All notices, requests and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by facsimile and addressed, delivered or transmitted to
such party at its address or facsimile number set forth on Schedule II hereto
or, in the case of a Lender which becomes a party hereto after the date hereof,
as set forth in the Lender Assignment Agreement pursuant to which such Lender
becomes a Lender hereunder or at such other address or facsimile number as may
be designated by such party in a notice to the other parties. Any notice, (i) if
mailed and properly addressed with postage prepaid or (ii) if properly addressed
and sent by pre-paid courier service, shall be deemed given when received, or
(iii) if transmitted by facsimile, shall be deemed given when transmitted (and
telephonic confirmation of receipt thereof has been received).
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all reasonable expenses of each Agent (including the reasonable fees
and out-of-pocket expenses of counsel to the Agents and of local or foreign
counsel, if any, who may be retained by counsel to the Agents) in connection
with
(a) the syndication by the Syndication Agent and the Lead
Arranger of the Loans, the negotiation, preparation, execution and
delivery of this Agreement and of each other Loan Document, including
schedules and exhibits, and any amendments, waivers, consents,
supplements or other modifications to this Agreement or any other Loan
Document as may from time to time hereafter be required, whether or not
the transactions contemplated hereby are consummated;
(b) the filing, recording, refiling or rerecording of the
Mortgages and the Security Agreements and/or any Uniform Commercial
Code financing statements relating thereto and all amendments,
supplements and modifications to any thereof and any and all other
documents or instruments of further assurance required to be filed or
recorded or refiled or rerecorded by the terms hereof or of any
Mortgage or any Security Agreement; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Agents and the Lenders
harmless from all liability for, any stamp or other similar taxes which may be
payable in connection with the execution or delivery of this Agreement, the
Borrowings hereunder, the issuance of the Notes,
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the issuance of the Letters of Credit, or any other Loan Documents. The Borrower
also agrees to reimburse each Agent and each Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
legal expenses) incurred by such Agent or such Lender in connection with (x) the
negotiation of any restructuring or "work-out", whether or not consummated, of
any Obligations and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitment,
the Borrower indemnifies, exonerates and holds each Agent, the Lead Arranger,
the Issuer and each Lender and each of their respective partners, trustees,
officers, directors, employees and agents (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (collectively, the "Indemnified
Liabilities"), incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to make
any Credit Extension hereunder but excluding any such action in which a
court of competent jurisdiction in a final non-appealable judgment
determined that such Lenders breached their obligations hereunder in
respect of such Credit Extension);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not such Agent, the Lead Arranger, the Issuer or
such Lender is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by the Borrower or any
of its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, the Borrower or such Subsidiary;
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<PAGE> 116
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the relevant
Indemnified Party's gross negligence or wilful misconduct. Each Obligor and its
permitted successors and assigns hereby waive, release and agree not to make any
claim, or bring any cost recovery action against, any Agent, the Lead Arranger,
the Issuer or any Lender under CERCLA or any state equivalent, or any similar
law now existing or hereafter enacted, except to the extent determined by a
court of competent jurisdiction in a final proceeding to have resulted from the
gross negligence or wilful misconduct of any Indemnified Party. It is expressly
understood and agreed that to the extent that any of such Persons is strictly
liable under any Environmental Laws, such Obligor's obligation to such Person
under this indemnity shall likewise be without regard to fault on the part of
such Obligor, to the extent permitted under applicable law, with respect to the
violation or condition which results in liability of such Person. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, such
Obligor hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 4.8 and Section 9.1, shall in each case survive any termination of this
Agreement, the payment in full of all Obligations and the termination of all
Commitments. The representations and warranties made by the Borrower and each
other Obligor in this Agreement and in each other Loan Document shall survive
the execution and delivery of this Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall become effective
when counterparts of this Agreement executed on behalf of the Borrower, the
Agents, the Required Lenders and each Lender that has a Percentage of greater
than zero in respect of the Term-C Loan Commitment (or notice thereof
satisfactory to the Agents) shall have been received by the Agents.
108
<PAGE> 117
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, EXCLUDING THE
LAW OF CONFLICTS BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
This Agreement, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons in accordance with this Section
10.11.
SECTION 10.11.1. Assignments. Any Lender (an "Assignor Lender"),
(a) with the written consents of the Borrower, the Agents and
(in the case of any assignment of participations in Letters of Credit
or Revolving Loan Commitments) the Issuer ((x) which consents shall not
be unreasonably delayed or withheld, (y) which consents of the Agents
and the Issuer shall not be required in the case of assignments made
(1) to DLJ or any of its Affiliates or (2) by DLJ or any of its
Affiliates to any commercial bank, fund which is regularly engaged in
making, purchasing or investing in loans or securities or other
financial institution the long-term certificate of deposit rating or
long-term senior unsecured debt rating of which as determined by S&P or
Moody's is at least BBB or Baa2 and (z) which consent of the Borrower
shall not be required at any time when an Event of Default shall have
occurred and be continuing), may at any time assign and delegate to one
or more commercial banks, funds which are regularly engaged in making,
purchasing or investing in loans or securities or other financial
institutions, and
(b) with notice to the Borrower, the Agents and (in the case
of any assignment of participations in Letters of Credit or Revolving
Loan Commitments) the Issuer, but without the consent of the Borrower,
the Agents or the Issuer, may assign and delegate to any of its
Affiliates or to any other Lender or to a Related Fund of any Lender
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<PAGE> 118
(each such Person described in either of the foregoing clauses as being the
Person to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), all or any fraction of such Lender's total
Loans, participations in Letters of Credit and Letter of Credit Outstandings
with respect thereto and Commitments (which assignment and delegation shall be,
as among Revolving Loan Commitments, Revolving Loans and participations in
Letters of Credit, of a constant, and not a varying, percentage) in a minimum
aggregate amount equal to the lesser of (i) $1,000,000 or (ii) the then
remaining amount of such Lender's Loans and Commitments; provided, however, that
any such Assignee Lender will comply, if applicable, with the provisions
contained in Section 4.6 and the Borrower, each other Obligor and the Agents
shall be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned and delegated to an Assignee Lender
until (x) written notice of such assignment and delegation, together with
payment instructions, addresses and related information with respect to such
Assignee Lender, shall have been given to the Borrower and the Agents by such
Lender and such Assignee Lender, (y) such Assignee Lender shall have executed
and delivered to the Borrower and the Agents a Lender Assignment Agreement,
accepted by the Agents, and (z) the processing fees described below shall have
been paid.
From and after the date that the Agents accept such Lender Assignment Agreement,
(i) the Assignee Lender thereunder shall be deemed automatically to have become
a party hereto and to the extent that rights and obligations hereunder have been
assigned and delegated to such Assignee Lender in connection with such Lender
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and under the other Loan Documents, and (ii) the Assignor Lender, to
the extent that rights and obligations hereunder have been assigned and
delegated by it in connection with such Lender Assignment Agreement, shall be
released from its obligations hereunder and under the other Loan Documents.
Within ten Business Days after its receipt of notice that the Administrative
Agent has received an executed Lender Assignment Agreement, the Borrower shall
execute and deliver to the Administrative Agent (for delivery to the relevant
Assignee Lender), and to the extent requested, new Notes evidencing such
Assignee Lender's assigned Loans and Commitments and, if the Assignor Lender has
retained Loans and Commitments hereunder, replacement Notes in the principal
amount of the Loans and Commitments retained by the Assignor Lender hereunder
(such Notes to be in exchange for, but not in payment of, those Notes then held
by such Assignor Lender). Each such Note shall be dated the date of the
predecessor Notes. The Assignor Lender shall mark the predecessor Notes
"exchanged" and deliver them to the Borrower. Accrued interest on that part of
the predecessor Notes evidenced by the new Notes, and accrued fees, shall be
paid as provided in the Lender Assignment Agreement. Accrued interest on that
part of the predecessor Notes evidenced by the replacement Notes shall be paid
to the Assignor Lender. Accrued interest and accrued fees shall be paid at the
same time or times provided in the predecessor Notes and in this Agreement. Such
Assignor Lender or such Assignee Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,500, unless such assignment and delegation is by a Lender to its
Affiliate or to a Related Fund or if such assignment and delegation is by a
Lender to a Federal Reserve Bank (or, if such Lender is an investment fund, to
the trustee under the indenture to which such fund is a party in support of its
obligations to such trustee), as provided below or is otherwise consented to by
the
-110-
<PAGE> 119
Administrative Agent. Any attempted assignment and delegation not made in
accordance with this Section 10.11.1 shall be null and void. Nothing contained
in this Section 10.11.1 shall prevent or prohibit any Lender from pledging its
rights (but not its obligations to make Loans or participate in Letters of
Credit of Letter of Credit Outstandings) under this Agreement and/or its Loans
and/or its Notes hereunder (i) to a Federal Reserve Bank in support of
borrowings made by such Lender from such Federal Reserve Bank or (ii) in the
case of a Lender that is an investment fund, to the trustee under the indenture
to which such fund is a party in support of its obligations to such trustee;
provided that any such assignment to a trustee shall be subject to the
provisions of clause (a) of this Section 10.11.1. In the event that S&P, Moody's
or Thompson's BankWatch (or InsuranceWatch Ratings Service, in the case of
Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by Insurance Watch Ratings Service)) shall, after
the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the long-term
certificate of deposit rating or long-term senior unsecured debt rating of such
Lender, and the resulting rating shall be below BBB-, Baa3 or C (or BB, in the
case of Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)) respectively, then the
Borrower (with the consent of the Administrative Agent and the Issuer) shall
have the right, but not the obligation, upon notice to such Lender and the
Agents, to replace such Lender with an Assignee Lender in accordance with and
subject to the restrictions contained in this Section, and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and subject
to the restrictions contained in this Section) all its interests, rights and
obligations in respect of its Revolving Loan Commitment under this Agreement to
such Assignee Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any governmental
authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest and
fees (if any) accrued to the date of payment on the Loans made, and Letters of
Credit participated in, by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder.
SECTION 10.11.2. Participations. Any Lender may at any time sell to one
or more commercial banks or other Persons (each such commercial bank and other
Person being herein called a "Participant") participating interests in any of
the Loans, Commitments, participations in Letters of Credit and Letters of
Credit Outstandings or other interests of such Lender hereunder; provided,
however, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Agents shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement and each
of the other Loan Documents;
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<PAGE> 120
(d) no Participant, unless such Participant is an Affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, agree to any reduction in the interest rate or amount of fees
that such Participant is otherwise entitled to, a decrease in the
principal amount, or an extension of the final Stated Maturity Date, of
any Loan in which such Participant has purchased a participating
interest or a release of all or substantially all of the collateral
security under the Loan Documents or any Subsidiary Guarantor that is a
Material Subsidiary under any Subsidiary Guaranty, in each case except
as otherwise specifically provided in a Loan Document; and
(e) the Borrower shall not be required to pay any amount under
Sections 4.3, 4.4, 4.5, 4.6, 10.3 and 10.4 that is greater than the
amount which it would have been required to pay had no participating
interest been sold.
The Borrower acknowledges and agrees, subject to clause (e) above, that, to the
fullest extent permitted under applicable law, each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
SECTION 10.12. Confidentiality. The Lenders shall hold all non-public
information obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices and in
any event may make disclosure to any of their examiners, Affiliates, outside
auditors, counsel and other professional advisors in connection with this
Agreement or as reasonably required by any bona fide transferee, participant or
assignee or as required or requested by any governmental agency or
representative thereof or pursuant to legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of
such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
10.12, each Lender shall require any such bona fide transferee,
participant and assignee receiving a disclosure of non-public
information to agree in writing
(i) to be bound by this Section 10.12; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 10.12; and
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<PAGE> 121
(c) except as may be required by an order of a court of
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by the
Borrower or any Subsidiary.
SECTION 10.13. Other Transactions. Nothing contained herein shall
preclude the Agents or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS OR THE BORROWER THAT IS BROUGHT IN THE STATE OF NEW YORK
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW
YORK LOCATED IN NEW YORK COUNTY OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH SUCH LITIGATION. THE BORROWER FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AND EXPRESSLY AND IRREVOCABLY
APPOINTS CT CORPORATION SYSTEM AS ITS DOMICILE AND ADDRESS FOR SERVICE OF
PROCESS FOR PURPOSES OF ANY ACTION AS TO WHICH IT HAS SUBMITTED TO JURISDICTION
AS SET FORTH IN THIS SECTION 10.14, AND AGREES THAT SERVICE UPON SUCH AUTHORIZED
AGENT SHALL BE DEEMED IN EVERY RESPECT SERVICE OF PROCESS UPON THE BORROWER OR
ITS SUCCESSORS AND ASSIGNS, AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
SHALL BE TAKEN AND HELD TO BE VALID PERSONAL SERVICE UPON IT. THE BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS
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<PAGE> 122
BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS SECTION SHALL AFFECT THE
RIGHT OF ANY AGENT, ANY LENDER OR THE ISSUER TO SERVE LEGAL PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY SUCH PERSON TO BRING ANY
ACTION OR PROCEEDING AGAINST THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY
OTHER JURISDICTION. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE BORROWER
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. THE AGENTS, THE LENDERS, THE
ISSUER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE AGENTS, THE LENDERS, THE ISSUER OR THE BORROWER. THE BORROWER
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO
WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
AGENTS, THE LENDERS AND THE ISSUER ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER LOAN DOCUMENT.
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<PAGE> 123
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
NEXTEL PARTNERS OPERATING CORP.
By /s/ John D. Thompson
--------------------------------
Name: John D. Thompson
Title: CFO
Address: 4500 Carillon Point
Kirkland, WA 98033
Facsimile No.: (425) 828-8098
Attention: John Thompson
<PAGE> 124
DLJ CAPITAL FUNDING, INC.,
as the Syndication Agent and as Lender
By /s/ Eugene F. Martin
----------------------------------------
Name: Eugene F. Martin
Title: Senior Vice President
Address: 277 Park Avenue
10th Floor
New York, NY 10172
Facsimile No.: (212) 892-6031
Attention: Tanya Holman
<PAGE> 125
THE BANK OF NEW YORK,
as the Documentation Agent and as Lender
By /s/ Gerry Granovsky
-----------------------------------------
Name: GERRY GRANOVSKY
Title: VICE PRESIDENT
Address: One Wall St.
16th Floor
New York, NY 10286
Facsimile No.: (212) 635-8593
Attention: Gerry Granovsky
<PAGE> 126
BANK OF MONTREAL, Chicago Branch
as the Administrative Agent and as Lender
By /s/ Karen Klapper
-----------------------------------------
Name: Karen Klapper
Title: Director
Address: 430 Park Avenue
New York, NY 10022
Facsimile No.: (212) 605-1648
Attention: Karen Klapper
<PAGE> 127
LENDERS:
BARCLAYS BANK PLC
By /s/ Timothy C. Harrington
------------------------------
Name: Timothy C. Harrington
Title: Director
By
------------------------------
Name:
Title:
<PAGE> 128
FIRST UNION NATIONAL BANK
By /s/ Mark L. Cook
--------------------------
Name: Mark L. Cook
Title: Senior Vice
President
<PAGE> 129
DRESDNER BANK AG NEW YORK & GRAND
CAYMAN BRANCHES
By /s/ Patrick A. Keleher
-----------------------------------
Name: Patrick A. Keleher
Title: Vice PResident
By /s/ Helen Ng, P.E.
-----------------------------------
Name: Helen Ng, P.E.
Title: Assistant Vice President
<PAGE> 130
THE FUJI BANK, LIMITED
By /s/ Teiji Teramoto
--------------------------
Name: Teiji Teramoto
Title: Vice President
and Manager
<PAGE> 131
CARAVELLE INVESTMENT FUND, LLC
By /s/ Dean Criares
-------------------------------------
Name:
Title: By: Caravelle Advisors L.L.C.
Dean Criares
Managing Director
<PAGE> 132
COBANK, ACB
By /s/ Teresa L. Fountain
-------------------------------------
Name: Teresa L. Fountain
Title: Assistant Corporate Secretary
<PAGE> 133
ELC (CAYMAN), LTD.
By /s/ Thomas M. Finke
-------------------------------------
Name: Thomas M. Finke
Title: Managing Director
<PAGE> 134
ELC (CAYMAN), LTD.
CDO SERIES 1999-1
By E.A. Kratzman, III
---------------------------------------
Name: E.A. Kratzman, III
Title: Managing Director IDM
<PAGE> 135
GENERAL ELECTRIC CAPITAL CORPORATION
By Molly S. Fergusson
---------------------------------------
Name: Molly S. Fergusson
Title: Manager Operations
<PAGE> 136
<PAGE> 137
KEYPORT LIFE INSURANCE COMPANY
By Brian W. Good
---------------------------------------
Name: Brian W. Good
Title: Vice President & Portfolio
Manager
<PAGE> 138
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By Brian W. Good
---------------------------------------
Name: Brian W. Good
Title: Vice President,
Stein Roe & Franham Incorporated,
as Advisor to the Stein Roe
Floating Rate Limited Liability
Company
<PAGE> 139
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By Sheila Finnerty
---------------------------------------
Name: Sheila Finnerty
Title: Vice President
<PAGE> 140
MOUNTAIN CAPITAL CLO 1 LTD.
By Darren P. Riley
---------------------------------------
Name: Darren P. Riley
Title: Director
<PAGE> 141
OCTAGON LOAN TRUST
By: Octagon Credit Investors,
as Manager,
By Joyce C. DeLucca
----------------------------------------
Name: Joyce C. DeLucca
Title: Managing Director
<PAGE> 142
HARVARD MANAGEMENT COMPANY, INC.
By Timothy S. Petersoc
---------------------------------------
Name: Timothy S. Petersoc
Title: Authorized Signatory
<PAGE> 143
HIGHLAND CAPITAL MANAGEMENT, L.P.
By Mark K. Okada CFA
----------------------------------------
Name: Mark K. Okada CFA
Title: Executive Vice President
Highland Capital Management LP
<PAGE> 144
THE TORONTO DOMINION (NEW YORK), INC.
By Jorge A. Garcia
----------------------------------------
Name: Jorge A. Garcia
Title: Vice President
<PAGE> 145
VAN KAMPEN PRIME RATE INCOME TRUST
By Van Kampen Investment Advisory Corp.
By Darwin D. Pierce
----------------------------------------
Name: Darwin D. Pierce
Title: Vice President
<PAGE> 146
SCHEDULE I
to Credit Agreement
DISCLOSURE SCHEDULE
Item 6.7 ("Litigation")
None.
Item 6.8 ("Existing Subsidiaries")
NPCR, Inc., a Delaware corporation
Nextel WIP Lease Corp., a Delaware corporation
Nextel Partners of Upstate New York, Inc., a Delaware corporation
Item 6.11 ("Employee Benefit Plans")
None.
Item 6.12 ("Environmental Matters")
None.
<PAGE> 147
Item 6.15 ("Schedule of Exceptions")
(a) Pursuant to Section 4.1 of the Agreement, the following sets forth certain
disclosures and other exceptions to the representations made at Section 4.1 of
the Agreement regarding the validity of the FCC Licenses. This schedule is
divided into two parts: Part I addresses issues that may affect multiple
licenses among the FCC Licenses, while Part II addresses issues that affect only
individual licenses among the FCC Licenses.
Part I: Issues Affecting Multiple Licenses
XI. Different Types of Licenses Carry Different
FCC Obligations: The licensee rights and obligations applicable to the FCC
Licenses are not uniform but rather depend upon the conditions under which each
license was granted. The FCC Licenses generally fall into three categories as
follows:
11.1. EA Licenses: Some of the FCC Licenses are
authorizations, or geographically "partitioned" portions of authorizations, that
were issued to Nextel as a result of an FCC spectrum auction.
11.2. Wide Area Licenses: Other licenses among the
FCC Licenses were granted at specific sites, as opposed to Economic Areas. These
licenses authorized Nextel to build out the related channels in analog or
digital mode and were granted five-year waivers of the traditional one-year
construction deadline applicable to site-specific licenses. These site-specific,
five-year, analog/digital authorizations are known as Nextel's "wide-area"
licenses. On May 20, 1997 the FCC issued an order (DA 97-1059) finding that the
wide-area licenses of Nextel and other parties qualified for "rejustification"
of their extended construction periods but also shortened the length of the
construction periods from five years to two with a final deadline of May 20,
1999 or the earlier expiration date of the license, whichever comes first. On
April 15, 1999, the FCC announced through a Public Notice (DA 99-698) that the
FCC was temporarily suspending the May 20, 1999 construction deadline for
wide-area licensees due to a decision by the U.S. Court of Appeals for the
District of Columbia in Fresno Mobile Radio v. FCC, 165 F.3d 965 (D.C. Cir., Feb
5, 1999). On May 21, 1999, the FCC solicited comments on the construction
requirements for 800 MHz wide area licensees (Public Notice, DA 99-974). The FCC
has not released a decision in this proceeding.
11.3. Analog Licenses: Another group of licenses
reflected among the FCC Licenses were granted on a site-specific basis and
authorized only analog operations. No waiver of the traditional one-year
construction deadline was requested or granted. Other analog licenses among the
FCC Licenses may appear on the FCC's database as owned by Nextel, but because
Nextel has not yet closed on the purchase and sale of the facility, it may still
be deemed subject to a Nextel management agreement and therefore not qualified
for assignment from Nextel to any third party. Nextel is currently working to
resolve these issues by closing on the related transactions.
I-2
<PAGE> 148
XII. Chadmoore Request for Finders Preference
against Southeast Wide Area Licenses: On September 18, 1995 Chadmoore
Communications ("Chadmoore") filed a request for a finder's preference (the
"Chadmoore Request") against the "wide-area" authorizations initially granted to
Transit Communications ("Transit"), which were subsequently assigned to Dial
Call, Inc. and then assigned to Nextel. (Case No. 95F860). The Chadmoore Request
alleged that Transit misrepresented the number of analog channels it had
constructed on several analog stations, and that therefore the resulting
wide-area grants on the same channels were improper. Chadmoore claimed that it
should be awarded all of the wide-area licenses that were granted to Transit and
now held by Nextel. Thus, if successful, Chadmoore may become a short-spaced
co-channel licensee or an incumbent licensee in areas where Nextel is either
assigning wide-area licenses or EA licenses as part of the FCC Licenses. In
support of the Chadmoore Request, Chadmoore incorporated by reference numerous
finder's preference requests filed against Transit's analog stations. The
individual analog requests were filed by Chadmoore itself and by Peacock's Radio
and Wild's Computer, Partnership ("Peacock"). On November 22, 1995, Dial Call,
Inc. filed a Motion to Dismiss demonstrating numerous procedural defects with
Chadmoore's filing. Chadmoore opposed the Motion. On January 31, 1997, the FCC
requested further information from Nextel regarding Chadmoore's substantive
allegations. On March 18, 1997, Nextel responded. Chadmoore replied to Nextel's
filing on April 7, 1997. The Motion to Dismiss has not been ruled upon by the
FCC and the FCC has not reached a decision in this proceeding. Further, through
an agreement between Nextel and Peacock, Peacock has withdrawn 33 of the analog
finder's preference requests that it had filed against the Transit stations. The
FCC announced the withdrawal of the 33 Peacock cases by Public Notice, dated
June 30, 1999 (DA 99-1123).
Part II: Issues Affecting Individual Licenses
I WPDX385 in Worthington, IN (861, 863, 864, 865.1125, 862.6125): Nextel and
the former licensee have not yet consummated the transaction. Thus, Nextel
is not yet the legal owner of the subject facility. Nextel expects to close
the transaction in due course. Until consummation of the underlying
transaction, Partner is subject to the FCC's rules regarding protection of
"incumbent" SMR licensees.
II WPLM745 (C Block EA License)/KNRU551, Clay City, IN (865.7375): The KNRU551
865.7375 MHz channel is not on the list of assets to be assigned. On July
16, 1997, Nextel filed an informal request for reinstatement of channel
865.7375 MHz due to an error by the FCC in superseding the license. The FCC
has yet to act on this request. However, Nextel was awarded and is assigning
the C Block EA license (WPLM745) to Partner. To moot this issue, Nextel will
withdraw its informal request for action with the FCC to clear use of this
channel pursuant to the EA license and to make clear that the KNRU551
license is no longer subject to any reinstatement request.
(b) Pursuant to Section 4.1 of the Asset Transfer and Reimbursement Agreement,
the following sets forth certain disclosures and other exceptions to the
representations made at Section 4.1 of
I-3
<PAGE> 149
the Asset Transfer and Reimbursement Agreement regarding the validity of the FCC
Licenses. This schedule is divided into two parts: Part 1 addresses issues that
may affect multiple licenses among the FCC Licenses, while Part II addresses
issues that affect only individual licenses among the FCC Licenses.
Part I: Issues Affecting Multiple Licenses
1. Different Types of Licenses Carry Different FCC Obligations: The
licensee rights and obligations applicable to the FCC Licenses are not uniform
but rather depend upon the conditions under which each license was granted.
a. Wide Area Licenses: Other licenses among the FCC Licenses were
granted at specific sites, as opposed to Economic Areas. These licenses
authorized Nextel to build out the related channels in analog or digital mode
and were granted five-year waivers of the traditional one-year construction
deadline applicable to site-specific licenses. These site-specific, five-year,
analog/digital authorizations are known as Nextel's "wide-area" licenses. On May
20, 1997 the FCC issued an order (DA 97-1059) finding that the wide-area
licenses of Nextel and other parties qualified for "rejustification" of their
extended construction periods but also shortened the length of the construction
periods from five years to two with a final deadline of May 20, 1999 or the
earlier expiration date of the license, whichever comes first, governing all of
Nextel's wide-area licenses, Nextel recently filed a request for waiver of the
rejustified deadlines, generally requesting additional time to construct the
related facilities; the Commission has not yet acted on this waiver request, and
there can be no assurance that this waiver request will be granted.
b. Analog Licenses: Another group of licenses reflected among the FCC
Licenses were granted on a site-specific basis and authorized only analog
operations. No waiver of the traditional one-year construction deadline was
requested or granted. Other analog licenses among the FCC Licenses may appear on
the FCC's database as owned by Nextel, but because Nextel has not yet closed on
the purchase and sale of the facility, it may still be deemed subject to a
Nextel management agreement and therefore not qualified for assignment from
Nextel to any third party. Nextel is currently working to resolve these issues
by closing on the related transactions.
2. Chadmoore Request for Finders Preference against Southeast Wide Area
Licenses: On September 18, 1995 Chadmoore Communications ("Chadmoore") filed a
request for a finder's preference (the "Chadmoore Request") against the
"wide-area" authorizations initially granted to Transit Communications
("Transit"), which were subsequently assigned to Dial Call, Inc. and then
assigned to Nextel. (Case No. 95F860). The Chadmoore Request alleged that
Transit misrepresented the number of analog channels it had constructed on
several analog stations, and that therefore the resulting wide-area grants on
the same channels were improper. Chadmoore claimed that it should be awarded all
of the wide-area licenses that were granted to Transit and now held by Nextel.
Thus, if successful, Chadmoore may become a short-spaced co-channel licensee or
an incumbent licensee in areas where Nextel is either assigning wide-area
licenses or
I-4
<PAGE> 150
EA licenses as part of the FCC Licenses. In support of the Chadmoore
Request, Chadmoore Incorporated by reference numerous finder's preference
requests filed against Transit's analog stations. The individual analog requests
were filed by Chadmoore itself and by Peacock's Radio and Wild's Computer,
Partnership ("Peacock"). On November 22, 1995, Dial Call, Inc. filed a Motion to
Dismiss demonstrating numerous procedural defects with Chadmoore's filing.
Chadmoore opposed the Motion. On January 31, 1997, the FCC requested further
information from Nextel regarding Chadmoore's substantive allegations. On March
18, 1997, Nextel responded. Chadmoore replied to Nextel's filing on April 7,
1997. The Motion to Dismiss has not been ruled upon by the FCC and the FCC has
not reached a decision in this proceeding. Further, through an agreement between
Nextel and Peacock, Peacock has withdrawn 33 of the analog finder's preference
requests that it had filed against the Transit stations.
3. Canadian Border Channels: The channel targets set forth in this
transaction for the Upstate New York Section include channels available to
Nextel pursuant to a bilateral agreement between the government of the United
States and the Government of Canada entitled, Special Coordination Procedure for
the Use of Frequencies in the Bands 806-821 and 851-866 for Land Mobile Services
(the "SCP"). On January 15, 1997, the Federal Communications Commission ("FCC")
and Industry Canada, the Canadian telecommunications regulatory agency, approved
this SCP to permit Clearnet Communications, Inc. ("Clearnet") and Nextel to
implement spectrum efficient, seamless frequency-reuse plans in the common
border area to increase each company's service capacity and to facilitate
roaming. The SCP was necessary because the 800 MHZ Specialized Mobile Radio
("SMR") channels in the U.S. - Canada border area are split between the two
countries and among SMR and non-SMR frequency pools resulting in different
channels allocations and fewer channels being available for SMR use on both
sides of the common border. See Arrangement between the Department of
Communications of Canada and the Federal Communications Commission of the United
States concerning the use of the ban 806-890 along the Canada-United States
border, dated April 7, 1982 (the "Treaty").
The SCP permits Clearnet and Nextel to each use specific channels
within 100 km. of the U.S.-Canada border that are in the other countries'
frequency allocation and to operate those channels in excess of the Power Flux
Density limits specified in the Treaty subject to certain conditions including,
among other things, that:
- no service may be offered by Clearnet in the U.S. and by Nextel in
Canada;
- if these operations cause harmful electrical interference to primary
operations in either country, the operator must take immediate action
to mitigate the interference.
- if the interference cannot be resolved, the interfering station must
cease operation within 10 calendar days, except that, if operations
under the SCP are causing interference to public safety licenses, the
SCP authorized operation must immediately terminate upon being advised
of the Interference.
I-5
<PAGE> 151
In short, the SCP permits specified channels allocated for primary use by
Canadian licensees in the border area within Canada to be used by Nextel in the
U.S. within 100 km. of the border on a secondary basis to such Canadian
licensee(s). Nextel's use of the primary Canadian channels is also secondary to
any primary co-channel licensee in the U.S. outside of the 100 km. border area
boundary.
On May 24, 1998, the FCC and Industry Canada approved a revised SCP
(superseding the first SCP) expanding the number of channels available to both
Clearnet and Nextel and the number of regions in which sharing is permitted. The
revised SCP includes all channels included in the original SCP. Thus, under the
current revised SCP, Nextel may use 50 Canadian primary channels in the Upstate
New York Section on a secondary, non-interference basis and Clearnet has
reciprocal use of 50 U.S. primary channels in the Canadian border area. At
present, the channels are deployed at approximately 70 IDEN sites in the
Buffalo-Rochester-Syracuse area.
It will be necessary for Nextel to seek FCC approval to "assign" its
rights under the SCP for the Upstate New York Section (between 76N and 81N W
longitude) to Partner to enable Partner to use the SCP frequencies under the
transfer of control of Nextel WIP. Obtaining approval of this modification to
the SCP (which may result in a new SCP between Clearnet and Partner) will also
require coordination by the FCC and Clearnet with Industry Canada. Assuming
governmental approval, Partner's use of the SCP channels will remain dependent
on ongoing effective coordination with Clearnet.
In addition, a third party licensee in Buffalo has challenged the
validity of the SCP and the legality of the FCC's procedures in approving it. As
a result, the FCC is considering adopting rules to govern future SCPs and
specific procedures for site-specific licensing of channels under the SCP.
Part II: Issues Affecting Individual Licenses
1. WNYA313, Lexington, KY (861-865.9125): Currently licensed to David
Haag; Nextel has filed the FCC Form 405A (signed by the current licensee) to
have the license cancelled by the FCC to clear the channels for assignment to
License Sub. Such a request for cancellation is typically processed faster by
the FCC than an application for assignment, which is subject to a Public Notice
period. When the license cancellation request is granted and in final, License
Sub. will receive authority on the subject channels through assignment of EA
licenses WPLM680, WWPLM681 and WPLM682 (Block 47).
2. KNRT425, Junction City, KY (853.9375): On July 27, 1997,
Metropolitan Communications, licenses of SMR Station WPDD407 filed a Request to
Correct Radio Station Authorizations KNRT425, KNRT426 and KNRT427. Metropolitan
alleged that it did not consent to have its station included in CellCall's
applications for wide-area authority (which resulted in the grant of the
above-referenced licenses). Metropolitan filed this request to ensure co-channel
interference protection pursuant to Section 90.621 of the Commission's Rules.
I-6
<PAGE> 152
Nextel now has an agreement to purchase the Metropolitan station and has filed
an application for assignment of the facility. Nextel will work with
Metropolitan to have them withdraw its pending Request. Once the Metropolitan
license is granted, Nextel can then assign or cancel the Metropolitan license in
order that License Sub have an unencumbered channel. Typically the FCC will not
take action on the underlying issue raised in the proceeding when the parties
withdraw the request as moot.
3. KNRT 426, Lexington, KY - See KNRT 425 at Item 2.
4. KNRT 427, Lexington, KY - See KNRT 425 at Item 2.
5. WPCO299, Boise, ID (852.0375): This license is currently licensed to the
former licensee, Rattan Shukla. The license was assigned to Nextel on June 29,
1998 but due to an application for renewal filed by the previous licensee, the
FCC reassigned the license to 2.1. Mr. Shukla on August 24, 1998. Nextel will be
contacting the FCC to properly revert the license back to Nextel.
6. KNNH464, Little Falls, NY (856-860.1375): Nextel is reviewing its internal
records to confirm that the transaction between the former licensee and Nextel
has been consummated.
7. KNRU396, Corpus Christi, TX (861-865.7375): Nextel and the former licensee
have not yet consummated the transaction. Thus, Nextel is not yet the legal
owner of the subject facility. Nextel expects to close the transaction within
the next two weeks.
8. KNRU398, Corpus Christi, TX (861-865.1375): Nextel and the former licensee
have not yet consummated the transaction. Thus, Nextel is not yet the legal
owner of the subject facility. Nextel expects to close the transaction within
the next two weeks.
9. WPEB370, Vidor, TX (853.4125): Nextel and the former licensee have not yet
consummated the transaction. Thus, Nextel is not yet the legal owner of the
subject facility. Nextel expects to close the transaction within the next thirty
to sixty days. If this transaction is not consummated by the time of the closing
of the subject transaction between Nextel and License Sub, Nextel believes it
can designate License Sub as the responsible assignee in the relevant
transaction.
10. WPE1816, Scranton, PA (861.3875): Nextel and the former licensee have not
yet consummated the transaction. Thus, Nextel is not yet the legal owner of the
subject facility. Nextel expects to close the transaction within the next thirty
to sixty days. If this transaction is not consummated by the time of the closing
of the subject transaction between Nextel and License Sub, Nextel believes it
can designate License Sub as the responsible assignee in the relevant
transaction.
11. WPEJ918, Honolulu, HI (854.7375): Nextel and the former licensee have not
yet consummated the transaction. Thus, Nextel is not yet the legal owner of the
subject facility.
I-7
<PAGE> 153
Nextel expects to close the transaction within the next thirty
to sixty days. If this transaction is not consummated by the time of the closing
of the subject transaction between Nextel and License Sub, Nextel believes it
can designate License Sub as the responsible assignee in the relevant
transaction.
12. WPFZ932, Clarksville, NY (852.7125): Nextel and the former licensee have
not yet consummated the transaction. Thus, Nextel is not yet the legal owner of
the subject facility. Nextel expects to close the transaction within the next
thirty to sixty days. If this transaction is not consummated by the time of the
closing of the subject transaction between Nextel and License Sub, Nextel
believes it can designate License Sub as the responsible assignee in the
relevant transaction.
13. WPIU822, Gulf Breeze, FL (861-865.9875): Nextel and the former licensee
have not yet consummated the transaction. Thus, Nextel is not yet the legal
owner of the subject facility. Nextel expects to close the transaction within
the next thirty to sixty days. If this transaction is not consummated by the
time of the closing of the subject transaction between Nextel and License Sub,
Nextel believes it can designate License Sub as the responsible assignee in the
relevant transaction.
14. WPKK516, Victor, NY (864.0125): Nextel and the former licensee have not
yet consummated the transaction. Thus, Nextel is not yet the legal owner of the
subject facility. Nextel expects to close the transaction within the next thirty
to sixty days. If this transaction is not consummated by the time of the closing
of the subject transaction between Nextel and License Sub, Nextel believes it
can designate License Sub as the responsible assignee in the relevant
transaction.
Item 7.1.12 ("Leased Properties")
[See Attached Chart.]
I-8
<PAGE> 154
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
PA0133 Gameland P-A133-A0 Mid Atlantic Complete $1,000
PA0134 COLEBROOK P-A134-GO Mid Atlantic Complete $ 600 1/1/98
PA0138 Glenwood P-A138-A Mid Atlantic Complete $1,800 5/5/98
PA0139 Highspire P-A139-DO Mid Atlantic Complete $1,800 7/31/97
PA0143 Manchester P-A143-AO Mid Atlantic Complete $1,500 3/21/97
PA0145 Columbia P-A145-B0 Mid Atlantic Complete $1,100 10/8/97
PA0146 Glenmoore P-A146-CO Mid Atlantic Complete $ 600 3/31/97
PA0147 Millport Mid Atlantic Complete $1,767
PA0148 York P-A148-CQ Mid Atlantic Complete $1,500
PA0149 Potosi P-A149-AO Mid Atlantic Complete $1,000 2/12/97
PA0151 South York P-A151-BO Mid Atlantic Complete $1,500 10/27/97
PA0152 Elizabethtown P-A152-BO Mid Atlantic Complete $1,500
PA0290 Hershey P-A290-BO Mid Atlantic Complete $2,000 4/7/97
PA0351 Summerdale P-A351-00 Mid Atlantic Complete $1,000
PA0354 Carlisle P-A354-AO Mid Atlantic Complete $1,000
PA0361 Dallastown P-A361-BQ Mid Atlantic Complete $1,200
PA0363 West York P-A363-AO Mid Atlantic Complete $1,500 XX
PA0506 Hunterstown P-A506-AO Mid Atlantic Complete
PA0507 New Oxford P-A507-AQ Mid Atlantic Complete
PA0508 Mt. Holly P-A508-00 Mid Atlantic Complete
Springs
PA0512 Harrisburg P-A512-AQ Mid Atlantic Complete
West
PA0600 Allendale P-A600-A0 Mid Atlantic Complete $1,000 5/1/98
PA0601 Rawlinsville P-A601-B0 Mid Atlantic Complete $1,026 8/1/98
PA0603 East Earl Mid Atlantic Complete
PA0130 Brecknock P-A130-FO Mid Atlantic Complete $ 600 6/1/98
PA0131 Schoeneck P-A131-DO Mid Atlantic Complete $ 800 6/1/98
PA0132 Hopeland P-A132-CO Mid Atlantic Complete $ 700 1/1/98
PA0135 Londonderry P-A135-JO Mid Atlantic Complete $1,750 3/1/98
PA0136 Allendale P-A136-EQ Mid Atlantic Complete $1,350 12/1/98
PA0141 Summit P-A141-GQ Mid Atlantic Complete $ 600 7/1/97
PA0142 Yocumtown P-A142-DO Mid Atlantic Complete $ 600 12/16/97
PA0242 Panther Head P-A242-AQ Mid Atlantic Complete $1,000 10/23/98
PA0244 Swatara P-A244-CQ Mid Atlantic Complete $ 750 XX
PA0274 Annville P-A274-A Mid Atlantic Complete $ 600 6/1/98
PA0350 Green Spring P-A350-AO Mid Atlantic Complete $1,000 6/1/98
PA0355 Newville P-A355-AO Mid Atlantic Complete $ 500
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE CREATED (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C>
PA0133 Colo N Y y Motorola C&E
PA0134 Colo Y y y Colebrook-Terry
PA0138 Colo Y y y tor, Site Micronet, Inc.
PA0139 Colo Y y y AGA Association
PA0143 Colo Y Y y Motorola C&E
PA0145 Colo Y Y y Motorola C&E
PA0146 Colo Y y y Lancaster Housing Auth
PA0147 Colo N y y Blue Ridge Cable Techn
PA0148 Colo N y y ent/Gene e York Water Comp
PA0149 Colo N Y y Motorola C&E
PA0151 Colo N y y T. Kuhn to Robert Bran
PA0152 Colo N y y Citadel Broadcasting
PA0290 Colo Y y y tor, Site Micronet, Inc.
PA0351 Colo N y y Motorola C&E
PA0354 Colo N y y vid Grah Borough Municipal
PA0361 Colo N y y Dallastown-YOE Water Au
PA0363 Colo N y y nt/Gener e York Water Comp
PA0506 Colo y y on Laug ceton Towers - PA
PA0507 Colo y y on Laug ceton Towers - PA
PA0508 Colo y y Princeton Towers - PA
PA0512 Colo y y American Tower System
PA0600 y y Mark Bitting
PA0601 Colo y y ul Holli DCA Radio Co., Inc.
PA0603 Colo y y Triangle Communicati
PA0130 RL N y y Lloyd, David & Ella Ma
PA0131 RL N y y F&M Hat Co., Inc
PA0132 RL N y y Lester & Dorothy Bol
PA0135 RL N y Director, Site Micronet, Inc.
PA0136 RL N y y PA Turnpike Comm
PA0141 RL Y y y Richard K. Dennis
PA0142 RL Y y y Steven A. Shue
PA0242 RL N y y artin Ma M&S Mack
PA0244 RL N y y Francis Ditzler
PA0274 RL Y y y Henry Emrich
PA0350 RL Y Y y Bruce & Virginia Lon
PA0355 RL N Y Y Harry C.Barrick, Jr.
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
PA0133 5 Harristown Road Glen Rock NJ (07452 y y
PA0134 500 Hillcrest Road Lancaster PA 17603-2417 y y
PA0138 0 York Road, Bld Jamison PA 18929 n n
PA0139 Rittenhouse Square Philadelphia PA 19103 n y
PA0143 5 Harristown Road Glen Rock NJ (07452 y y
PA0145 5 Harristown Road Glen Rock NJ (07452 y y
PA0146 3 E. Farnum Street Lancaster PA 17602 y y
PA0147 1 Delaware Avenue Palmerton PA 18071 n y
PA0148 Market Street, P.O. York PA 17405-7089 y y
PA0149 5 Harristown Road Glen Rock NJ (07452 y y
PA0151 60 Starcross Road York PA 17403 n y
PA0152 9 Buckingham Bl Elizabethtown PA 17022 n y
PA0290 0 York Road, Bld Jamison PA 18929 n n
PA0351 5 Harristown Road Glen Rock NJ 07452 y y
PA0354 3 W. South Street Carlisle PA 17013 y y
PA0361 of Red Lion, Cen Red Lion PA 17356 y y
PA0363 Market Street, P.O. York PA 17405-7089 y y
PA0506 56 Tamarack Circle Skillman NJ (08558 y y
PA0507 56 Tamarack Circle Skillman NJ (08558 y y
PA0508 2341 Belair Drive Dover PA 17315-3501 n y
PA0512 chmond Avenue Houston TX 77046 n y
PA0600 25 Linwood Street New Cumberland PA 17070 n y
PA0601 New Providence PA 17560 n y
PA0603 40 West Main St New Holland PA 17557 n y
PA0130 61 Turtle Hill Road Ephrata PA 17522 n y
PA0131 Box 40, 103 Walnut Denver PA 17517 y y
PA0132 East 28th Div. H Lititz PA 17543 n y
PA0135 0 York Road, Bld Jamison PA 18929 n y
PA0136 P.O. Box 67676 Harrisburg PA 17106-7676 y y
PA0141 295 Sipe Road York Haven PA 17370 n y
PA0142 Green Spring R York PA 17402 n y
PA0242 P.O. Box 452 Quakertown PA 18951 n y
PA0244 RD # 1, Box 1585 Jonestown PA 17038 n y
PA0274 575 N. Weber Annville PA 17003 n y
PA0350 110 Long Road Newville PA 17241 y y
PA0355 455 Center Road Newville PA 17241 n y
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
PA0133 n Affiliate
PA0134 n Affiliate
PA0138 y Consent/control
language
PA0139 y Consent/control
language
PA0143 n Affiliate
PA0145 n Affiliate
PA0146 n Affiliate
PA0147 y Consent/control
language
PA0148 n Affiliate
PA0149 n Affiliate
PA0151 y Consent/control
language
PA0152 y Consent/control
language
PA0290 y Consent/control
language
PA0351 n Affiliate
PA0354 n Affiliate
PA0361 n Affiliate
PA0363 n Affiliate
PA0506 n Affiliate
PA0507 n Affiliate
PA0508 y Consent/control
language
PA0512 y Consent/control
language
PA0600 y Consent/control
language
PA0601 y Consent/control
language
PA0603 n notice
PA0130 y Consent/control
language
PA0131 n Affiliate
PA0132 y Consent/control
language
PA0135 n Consent/contol
language
PA0136 n Affiliate
PA0141 y Consent/control
language
PA0142 y Consent/control
language
PA0242 y Consent/control
language
PA0244 y Consent/control
language
PA0274 y Consent/control
language
PA0350 n Affiliate
PA0355 n notice
</TABLE>
<PAGE> 155
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
PA0356 Stoughstown P-A356-AO Mid Atlantic Complete $1,000 6/1/98
PA0362 Smoketown P-A362-AO Mid Atlantic Complete $ 700 7/1/98
PA0372 Landis Valley P-A372-AO Mid Atlantic Complete $ 800 7/15/98
PA0501 Hanover P-A501-00 Mid Atlantic Complete
PA0503 East Berlin P-A503-AO Mid Atlantic Complete $ 650
PA0509 Balltown P-A509-00 Mid Atlantic Complete
PA0510 Breezewood P-A510-AQ Mid Atlantic Complete $ 650
PA0511 Walnut Bottom P-A511-BQ Mid Atlantic Complete $ 750
PA0514 Falmouth P-A514-00 Mid Atlantic Complete $ 750
PA0520 Grandview P-A520-AO Mid Atlantic Complete $1,000
PA0521 Fairland P-A521-AQ Mid Atlantic Complete $1,000
PA0522 Paradise P-A522-00 Mid Atlantic Complete $ 825
PA0524 Adamstown P-A524-OQ Mid Atlantic Complete
PA0527 Fontana P-A527-00 Mid Atlantic Complete
PA0528 Avon P-A528-00 Mid Atlantic Complete
PA0140 Camp Hill P-A140-EQ Mid Atlantic Complete
PA0193 Beaver Creek P-A193-00 Mid Atlantic Complete
PA0194 Penobscot P-A194-00 Mid Atlantic Complete
PA0208 Bald Mounti P-A208-00 Mid Atlantic Complete
PA0209 Scranton P-A209-00 Mid Atlantic Complete
PA0234 I-40 P-A234-00 Mid Atlantic Complete
PA0236 Pine Junction P-A236-00 Mid Atlantic Complete
PA0283 Catawissa P-A283-00 Mid Atlantic Complete
Mountain
59
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE CREATED (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C>
PA0356 RL y Y y Bruce & Emaline Mart
PA0362 RL n y y Elias & Linda Beiler
PA0372 RL y y y Nelson Roher
PA0501 RL y y Link Communications, I
PA0503 RL Y y James, Ruth & Thelma
PA0509 RL y y Fremont & Ethel Kunt
PA0510 RL y y Jeffery & Melody Asp
PA0511 RL y y Nathan & Julia Ebers
PA0514 RL y y Herman & Martha Zirk
PA0520 RL y y Charles & Marylin Zerp
PA0521 RL y y Jane Eshelman & Jean M
PA0522 RL
PA0524 RL Y y hton Lauceton Towers - PA
PA0527 RL Y y Princeton Towers - PA, Inc.
PA0528 RL Y y hton Lauceton Towers - PA
PA0140 TI Y y y Presbyterian Apartments
PA0193 y y Service Electric Co.
PA0194 y y Robert Thoams Conw
PA0208 y y Rob Conway & Thomas C
PA0209 y y Council Plaza 550
PA0234 y y Robert Thomas Conw
PA0236 y y Service Electric Co.
PA0283 y y Robert Thomas Conw
58
</TABLE>
LEASE INFORMATION
<TABLE>
<CAPTION>
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
PA0356 McCullough Ro Shippensbur PA 17257 y y
PA0362 63 Witmer Road Lancaster PA 17602 n y
PA0372 2651 Oregon P Lititz PA 17543 n y
PA0501 5 Voglesong Ro York PA 17404 y y
PA0503 Frickes School York Springs PA 17372 n y
PA0509 415 Oxford Road Gardners PA 17324 n y
PA0510 0 The Spangler New Oxford PA 17350 y y
PA0511 44 Kline Road Shippensbur PA 17257 y y
PA0514 0 York Haven Ro York Haven PA 17370 n y
PA0520 091 Milton Grove Mount Joy PA 17552 n y
PA0521 375 Fruitville Pik Manheim PA 17545 n y
PA0522
PA0524 56 Tamarock Circle Skillman NJ (08558 n y
PA0527
PA0528 56 Tamarock Circle Skillman NJ (08558 n y
PA0140 2 North 2nd Street Harrisburg PA 17010 y y
PA0193 201 W Centre Str Mahanov PA 17948 n y
PA0194 09 Madison Avenue Scranton PA 18510 n y
PA0208 09 Madison Avenue Scranton PA 18510 y y
PA0209 550 Clay Avenue Scranton PA 18510 n y
PA0234 09 Madison Avenue Scranton PA 18510 n y
PA0236 201 W Centre Street Mahanov PA 17948 n y
PA0283 09 Madison Avenue Scranton PA 18510 n y
22 55
</TABLE>
LEASE INFORMATION
<TABLE>
<CAPTION>
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
PA0356 n affiliate
PA0362 y consent/control
language
PA0372 y consent/control
language
PA0501 n affiliate
PA0503 n notice
PA0509 n notice
PA0510 n consent/control
language
PA0511 n affiliate
PA0514 n notice
PA0520 n notice
PA0521 n notice
PA0522
PA0524 n notice
PA0527
PA0528 n notice
PA0140 n affiliate
PA0193 y consent/control
language
PA0194 y consent/control
language
PA0208 n affiliate
PA0209 y consent/control
language
PA0234 y consent/control
language
PA0236 y consent/control
language
PA0283 y consent/control
language
</TABLE>
I-10
<PAGE> 156
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
PROJECT LEASE COPY OF COPY
NAME LEASE COLO/RAW LAND/ PAYMENTS LEASE SENT TO
PROJECT (SITE SITE ID NEXTEL'S SITE LEASE COMMENCEMENT TENANT STARTED CREATED PARTNER
CODE NAME) (WITH PREFIX) MARKET NAME LEASED RATE DATE IMPROVEMENT (Y/N) (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
NEW YORK NON-SITE LEASES
NY004B Rochester Sales Ofc/Whs Upstate NY Complete $11,550 01-Jun-98 Y
NY005S Schenectady Storage Upstate NY Complete $1,500 01-Mar-98 Y
NY007S Albany small storage Upstate NY Complete $85 01-May-98 Y
NY009B Albany/Colonie Office Upstate NY Complete $12,204 18-Jun-98 Y
NY010B Buffalo Amherst Sales Upstate NY Complete $10,887 15-Jun-98 Y
NY9752 Syracuse RSO Upstate NY Complete $13,954 01-Jan-98 Y
6 6
HAWAII NON-SITE LEASES
H100 1B Hawaii Sales Office PNW Complete $19,290 30-Jun-98 Y
H1900 1 Hawaii Airport Engineering offi PNW Complete $13,291 24-Nov-97 Y
2 6
NON-SITE LEASES
PA Mechanicsburg Sales/Whse Mid Atlantic Complete $4,169 5/15/98 Y
OO7B
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
FINANCING LANDLORD RETURN
LEASE LANGUAGE CONSENT CONSENT RECEIPT
PROJECT CONTACT ZIP ASSIGNABLE PRESENT REQUIRED OBTAINED RECEIVED
CODE PERSON LANDLORD ADDRESS CITY STATE CODE (Y/N) (Y/N) (Y/N) (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NEW YORK NON-SITE LEASES
NY004B Winton Place 84 Humboldt Rochester NY 14609 N Y Y
Business Centre Street
NY005S Marshal & P.O. Box 3358 Schenect 12303 N
Thomson Moving
& Storage
NY007S U-Haul Self N N N
Storage
NY009B American Real 3 Columbia Albany NY 12203 N Y Y
Estate Investment, Circle
LP
NY010B 300 Centerpointe 350 Essjay Road Amherst NY 14221 N N Y
Corporation
NY9752 Rockwest Center 1005 West Fayett Syracuse NY 13204 Y Y N
II, LLC
1 3
HAWAII NON-SITE LEASES
H100 1B Paiea Properties 550 Paiea St Honolulu HI 96819 N Y Y
H1900 1 Airport Industrial 3375l Kaopaka Honolulu HI 96819 Y Y N
Assoc., A Hawaii Street
Limited
Partnership
1 2
NON-SITE LEASES
PA First Industrial P.O. Box 754 Chicago IL 60675 N Y Y
OO7B Financing
0 1
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT
CODE COMMENTS
<S> <C>
NEW YORK NON-SITE LEASES
NY004B consent/no control language
NY005S Off Rent Roll, being paid with P.O., 1 year
lease w/ auto renewal, either party may
terminate on 30 days notice
NY007S contract/no lease
NY009B consent/no controlling language/NCI
Guaranty survives assignment
NY010B consent/controlling language
NY9752 affiliate/NCI guaranty survives assignment
HAWAII NON-SITE LEASES
H100 1B NCI guaranty survies assignment
H1900 1 Incl. airport cell site; NIC guaranty survives
assignment
NON-SITE LEASES
PA consent/control language
OO7B
</TABLE>
I-11
<PAGE> 157
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
PROJECT LEASE COPY OF COPY
NAME SITE ID NEXTEL'S LEASE COLO/RAW LAND/ PAYMENTS LEASE SENT TO
PROJECT (SITE (WITH MARKET SITE LEASE COMMENCEMENT TENANT STARTED CREATED PARTNER
CODE NAME) PREFIX) NAME LEASED RATE DATE IMPROVEMENT (Y/N) (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
FL1932 Suwannee River FL1932F Florida Complete $1,750 Const RL y
FL1037 Jennings FL1037A Florida Complete $1,500 10/20/97 Colo y Y y
FL1200 Five Points FL1200F Florida Complete $1,750 Const Colo y y
FL1929 1-10 /1-75 FL1929F Florida Complete $1,750 Const Colo y y
FL1931 Live Oak FL1931F Florida Complete $1,750 Const Colo y y
FL1933 Madison South FL1933F Florida Complete $1,750 Const Colo y y
FL1934 Greenville FL1934F Florida Complete $1,750 Const Colo Y y
FL1935 Aucilla River/110 FL1935F Florida Complete $1,750 Const Colo y y
FL1936 Lloyd FL1936A Florida Complete $1,750 Const Colo y y
FL1944 Quincy FL1944F Florida Complete $1,750 Const Colo y y
FL1955 Hardaway FL1955F Florida Complete $1,750 Const Colo y y
FL7031 Hillcoat FL7031C Florida Complete Colo y y y
FL7049 Columbia FL7049A Florida Complete $1,750 at any time Colo
FL19399 Drifton FL1939F Florida Complete $1,750 Const Colo y y
FL1945 Chattahoochee South FL1945F Florida Complete $1,750 Const y y
15 14
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
FINANCING LANDLORD
LEASE LANGUAGE CONSENT CONSENT
PROJECT CONTACT ZIP ASSIGNABLE PRESENT REQUIRED OBTAINED
CODE PERSON LANDLORD ADDRESS CITY STATE CODE (Y/N) (Y/N) (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
FL1932 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 y y n
FL1037 Communications Tower 1760 The Exchange NW Atlanta GA 30339 N N Y
Suite 20
FL1200 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL1929 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL1931 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL1933 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL1934 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL1935 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL1936 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL1944 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 y y n
FL1955 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
FL7031 Prop. Alltel Communications P.O. Box 217 Little Rock AR 72203 Y Y n
Mngmt Inc.
Dept.
FL7049 Aubrey & Kelley Bailey
FL19399 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y y n
FL1945 OPM-USA 325 Interstate Blvd. Sarasota FL 34240 Y Y n
13 13
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
RETURN
RECEIPT
PROJECT RECEIVED
CODE (Y/N) COMMENTS
<S> <C> <C>
FL1932 affiliate
FL1037 consent/control
language
FL1200 affiliate
FL1929 affiliate
FL1931 affiliate
FL1933 affiliate
FL1934 affiliate
FL1935 affiliate
FL1936 affiliate
FL1944 affiliate
FL1955 affiliate
FL7031 affiliate
FL7049
FL19399 affiliate
FL1945 affiliate
</TABLE>
I-12
<PAGE> 158
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
NY5008 CATSKILL U-008G-PO Upstate Complete $1,750.00 08-Mar-98
NY
NY5010 ATHENS U-010A-PO Upstate Complete $1,500.00 20-Jun-98
NY
NY5022 MANOR ROCK U-022A-PO Upstate Complete
NY
NY5028 EAST CHATHAM U-028E-OO Upstate Complete
NY
NY5030 BALLSTON U-030A-AO Upstate Complete $1,250.00 03-Sep-98
NY
NY5032 ST. PETERS U-032F-PO Upstate Complete $2,000.00 20-Mar-98
NY
NY5036 PALMER RIDGE U-036B-PO Upstate Complete $1,866.00 17-Jul-98
NY
NY5038 GLEN FALLS U-038B-PO Upstate Complete $1,500.00 11-May-98
NY
NY5044 LAKE GEORGE U-044B-AO Upstate Complete
NY
NY5110 RAVENA U-110B-AP Upstate Complete $1,500.00 6/15/98
NY
NY5115 MEADOW U-115B-AP Upstate Complete
NY
NY5120 BETHLEHEM U-120D-AP Upstate Complete $1,666.00 09-Jun-98
NY
NY5125 OLCOTT HILL U-125A-AP Upstate Complete $1,600.00 16-Apr-98
NY
NY5135 SHAKER U-135B-AP Upstate Complete
NY
NY5145 WESTMERE U-145A-AP Upstate Complete $1,800.00 16-Mar-98
NY
NY5150 SAMARITAN U-150A-AP Upstate Complete $1,000.00 03-Apr-98
NY
NY5155 NISKAYUNA U-155B-AP Upstate Complete Abatement 7/30/98
NY
NY5160 COLONIE U-160E-AP Upstate Complete Abatement 9/28/98
NY
NY5162 ST. GEORGE U-162A-AP Upstate Complete $1,667.00 25-Feb-98
NY
NY5167 CLIFTON PARK U-167X-R1 Upstate Complete $700.00 08-Jul-98
NY
NY5170 Rotterdam U-170C-AP Upstate Complete $1,500.00 7/21/98
NY
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5008 Colo y y Contracts Sprint Spectrum
Manager
NY5010 Colo y y Pete Mercer Hudson Valley RSA
Cellular Partnership
NY5022 Colo y y Hudson Valley RSA
Cellular Partnershhp
NY5028 Colo y Arthur & Willis
Hammel
NY5030 Colo y Tom Wonsiew Lane Enterprises, Inc.
NY5032 Colo y y Frank Fitzgerald Saratoga Harness
Racing
NY5036 Colo y y Mobile/ATTN Cellco Partnership
Network
NY5038 Colo y y Contracts Sprint Spectrum
Manager
NY5044 Colo y y Edward Dennis Dennis
Communications
NY5110 Colo y y Contracts Sprint Spectrum
Manager
NY5115 Colo y y Mobile/ATTN Cellco Partnership
Network
NY5120 Colo y antic Cellco Partnership
Mobile/ATTN:
Network
NY5125 Colo y y Contracts Sprint Spectrum
Manager
NY5135 Colo y y Division Time Warner
President Entertainment-
Advance/Newhouse
Partnership
NY5145 Colo y y Division Time Warner
President Entertainment-
Advance/Newhouse
Partnership
NY5150 Colo y P. Patterson City of Troy
NY5155 Colo y Town Town of Colonie
Atto0rney
NY5160 Colo y Town Attorney Town of Colonie
NY5162 Colo y y Mobile/ATTN Cellco Partnership
Network
NY5167 Colo y Wayne Wagner
NY5170 Colo y Edmund Moranski
LEASE INFORMATION
<CAPTION>
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5008 ain Street, 5 Kansas City MO 64112 y y
NY5010 aconic Park Chattam NY 12037 y y
NY5022 e Taconic Pl Catham NY 12037 y y
NY5028 pper Cady Old Chatham NY 12136 y y
NY5030 tzdale Drive Camp Hill PA 17011 n y
NY5032 P.O. Box 35 arasota Spring NY 12866 n y
NY5036 shington Vall Bedminster NJ 07921 y y
NY5038 sin Street, 5 Kansas City MO 64112 y y
NY5044 County Rout Argyle NY 12809 y y
NY5110 ain Street, 5 Kansas City MO 64112 y y
NY5115 shington Vall Bedminster NJ 07921 y y
NY5120 shington Vall Bedminster NJ 07921 y y
NY5125 ain Street. 5 Kansas City MO 64112 y y
NY5135 shington Ave Albany NY 12203 N y
NY5145 shington Ave Albany NY 12204 N y
NY5150 Monument S Troy NY 12180 y y
NY5155 534 Loudon Newtonville NY 2128-050 y y
NY5160 534 Loudon Newtonville NY 2128-050 y y
NY5162 shington Vall Bedminster NJ 07921 y y
NY5167 entury Park Clifton Park NY 12065 y y
NY5170
LEASE INFORMATION
<CAPTION>
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
NY5008 n Affiliate
NY5010 N Affiliate
NY5022 n Affiliate
NY5028 n affiliate
NY5030 n notice
NY5032 n Notice
NY5036 n Affiliate
NY5038 n Affiliate
NY5044 n Affiliate
NY5110 n Affiliate
NY5115 n Affiliate
NY5120 n Affiliate
NY5125 n Affiliate
NY5135 y Consent/no control
language
NY5145 y Consent/no control
language
NY5150 n Affiliate
NY5155 n affiliate
NY5160 n affiliate
NY5162 N Affiliate
NY5167 n affiliate
NY5170 n terminated by
market
</TABLE>
I-13
<PAGE> 159
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
NY5255 WARNERS U-255D-AP Upstate Complete $1,689.33 03-Apr-98
NY
NY5256 Meeker Hill U-256C-AP Upstate Compiete $2,002.42 13-Feb-98
NY
NY5258 HOMER U-258A-PQ Upstate Complete $1,545.00 01-Jan-98
NY
NY5260 CORTLAND U-260D-AP Upstate Complete $1,545.00 01-Mar-98
NY
NY5262 MARATHON U-262D-PQ Upstate Complete $1,545.00 01-Jan-98
NY
NY5264 WHITNEY U-264A-PS Upstate Complete $1,545.00 01-Dec-97
NY
NY5266 Kirkwood U-266A-AP Upstate Complete $ 300.00 01-May-98
NY
NY5273 POPES RAVINE U-273D-AP Upstate Compiete $1,500.00 01-Jan-98
NY
NY5276 ENDICOTT U-276A-PQ Upstate Complete $2,295.00 01-Jan-98
NY
NY5282 Ingraham Hill U-282C-AP Upstate Complete $1,350.00 01-Feb-98
NY
NY5300 FORT HILL U-300A-PQ Upstate Complete $1,689.33 01-Apr-98
NY
NY5302 PITTSFORD U-302C-PS Upstate Complete $1,600.00 TBD
NY
NY5304 MANCHESTER U-304D-PQ Upstate Complete $1,000.00 27 -Nov-97
NY
NY5308 VICTOR U-308A-A0 Upstate Complete $1,600.00 11 -Feb-98
NY
NY5312 BRIGHTON U-312A-PQ Upstate Complete $1,200.00 17 -Nov-97
SOUTH NY
NY5314 HENRIETTA U-314E-PQ Upstate Complete $1,500.00 21 -Jan-98
NY
NY5316 WEST U-316A-PS Upstate Complete $1,500.00 18 -Feb-98
HENRIETTA NY
NY5318 CLIFTON U-318A-PS Upstate Complete $1,545.00 01 -Jan-98
NY
NY5320 BERGEN U-320B-P0 Upstate Complete $1,500.00 15 -Jan-98
NY
NY5324 WEST BATAVIA U-324D-PQ Upstate Complete $1,500.00 30-Jan-98
NY
NY5326 PEMBROKE U-326B-PQ Upstate Complete $1,500.00 23 -Feb-98
NY
NY5328 NORTH U-32BA-PQ Upstate Complete $1,545.00 31 -Dec-97
WEBSTER NY
NY5330 MIDVALE U-330E-PS Upstate Complete $ 800.00 20 -Nov-97
NY
NY5334 ONTARIO U-334A-00 Upstate Complete $1,546.00 10/5/98
NY
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5255 Colo y y Manager, Real AT&T Corp.
Estate
NY5256 Colo y y Manager, Real AT&T Corp.
Estate
NY5258 Colo y y Robert O Bailey Frontier
NY5260 Colo y y Robert O Bailey Frontier
NY5262 Colo y y Robert O Bailey Frontier
NY5264 Colo y y Robert O Bailey Frontier
NY5266 Colo y y Richard Kocak R. Kocak dba Tri-
Cities Communications
NY5273 Colo y y Paul T. Titus Titus Broadcasting
NY5276 Colo n Upstate Cellular
NY5282 Colo y y nd Mobile Produ Motorola
NY5300 Colo y y Manager, Real AT&T Corp.
Estate
NY5302 Colo y y Harris & Rainey
Association
NY5304 Colo y y Doroth Village of Manchester
NY5308 Colo y y Flower City
Communications, Inc.
NY5312 Colo y y Brighton Fire District
NY5314 Colo y Contract Sprint Spectrum
Management
NY5316 Colo y Robert & Betty Graham
NY5318 Colo Upstate Cellular
NY5320 Colo Sprint Spectrum
NY5324 Colo Sprint Spectrum
NY5326 Colo y y Contract Sprint Spectrum
Management
NY5328 Colo y y Robert O Bailey Frontier
NY5330 Colo y y Peter D. Quinzi Village of East
Rochester
NY5334 Colo n Upstate Cellular
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5255 Promenade I Atlanta GA 30309 Y y
NY5256 Promenade I Atlanta GA 30310 y Y
NY5258 Pittsford-Vic Pittsford NY 14535 N y
NY5260 Pittsford-Vic Pittsford NY 14536 N y
NY5262 Pittsford-Vic Pittsford NY 14536 N y
NY5264 Pittsford-Vic Pittsford NY 14537 N y
NY5266 0Clinton Str Binghamton NY 13905 y y
NY5273 eorge F. Hi Endwell NY 13760 y y
NY5276
NY5282 ast Alonqui Schaumburg IL 60196 N y
NY5300 Promenade I Atlanta GA 30310 y y
NY5302 Monroe Av Pittsford NY 14534 y y
NY5304 Clifton Stre Manchester NY 14504 n y
NY5308 48 Lyell Ave Rochester NY 14606 n y
NY5312
NY5314 rand Ave. 12 Kansas City MO 64112 y y
NY5316 Golden Ro Rochester NY 14624 y y
NY5318
NY5320
NY5324
NY5326 rand Ave, 12 Kansas City MO 64112 y y
NY5328 Pittsford-Vic Pittsford NY 14537 N y
NY5330 W. Comme East East Rochester NY 14445 y y
NY5334
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
NY5255 N
NY5256 N
NY5258 y consent/control
language
NY5260 y consent/control
language
NY5262 y consent/control
language
NY5264 y consent/control
language
NY5266 n affiliate
NY5273 n affiliate
NY5276
NY5282 y consent/control
language
NY5300 N
NY5302 n affiliate
NY5304 y consent/control
language
NY5308 y consent/control
language
NY5312
NY5314 N affiliate
NY5316 n affiliate
NY5318
NY5320
NY5324
NY5326 N affiliate
NY5328 y consent/control
language
NY5330 n affiliate
NY5334
</TABLE>
I-15
<PAGE> 160
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
NY5171 SOUTH U-171C-A2 Upstate Complete $1,500.00
SCHNECTADY NY
NY5175 TROY U-175B-AP Upstate Complete $1,667.00 6/18/98
NY
NY5179 HOOSICK U-179A-AP Upstate Complete $1,666.00 24-Mar-98
NY
NY5182 Hurschfield Road U-182A-AP Upstate Complete $1,500.00 5/4/98
NY
NY5188 ST. JOHNSVILLE U-188A-AP Upstate Complete $1,850.00 9/6/98
NY
NY5190 SHOEMAKER U-190A-PO Upstate Complete $1,236.00 01-Dec-97
NY
NY5204 ONEIDA U-204A-PQ Upstate Complete $1,545.00 01-Feb-98
NY
NY5208 ROME U-208E-AP Upstate Complete $2,400.00 15-Jan-98
NY
NY5210 STOCKBRIDGE U-210C-AP Upstate Complete $1,300.00 25-Nov-98
NY
NY5212 MANLIUS U-212C-AP Upstate Complete $2,400.00 15-Jan-98
NY
NY5214 BALDWINSVILLE U-214A-AP Upstate Complete $1,545.00 12-Dec-97
NY
NY5223 WHITE LAKE U-223D-A1 Upstate Complete $1,545.00 01-Dec-97
NY
NY5224 OOT PARK U-224D-PQ Upstate Complete $1,545.00 01-Dec-97
NY
NY5229 SYRACUSE U-229B-AP Upstate Complete $500.00 01-Mar-98
AIRPORT NY
NY5232 CICERO U-232A-AP Upstate Complete $1,545.00 01-Dec-97
NY
NY5235 WOODWARD U-235C-PS Upstate Complete $1,545.00 01-Dec-97
NY
NY5238 Highway 481 Cicero U-238A-AP Upstate Complete $1,545.00 01-Dec-97
NY
NY5244 WESTVALE U-244D-AP Upstate Complete $1,545.00 01-Mar-98
NY
NY5250 FAIRMONT U-250A-AP Upstate Complete $1042.00 25-May-98
NY
NY5251 JUNIUS U-251C-PQ Upstate Complete $1,545.00 01-Dec-98
NY
NY5252 PORT BYRON U-252C-PO Upstate Complete $1,545.00 01-Dec-97
NY
NY5254 JORDAN U-254A-AP Upstate Complete $1,978.00 01-Mar-98
NY
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5171 Colo y y Town of Rotterdam
NY5175 Colo y y Cellco Partnership
NY5179 Colo y y Cellco
Partnership/Loraine
Clifford Surdam
NY5182 Colo y y Contracts Sprint Spectrum
Manager
NY5188 Colo y y Contracts Sprint Spectrum
Manager
NY5190 Colo y y Robert 0 Bailey Frontier
NY5204 Colo y Robert 0 Bailey Upstate Cellular
NY5208 Colo y y Division Time Warner
President Entertainment-
dvance/Newhouse
Partnership
NY5210 Colo y y William J. Waffen Broarkdating
Warre
NY5212 Colo y y Division Time Warner
President Entertainment-
Advance/Newhouse
Partnership
NY5214 Colo y y Robert 0 Bailey Frontier
NY5223 Colo y y Lasalle Syracuse
NY5224 Colo y y Robert 0 Bailey Frontier
NY5229 Colo y y Contracts Sprint Spectrum
Manager
NY5232 y y Robert 0 Bailey Frontier
NY5235 Colo y y Robert 0 Bailey Frontier
NY5238 Colo y y Robert 0 Bailey Frontier
NY5244 Colo y y Upstate Cellular
NY5250 Colo y y Supervisor Town of Camillus
NY5251 Colo y y Robert 0 Bailey Frontier
NY5252 Colo y y Robert 0 Bailey Frontier
NY5254 Colo y y Upstate Cellular
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5171 0 Sunrise B Rotterdam NY 12306 y y
NY5175
NY5179 4013 NY 7 Hoosick Falls NY 12090 y y
NY5182 ain Street, Kansas City MO 64112 y y
NY5188 ain Street, 5 Kansas City MO 64112 y y
NY5190 Pittsford-Vic Pittsford NY 14534 N Y
NY5204 Pittsford-Vic Pittsford NY 14534 N y
NY5208 ampus Woo E Syracuse NY 13057 N y
NY5210 Genesee St Oneida NY 13421 y y
NY5212 ampuswoo East Syracuse NY 13057 n y
NY5214 Pittsford-Vic Pittsford NY 14534 N y
NY5223 5 Randell R Syracuse NY 13214 N Y
NY5224 Pittsford-Vic Pittsford NY 14534 N y
NY5229 nd Avenue, Kansas City MO 64112 y y
NY5232 Pittsford-Vic Pittsford NY 14534 N y
NY5235 Pittsford-Vic Pittsford NY 14534 N y
NY5238 Pittsford-Vic Pittsford NY 14534 N y
NY5244 0 Pittsford R Pittsford NY 14534 n y
NY5250 est Geness Syracuse NY 13219 y y
NY5251 Pittsford-Vic Pittsford NY 14534 N y
NY5252 Pittsford-Vic Pittsford NY 14534 N y
NY5254
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
NY5171 n Affiliate
NY5175
NY5179 n Affiliate
NY5182 N Affiliate
NY5188 n Affiliate
NY5190 y Consent/control
language
NY5204 y consent/control
language
NY5208 y Consent/ no control
language
NY5210 n affiliate
NY5212 y LL consent
NY5214 y consent/control
language
NY5223 N Notice
NY5224 Y consent/control
language
NY5229 n Affiliate
NY5232 y consent/control
language
NY5235 y consent/control
language
NY5238 y consent/control
language
NY5244 y Notice to LL, see
Sec. 25 MSA
NY5250 n affiliate
NY5251 y consent/control
language
NY5252 y consent/control
NY5254
</TABLE>
I-14
<PAGE> 161
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
NY5335 WEBSTER U-335C-P0 Upstate Complete $1,500 TBD
NY
NY5336 BROCKPORT U-3360-00 Upstate Complete $1,500 TBD
NY
NY5338 MACEDON U-3380-00 Upstate Complete $1,546 10/5/98
NY
NY5340 BRIGHTON U-340B-PS Upstate Complete $1,200 09-Mar-99
NY
NY5342 NEWARK U-3420-00 Upstate Complete $1,546 TBD
NY
NY5344 CANADAIGUA U-3440-00 Upstate Complete $1,500 10/1/98
NY
NY5350 GLEN HAVEN U-35DC-PS Upstate Complete $1,200 11-Mar-98
NY
NY5365 NORTH GATES U-365A-PS Upstate Complete $1,545 25-Feb-98
NY
NY5375 BARNARD U-375E-PS Upstate Complete $1,645 01-Dec-98
NY
NY5380 COLDWATER U-380B-PS Upstate Complete $1,545 25-Feb-98
NY
NY5390 SPENCERPORT U-390B-PQ Upstate Complete $1,700 15-Jan-98
NY
NY5400 LANCASTER U-400B-PS Upstate Complete $2,500 26-Nov-97
NY
NY5402 DEPEW U-402F-P0 Upstate Complete $1,500 05-Mar-98
NY
NY5404 ELMA U-404B-00 Upstate Complete $1,500 26-Jan-98
NY
NY5406 Orchard Park U-406E-PQ Upstate Complete $1,100 06-Feb-98
NY
NY5408 HAMBURG U-408D-PQ Upstate Complete $1,250 01-May-98
NY
NY5410 EDEN U-410J-00 Upstate Complete $1,545 01-May-98
NY
NY5416 FORKS U-416A-00 Upstate Complete $2,045 26-Feb-98
NY
NY5418 LACKAWANNA Upstate Complete $1,545 10/6/98
NY
NY5419 CHEEKTOWAGA U-419D-P0 Upstate Complete $1,997 01-Dec-97
NY
NY5434 PINE HILL U-4340-00 Upstate Complete $1,250 01-Apr-98
NY
NY5437 CLEVELAND U-437A-P0 Upstate Complete $1,800 12-Mar-98
HILL NY
NY5440 AMHERST U-4400-00 Upstate Complete $1,545 01-Apr-98
NY
NY5443 KENMORE U-443B-P0 Upstate Complete $2,000 24-Apr-98
NY
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5335 Colo y y James F. Bauman
NY5336 Colo y y Contract Sprint Spectrum
Management
NY5338 Colo Upstate Cellular
NY5340 Colo Y y Comp-Son Associate
NY5342 Colo Y y Robert 0 Bailey Frontier
NY5344 Colo Y y Contracts Sprint Spectrum
Manager
NY5350 Colo Y y R. Lindsay Sean Breeze & Vicinty
Water District
NY5375 Colo Upstate Cellular
NY5380 Colo Y y Upstate Cellular
NY5390 Colo y y Contract Sprint Spectrum
Management
NY5400 Colo Y y Joe Laraiso Buffalo Crushed Stone
NY5402 Colo y y Contract Sprint Spectrum
Management
NY5404 Colo y y Contract Sprint Spectrum
Management
NY5406 Colo Y y s. A. Moffow W.G. Arthur, Inc
NY5408 Colo Y y ite SBA Tower
Administration
NY5410 Colo Y y Upstate Cellular
NY5416 Colo Y y Upstate Cellular
NY5418 Colo y y Upstate Cellular
NY5419 Colo y y Buffalo Crushed Stone
NY5434 Colo y y ite SBA Tower
Administration
NY5437 Colo y y Erie County Water
NY5440 Colo y y Upstate Cellular
NY5443 Colo y y Village Clerk Village of Kenmor
<CAPTION>
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5335
NY5336 rand Ave, 12 Kansas City MO 64112 y y
NY5338
NY5340 d Chain Brid McLean VA 22101 y y
NY5342 Pittsford-Vic Pittsford NY 14537 N y
NY5344 nd Avenue, Kansas City MO 64112 y N
NY5350 O Seneca R Rochester NY 14622 y y
NY5365 ittsford-Vict Pittsford NY 14534 n y
NY5375
NY5380 ittsford-Vict Pittsford NY 14534 n y
NY5390 rand Ave, 12 Kansas City MO 64112 y y
NY5400 P.O.Box 71 Buffalo NY 14224 Y y
NY5402 rand Ave, 12 Kansas City MO 64112 y y
NY5404 rand Ave, 12 Kansas City MO 64112 y Y
NY5406 est Quaker Orchard Par NY 14127 y y
NY5408 Center Roa Boca Raton FL 14450 n y
NY5410 ittsford-Vict Pittsford NY 14534 n y
NY5416 ittsford-Vict Pittsford NY 14534 n y
NY5418 ittsford-Vict Pittsford NY 14534 n y
NY5419
NY5434 Center Roa Boca Raton FL 33486 n y
NY5437 Building, 2 Buffalo NY 14203 y y
NY5440 ittsford-Vict Pittsford NY 14534 n y
NY5443 Delaware A Kenmore NY 14217 n y
<CAPTION>
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
NY5335
NY5336 N affiliate
NY5338
NY5340 y affiliate
NY5342 y Consent/control
language
NY5344 Affiliate
NY5350 N Affiliate
NY5365 y Notice to LL, see
Sec. 25 MSA
NY5375
NY5380 y Notice to LL, see
Sec. 25 MSA
NY5390 N affiliate
NY5400 n affiliate
NY5402 N affiliate
NY5404 N affiliate
NY5406 n affiliate
NY5408 y LL consent under
MSA
NY5410 n Notice to LL, see
Sec. 25 MSA
NY5416 y Notice to LL, see
Sec. 25 MSA
NY5418 y Notice to LL. see
Sec. 25 MSA
NY5419
NY5434 y
LL consent under
MSA
NY5437 n affiliate
NY5440 y Notice to LL, see
Sec. 25 MSA
NY5443 n consent/controlling
language
</TABLE>
<PAGE> 162
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
NY5445 TONAWANDA U-445A-PS Upstate Complete $1,250.00 1-May-98
NY
NY5448 NORTH FOREST U-448A-P0 Upstate Complete $1,545.00 0-Jan-98
NY
NY5451 GRAND ISLAND U-4510-00 Upstate Complete $1,545.00 1-Dec-97
NY
NY5454 HOFFMAN U-454B-PS Upstate Complete $1,545.00 1-Jan-98
NY
NY5457 GRIFFON PARK U-457D-P0 Upstate Complete $1,545.00 3-Feb-98
NY
NY5463 SANBORN U-463C-P0 Upstate Complete $1,500.00 9-Apr-98
NY
NY5466 LEWISTON U-466A-00 Upstate Complete $1,545.00 1-May-98
NY
NY5468 Lockport U-4680-00 Upstate Complete $1,500.00 TBD
NY
NY5470 BRANT U-470A-P0 Upstate Complete $1,545.00 1-Dec-97
NY
NY5474 POMFRET U-474A-P0 Upstate Complete $1,236.00 4-Feb-98
NY
NY5476 WESTFIELD U-476A-P0 Upstate Complete $1,236.00 1-Dec-97
NY
NY5642 HASTING Complete
NY5660 GENESEO U-6600-00 Upstate Complete $1,500.00
NY
NY5662 MT.MORRIS U-6620-00 Upstate Complete $1,545.00
NY
NY5664 CONESUS U-6640-00 Upstate Complete $1,500.00
NY
NY5666 WAYLAND U-6660-00 Upstate Complete $ 350.00
NY
NY5668 COHOCTON U-6680-00 Upstate Complete $1,236.00
NY
NY5670 FRONTIER/AVOCA U-670A-00 Upstate Complete $1,236.00
NY
NY5672 SAVONA U-6720-00 Upstate Complete $1,500.00
NY
NY5674 CAMPBELL U-674A-00 Upstate Complete $1,236.00
NY
NY5676 CORNING U-676A-00 Upstate Complete $1,545.00
NY
NY5678 HORSEHEADS U-678A-00 Upstate Complete $1,236.00
NY
NY5680 COMFORT HILL U-6800-00 Upstate Complete $1,785.00
NY
NY5682 CAYUTA U-682A-00 Upstate Complete $1,236.00
NY
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5445 Colo Y y Ken Olsen FM Communcations
NY5448 Colo Y y Upstate Cellular
NY5451 Colo Y y Upstate Cellular
NY5454 Colo Y y Upstate Cellular
NY5457 Colo Y y Robert Bailey O Frontier
NY5463 Colo Upstate Cellular
NY5466 Colo Y y Upstate Cellular
NY5468 Colo Y y Diane Storey
NY5470 Colo y y Robert Bailey O Upstate Cellular
NY5474 Colo y y Robert Bailey O Upstate Cellular
NY5476 Colo y y Robert Bailey O Upstate Cellular
NY5642 Colo y y Hadwin C. Fuller
NY5660 Colo Y y Contracts Sprint Spectrum
Manager
NY5662 Colo Y y Contracts Sprint Spectrum
Manager
NY5664 Colo Y y Contracts Sprint Spectrum
Manager
NY5666 Colo Y y Larry Murphy
NY5668 Colo Y y Robert Bailey O Upstate Cellular
NY5670 Colo Y y Robert Bailey O Upstate Cellular
NY5672 Colo Y y ite SBA Tower
Administration
NY5674 Colo Y y Robert Bailey O Upstate Cellular
NY5676 Colo Y y Robert Bailey O Upstate Cellular
NY5678 Colo Upstate Cellular
NY5680 Colo y y Binghampton MSA
NY5682 Colo Y y Robert Bailey O Upstate Cellular
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCIAL LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5445 Colvin Boul Tonawanda NY 14150 y y
NY5448 Pittsford-Vict Buffalo NY 14203 n Y
NY5451 Pittsford-Vict Buffalo NY 14203 n y
NY5454 Pittsford-Vict Buffalo NY 14203 n y
NY5457 Pittsford-Vict Pittsford NY 14537 N y
NY5463
NY5466 Pittsford-Vict Buffalo NY 14203 n y
orth
NY5468 Robinson Tonawand NY 14120 n y
NY5470 Pittsford-Vict Pittsford NY 14537 N y
NY5474 Pittsford-Vict Pittsford NY 14537 N y
NY5476 Pittsford-Vict Pittsford NY 14537 N y
NY5642 1 Will Street Parish NY 13131 n y
NY5660 nd Avenue, Kansas City MO 64112 y y
NY5662 nd Avenue, Kansas City MO 64112 y y
NY5664 nd Avenue, Kansas City MO 64112 y y
NY5666 est Naples Wayland NY 14572 y y
NY5668 Pittsford-Vic Pittsford NY 14537 N Y
NY5670 Pittsford-Vic Pittsford NY 14537 N Y
NY5672 Center Roa Boca Raton FL 14450 n y
NY5674 Pittsford-Vic Pittsford NY 14537 N y
NY5676 Pittsford-Vic Pittsford NY 14537 N y
NY5678
NY5680
NY5682 Pittsford-Vic Pittsford NY 14537 N y
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
NY5445 n affiliate
NY5448 y Notice to LL, see
Sec. 25 MSA
NY5451 y Notice to LL, see
Sec. 25 MSA
NY5454 y Notice to LL, see
Sec. 25 MSA
NY5457 y consent/control
language
NY5463
NY5466 y Notice to LL, see
Sec. 25 MSA
NY5468 n
Notice
NY5470 Y consent/control
language
NY5474 y consent/control
language
NY5476 y consent/control
language
NY5642 y consent/control
language
NY5660 n
Affiliate
NY5662 n
Affiliate
NY5664 n
Affiliate
NY5666 n
affiliate
NY5668 Y consent/control
language
NY5670 Y consent/control
language
NY5672 n
LL consent under MSA
NY5674 y
consent/control
language
NY5676 y
consent/control
language
NY5678
NY5680
NY5682 y consent/control
language
</TABLE>
<PAGE> 163
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
NY5684 NEWFIELD U-684A-00 Upstate Complete $1,236.00
NY
NY5688 WAVERLY U-688A-00 Upstate Complete $1,611.00
NY
NY5690 NICHOLS U-6900-00 Upstate Complete $1,236.00
NY
NY5694 Ithaca U-6940-00 Upstate Complete $1,600.00
NY
NY5698 Candor U-6980-00 Upstate Complete $1,486.00
NY
NY5702 Dryden U-7020-00 Upstate Complete $1,686.00
NY
NY5712 SENECA HILL Upstate Complete
NY
NY5012 HIGH ROCKS U-012C-P0 Upstate Complete $625.00
NY
NY5014 SCHODACK U-014C-A1 Upstate Complete
NY
NY5020 LIVINGSTON U-020G-00 Upstate Complete
NY
NY5026 FLATBROOK U-026F-00 Upstate Complete $700.00
NY
NY5125B OLCOTT HILL Upstate Complete $600.00
NY
NY5177 RAYMERTON U-177B-AP Upstate Complete $700.00
NY
NY5230 HANCOCK U-2300-00 Upstate Complete $650.00 10/5/98
NY
NY5332 MENDON U-332A-00 Upstate Complete
NY
NY5130 ALBANY U-130H-AP Upstate Compiete $1,425.00 27-Jan-98
NY
NY5140 STATE OFFICE U-140C-AP Upstate Complete
NY
NY5141 SAND CREEK Upstate Complete $900.00 03-Sep-98
NY
NY5147 TROY SOUTH U-1470-00 Upstate Complete $1,300.00 9/23/98
NY
NY5165 SCHENECTADY U-165B-AP Upstate Complete 29-Jul-98
NY
NY5202 YORKVILLE U-202C-AP Upstate Complete $1,150.00 06-Mar-98
NY
NY5220 SYRACUSE U-220C-AP Upstate Complete $1,007.00 10-Mar-98
UNIVERSITY NY
NY5241 SYRACUSE U-241B-AP Upstate Complete $1,500.00 20-Oct-97
CANAL NY NY
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5684 Colo Y y Robert 0 Upstate
Bailey Cellular
NY5688 Colo Y y Robert 0 Upstate
Bailey Cellular
NY5690 Colo Y y Robert 0 Frontier
Bailey
NY5694 Colo Y y Harold A. Tower Talk
Fish, Jr of Ithica
NY5698 Colo Y y Robert 0 Upstate
Bailey Cellular
NY5702 Colo Y y Robert 0 Upstate
Bailey Cellular
NY5712 RI y y Katherine
Ketcham
NY5012 RL Y y Paul & Pat
Schiller
NY5014 RL Y y James Keegan
NY5020 RL Y y Gerald &
Regina Feffone
NY5026 RL Y y Margaret Pixley
NY5125B RL y y Mary F. Tobin
NY5177 RL Y y William & Carol
Chamberlin
NY5230 RL Y y Carlton 3717
Thomas Corporation
NY5332 RL Y y Ralph & Vera
Keyes
NY5130 TI Y y Thomas Empire Site
Butler Co., Inc.
NY5140 TI Y y Deputy NY General
Commissioner Services
NY5141 TI Y y Nathan Picotte
Laokiewic Companies
NY5147 TI Y y D. Wallace Bruce D. Wallace Bruce
NY5165 TI y Annie Schaffer
Senior Center
of Schenectady
County, Inc.
NY5202 TI Y y Empire Site Co.
NY5220 TI y Syracuse
Senior
Citizen's
Project, c/o
Syracuse
Mgmt., Inc.
NY5241 TI Y y at Bright, Dunk & Bright
President Furniture
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NY5684 Pittsford-Vic Pittsford NY 14537 N y
NY5688 Pittsford-Vic Pittsford NY 14537 N y
NY5690 Pittsford-Vic Pittsford NY 14537 N y
NY5694 South Auror Ithaca NY 14850 N y
NY5698 Pittsford-Vic Pittsford NY 14537 N y
NY5702 Pittsford-Vic Pittsford NY 14537 N Y
NY5712 - 36 Lane Oswego NY 13126 y y
Dri
NY5012 R1, Box 14 Hannacroix NY 12087 y y
NY5014 P.O. 426 Kinderhook NY 12106 n y
NY5020 P.O. box 18 Old NY 12136 n y
Chatham
NY5026 Dean Hill R Canaan NY 12029 n y
NY5125B Elmhurst Av Rensselaer NY 12144 n y
NY5177 LeLoup Ro Melrose NY 12121 n y
NY5230 P.0. Box 286 Syracuse NY 13220 n y
NY5332
NY5130 1 Delaware Delaware NY 12054 Y Y
NY5140 r Bldg, Albany NY 12242 Y Y
Ernpi
NY5141 porate Woo Albany NY 12211 Y Y
NY5147 7 River Stre Troy NY 12180 Y Y
NY5165 1 Nott Terra Schenectady NY 12308 y y
NY5202 Delaware Av Delmar NY 12054 y y
NY5220 ton Village L Rochester NY 10649 y y
NY5241 S. Salina S Syracuse NY 13205 y y
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
NY5684 y consent/control
language
NY5688 y consent/control
language
NY5690 y consent/control
language
NY5694 y consent/no
control
NY5698 y consent/control
language
NY5702 Y consent/control
language
NY5712 n notice
NY5012 n Affiliate
NY5014 n Notice
NY5020 n Notice
NY5026 n Notice
NY5125B n Notice
NY5177 y Notice
NY5230 y consent/control
language
NY5332
NY5130 N Affiliate
NY5140 N Affiliate
NY5141 N Affiliate
NY5147 N Affiliate
NY5165 n affiliate
NY5202 n affiliate
NY5220 n Affiliate
NY5241 n Affiliate
</TABLE>
<PAGE> 164
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
SITE ID NEXTEL'S LEASE COLO/RAW LAND/ LEASE COPY COPY
PROJECT PROJECT NAME (WITH MARKET SITE LEASE COMMENCEMENT TENANT PAYMENTS OF LEASE SENT TO CONTACT
CODE (SITE NAME) PREFIX) NAME LEASED RATE DATE IMPROVEMENT STARTED(Y/N) CREATED(Y/N) PARTNER(Y/N) PERSON
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NY5279 JOHNSON U-279A-PQ Upstate Complete $ 500.00 28-Nov-97 TI Y y
CITY NY
NY5347 BRIGHTON U-347E-PS Upstate Complete $1,000.00 23-Feb-98 TI Y y Frank
NORTH NY Perticone
NY5353 ROCHESTER U-353A-PS Upstate Complete $1,250.00 01-Jul-98 TI Y y
NORTH NY
NY5355 LINCOLN U-355E-PS Upstate Complete $1,031.00 23-Feb-98 TI y y Clayton
PARK NY Cleon
NY5360 DOWNTOWN U-360G-PS Upstate Complete $1,500.00 24-Nov-97 TI y y ew A.
NY Costanza
NY5370 UPTONVILLE U-370A-PS Upstate Complete $1,052.00 23-Feb-98 TI y y Clayton
NY Cloa
NY5385 MOUNT READ U-385D-PQ Upstate Complete $1,000.00 01-May-98 TI y y
NY
NY5413 WILLIAMS- U-413C-PO Upstate Complete $2,500.00 30-Jan-98 TI y y Elizabeth
VILLE NY Johnson
NY5425 BUFFALO U-425F-PS Upstate Complete $1,500.00 29-Dec-97 TI y y Dimitri J.
PARK NY Tzetzo
NY5428 BUFFALO U-428I-00 Upstate Complete $2,500.00 28-Feb-98 TI y y
NY
NY5431 Buffalo U-431B-PO Upstate Complete $ 700.00 19-Nov-97 TI y y Lawrence J.
NY Dugg
NY5460 NIAGARA U-460A-00 Upstate Complete $1,500.00 09-Feb-98 TI y y udy
FALLS NY Bugenhage
NY5658 AVON U-6580-00 Upstate Complete $1,125.00 WT y y Town
NY Supervisor
NY5714 OSWEGO Upstate Complete WT y y Eli
NY Rapaport
NY5148 Mountain U-1480-00 Upstate Complete y Network
View NY Real Estate
NY5185 BIG NOSE Upstate Complete y y
NY
NY5242 SYRACUSE/ Upstate Complete
HWY 690 NY
NY5422 BUFFALO Upstate Complete y y Brian W.
EAST NY Maher
NY5446 NORTH Upstate Complete y y Mayor's
TONAWANDA NY Office
157 147
<CAPTION>
LEASE INFORMATION
FINANCING LANDLORD
LEASE LANGUAGE CONSENT CONSENT
PROJECT ASSIGNABLE PRESENT REQUIRED OBTAINED RETURN
CODE LANDLORD ADDRESS CITY STATE ZIP CODE (Y/N) (Y/N) (Y/N) (Y/N) RECEIPT COMMENTS
<C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
NY5279 Mack & Carol Travis 3 Tioga Str Ithaca NY 14850 y y n affiliate
NY5347 565 Blossom Road Blossom R Rochester NY 14610 y y n affiliate
NY5353 Davis Warehouse 5 Clifford Ay Rochester NY 14621 y y n affiliate
NY5355 Plymouth orton Rochester NY 14609 y y N affiliate
Gardens, Inc. Villag
NY5360 Temple Building Franklin Str Rochester NY 14604 y y n affiliate
Associates
NY5370 Seneca Towers. orton Rochester NY 14609 n y y consent/
Inc. Villag control
language
NY5385 North Greece 66 Latta Ro Greece NY 14612 n y n consent/
Fire District control
language
NY5413 Williamsville Towers 54 Main Str Williamsville NY 14221 y y n affiliate
Condominium
NY5425 Cathedral Park Franklin Str Buffalo NY 14202 y y n affiliate
Tower
NY5428 Bison Storage & 2 Niagra Str Buffalo NY 14213 y y n affiliate
Warehouse
NY5431 Bison Storage & 3 Niagra Str Buffalo NY 14214 y y n affiliate
Warehouse
NY5460 Niagra Towers Cedar Ave Niagra Falls NY 14301 y y n affiliate
Company
NY5658 Town of Avon enessee St Avon NY 14414 y y n affiliate
NY5714 City of Oswego City Hall Oswego NY 13126 n y y consent/
control
language
NY5148 Cellco Partnership Washington Bedminster NJ 07921 y y n Affiliate
c/o Bell
Atlantic Mobile
NY5185 Joseph & Laurette 8 Caswell R Palantine NY 13428 N y N Notice
Hertig Bridg
NY5242
NY5422 Leo H. Ward, Inc. Washington Buffalo NY 14203 n y n consent/
controlling
language
NY5446 City of Tonawanda Payne Ave orth NY y y n notice
Tonawand
71 139
</TABLE>
I-19
<PAGE> 165
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
SITE ID NEXTEL'S LEASE COLO/RAW LAND/ LEASE COPY COPY
PROJECT PROJECT NAME (WITH MARKET SITE LEASE COMMENCEMENT TENANT PAYMENTS OF LEASE SENT TO
CODE (SITE NAME) PREFIX) NAME LEASED RATE DATE IMPROVEMENT STARTED(Y/N) CREATED(Y/N) PARTNER(Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AL1801 Neely Southeast Complete $ 1,300 12/1/97 Colo Y Y Y
AL1802 Mobile Southeast Complete $ 1,500 12/5/97 Colo Y Y
Airport
AL1815 Spanish Southeast Complete $ 1,125 11/24/97 Colo Y Y Y
Fort
AL1816 Loxley Southeast Complete $ 1,385 6/15/98 Colo Y Y
AL1817 Styx River Southeast Complete $ 1,000 3/1/98 Colo Y Y Y
AL1818 Taylor Southeast Complete $ 1,000 3/1/98 Colo Y Y Y
Camp
AL8000 Prichard - A-8000-C Blanket Complete $ 1,250 $35,754.00 Colo Y Y
AL8029 Evergreen A-8029-A Blanket Complete $ 1,000 4/15/98 Colo Y Y
AL8033 Kaiser A-8033-A Blanket Complete $ 550 3/15/98 Colo Y Y
AL8200 Rocky Mou A-8300-D Blanket Complete Colo Y Y
FL7254 Beulah Southeast Complete $ 1,385 5/20/98 Colo Y Y
MS8001 Gulf Port - M-8001-A Blanket Complete $ 500 11/5/97 Colo Y Y Y
MS8030 Escatawpa- M-8030-A Blanket Complete $ 1,500 5/1/98 Colo Y Y Y
MS8033 Biloxi-Pin M-8033-D Blanket Complete $ 1,500 11/20/97 Colo Y Y Y
AL8031 Wallace A-8031-A Blanket Complete $ 1,000 2/1/99 Colo Y Y
FL7250 Brownsville Southeast Complete $ 1,338 1/1/98 Colo Y Y Y
FL7251 Ensely Southeast Complete $ 1,445 1/1/98 Colo Y Y Y
MS8003 Spring Bra M-8003-D Blanket Complete $ 1,500 Colo Y Y
AL8021 Pearson A-8021-C Blanket Complete $ 500 3/15/98 RL Y Y
AL8027 Georgiana- A-8027-B Blanket Complete $ 600 1/15/98 RL Y Y
AL8201 Laney A-8201-A Blanket Complete $ 500 C or RL Y Y
6/30/99
AL8205 Dutton A-8205-B Blanket Complete $ 500 7/9/99 RL Y Y
AL8208 Green A-8208-H Blanket Complete $ 750 8/2/99 RL Y Y
AL8210 Simmons A-8210-A Blanket Complete $ 600 8/17/99 RL Y Y
<CAPTION>
LEASE INFORMATION
FINANCING LANDLORD RETURN
LEASE LANGUAGE CONSENT CONSENT RECEIPT
PROJECT CONTACT ZIP ASSIGNABLE PRESENT REQUIRED OBTAINED RECEIVED
CODE PERSON LANDLORD ADDRESS CITY STATE CODE (Y/N) (Y/N) (Y/N) (Y/N) (Y/N) COMMENTS
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AL1801 Motorola, Inc. Land 1301 E. Schaumburg IL 60196 N Y Y consent/
Mobile Produc Algonquin Rd control
language
AL1802 Mgr. Of System rime Co 6 Campus Westlake TX 76262 Y Y N affiliate
Development Personal Circle
Communicatio
AL1815 Bernie Marlin 1551 Mobile AL 36604 N Y Y consent/
Dittman Investments, Springhill control
Inc. Ave language
AL1816 Clear Channel WPMI TV Mobile AL 36609 N Y Y consent/
Television 661 Azalea Rd control
language
AL1817 Mary Jane 18767 Loxley AL 36551 N Y Y consent/
Hemphill Hemphill control
Farm Rd language
Clear Channel WPMI TV 661 Mobile AL 36609 N Y Y consent/
Television Azalea Rd control
language
AL8000 Lease Gulf States 549 Ringling Sarasota FL 34236 Y Y N affiliate
Administration System/ 3rd Fl
Pinnacle
Blvd.,
AL8029 James & 450 Wilmer AL 36587 N Y Y consent/
Eillen Stateline Rd control
Fincher language
AL8033 Doug & Barb 3139 Ewine Dr Atmore AL 36502 N Y N notice
Kaiser
AL8200 Winston 3069 Mobile Montgo AL 36108 N Y N notice
Boulwave Highway mery
FL7254 Manager, AT&T Corp. Promenade II Atlanta GA 30309 Y Y N notice
Real Estate
MS8001 WJZD, Inc. PO Box 6216 Gulfport MS 39507 N Y Y consent/
control
language
MS8030 Lease Gulf States 549 Ringling Sarasota FL 34236 Y Y N affiliate
Administra System/Pinnacle Blvd., 3rd Fl
tion
MS8033 Lease Gulf States 549 Ringling Sarasota FL 34236 Y Y N affiliate
Administra System/Pinnacle Blvd., 3rd Fl
tion
AL8031 James Fincher 450 Stateline Wilmer AL 36587 N Y N consent/
Road control
language
FL7250 Lease Pinnacle 549 Ringling Sarasota FL 34236 N Y Y consent/
Administra Towers, Inc. Blvd., 3rd Fl control
tion language
FL7251 Lease Pinnacle 549 Ringling Sarasota FL 34236 N Y Y consent/
Administra Towers, Inc. Blvd., 3rd Fl control
tion language
MS8003 Raymond & 2131 Bay St MS 39520 N Y N notice
Loretta Hollywood Louis
Heitzmonn Drive
AL8021 K. Pearson, 2503 Country Pratt- AL 36069 N Y N notice
M. England, et al. Road 59 ville
AL8027 Conely Ray Route 1 Georgi AL 36033 N Y N notice
Lowe Box 13 ana
AL8201 Donley Laney 2737 Sumter Montgo- AL 36109 N Y N notice
Ave mery
AL8205 Enoch & Maggie 1360 Montgo- AL 36110 N Y N notice
Dutton Anderson mery
Road
AL8208 Green Thumb 4211 Troy Montgo- AL 36116 N Y N notice
Nursery Highway mery
AL8210 John B. 4444 Norman Montgo- AL 36105 N Y N notice
Simmons Jr. Bridge Rd mery
</TABLE>
I-20
<PAGE> 166
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
PROJECT PROJECT NAME SITE ID NEXTEL'S SITE LEASE LEASE COLO/RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT
CODE (SITE NAME) (WITH MARKET LEASED RATE COMMENCEMENT TENANT STARTED (Y/N) CREATED (Y/N) TO PARTNER
PREFIX) NAME DATE IMPROVEMENT (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AL8210 Simmons A-8210-A Blanket Complete $600 8/17/99 RL Y Y
AL8211 Fordham A-8211-A Blanket Complete RL Y Y
AL8212 Wetumpka A-8212-D Blanket Complete $550 7/10/98 RL Y Y
AL8214 Boykin A-8214-E Blanket Complete $800 C or RL Y Y
10/10/99
AL8042 Creola A-8042-B Blanket Complete $500 10/1/98 RL Y Y
AL8206 Montgomery E Southeast Complete 1/27/98 RL Y
AL8207 Greenwood Southeast Complete not RL Y
commenced
AL8209 Cloverland Southeast Complete not RL Y
commenced
AL8024 Fort Deposi A-8024-C Blanket Complete RL Y Y
AL8023 Letohatche A-8023-B Blanket Complete RL Y Y
AL1803 Prichard Southeast Complete 10/1/98 TBD Y Y
34 34
<CAPTION>
LEASE INFORMATION
PROJECT CONTACT LANDLORD ADDRESS CITY STATE ZIP CODE LEASE FINANCING LANDLORD CONSENT RETURN RECEIPT COMMENTS
CODE PERSON ASSIGNABLE LANGUAGE CONSENT OBTAINED RECEIVED
(Y/N) PRESENT REQUIRED (Y/N) (Y/N)
(Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
AL8210 John D. 4444 Montgo AL 36105 N Y N notice
Simmons Jr. Norman mery
Bridge Rd
AL8211 Danny & 8407 Montgo AL 36117 N Y N notice
Claire Shaffer mery
Fordham Ridge Ct
AL8212 Ed & Will 101 Wetumpka AL 36092 Y Y N notice
Landrum Camelia
Drive
AL8214 Raymond & 1754 Montgo AL 36106 Y Y N notice
Shay Boykin Carin mery
brook
Dr
AL8042 Kenneth W. 627 Dead Creola AL 36525 Y Y N notice
Walker Lake Road
AL8206 GHM #405 Montgo AL 36123 N Y Y consent/no
Investments, Eastern mery control
LLC Bypass language
AL8207 Color 1616 Mt. Montgo AL 36107 N Y N notice
Systems Meigs mery
South Road
AL8209 Joseph & 3507 Montgo AL 36110 N Y N notice
Neva Fernway mery
Robinson Drive
AL8024 Sam & Rte 1 Hwy Fort AL 36032 Y Y N notice
Margaret 185, Box Deposit
Ryals 146
AL8023 Watkins 1100 Montgo AL 36104 Y Y N notice
Johnson Chandler mery
St.
AL1803 Larry 4041 Loft Mobile AL 36613 N Y N notice
Sellars Road
et al. 10 34
</TABLE>
I-21
<PAGE> 167
<TABLE>
<CAPTION>
Nextel Site ID Information Lease Information
Lease
Project Project Name Site ID Nextel's Market Commencement
Costs (Site Name) (with prefix) Name Site Leased Lease Rate Date
<S> <C> <C> <C> <C> <C> <C>
LA0089 Greenwood, LA LA-0089B TEXAS Complete $ 700.00 1-Dec-98
LA8034 Lake Charles - Water L-8034-F Blanket Complete
Tank
LA8110 Cranford L-8110-A Blanket Complete $ 600.00 C or 11/1/98
LA8111 Arcadia L-8111-D Blanket Complete
MS8017 Gallman M-8017-A Blanket Complete $1,000.00 C or 10/1/98
MS8018 Hazelhurst M-8018-A Blanket Complete $1,000.00 C or 10/1/98
TX0136 Carl's Corner TX-0136A TEXAS Complete $2,080.00 1-Dec-97
TX0140 Bellmead TX-0140B TEXAS Complete $1,490.00 1-Nov-97
TX0142 Grandview TX-0142A TEXAS Complete $2,093.00 1-Dec-97
TX1353 Hamshire TX-1353B TEXAS Complete $2,183.00 1-Jan-98
TX1355 Beaumont TX-1355A TEXAS Complete $2,258.01 9-Sep-97
TX2953 Belton TX-2953C TEXAS Complete $1,720.00 1-Nov-97
TX2956 Bruceville TX-2956C TEXAS Complete $3,113.00 1-Dec-97
LA0091 La Rosen, LA LA-0091B TEXAS Complete $ 850.00 1997
LA8113 Dixie Inn L-8113-B Blanket Complete $ 600.00 10/1/98
TX0053 Sulphur Springs TX-0053A TEXAS Complete $ 500.00 1-Dec-97
TX0054 Weaver TX-0054A TEXAS Complete $ 350.00 1-Dec-97
TX0060 Argo TX-0060A TEXAS Complete $ 200.00 1997
TX0065 Boston TX-0065A TEXAS Complete $ 450.00 1-Dec-98
TX0066 Red River Army TX-0066A TEXAS Complete $ 200.00 1997
Depot
TX0075 Mount Sylvan TX-0075A TEXAS Complete $ 450.00 1-Dec-98
TX0079 Owentown TX-0079B TEXAS Complete $ 600.00 1-Dec-98
</TABLE>
<TABLE>
<CAPTION>
Lease Information
Project Colo / Raw Land Lease Payments Copy of Lease Copy Sent to Partner
Costs Tenant Improvement Started (Y/N) Created (Y/N) (Y/N) Contact Person Landlord
<S> <C> <C> <C> <C> <C> <C>
LA0089 Colo Y Y Y Exec. American Rose
Direct. Society
LA8034 Colo Y Y Y h Calcasieu Parish
Administr Policy Jury
LA8110 Colo Y Y George Michael
Cranford
LA8111 Colo Y Y Gantt Robert Eardie
Danc Dance & Florrie
Gantt Dance
MS8017 Colo Y Y Jack (Bo) Haley
MS8018 Colo Y Y Jack (Bo) Ha1ey
TX0136 Colo Y Y Y ATC Tower
Corporation
TX0140 Colo Y Y Y ATC Tower
Corporation
TX0142 Colo Y Y Y ATC Tower
Corporation
TX1353 Colo Y Y Y ATC Tower
Corporation
TX1355 Colo Y Y Y ATC Tower
Corporation
TX2953 Colo Y Y Y ATC Tower
Corporation
TX2956 Colo Y Y Y ATC Tower
Corporation
LA0091 RL Y Y Y Crow Shreveport
Partnership
LA8113 RL Y Y Mr. & Mrs. Albert
Gordon
TX0053 RL Y Y Y Welton Wayne &
CJ Dykes
TX0054 RL Y Y Y JR & Juanita
Adam
TX0060 RL Y Y Y Jack & Lana
Morton
TX0065 RL Y Y Y Sarah Jo Garett
TX0066 RL Y Y Y Jimmy Ballard
TX0075 RL Y Y Y Tammie
Luckenbill
TX0079 RL Y Y Y Betty Dozier
Weaver
</TABLE>
<TABLE>
<CAPTION>
Lease Information
Financing
Project Lease Language Landlord Consent Consent
Costs Address City State Zip Code Assignable Present Required (Y/N) Obtained (Y/N)
(Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
LA0089 P.O. Box Shreveport LA 71130 N Y N
30000
LA8034 P.O. Drawer Lake Charles LA 70602 Y Y N
328
LA8110 502 Columbia MO 65203 N Y N
Highland
Ave
LA8111 Box 1406 Arcadia LA N Y N
MS8017 101 Childre Pearl MS 39208 N Y Y
Rd
MS8018 102 Childre Pearl MS 39209 N Y Y
Rd
TX0136 Richmond Houston TX 77046 N Y Y
Ave., S
TX0140 Richmond Houston TX 77046 N Y Y
Ave., S
TX0142 Richmond Houston TX 77046 N Y Y
Ave., S
TX1353 Richmond Houston TX 77046 N Y Y
Ave., S
TX1355 Richmond Houston TX 77046 N Y Y
Ave., S
TX2953 Richmond Houston TX 77046 N Y Y
Ave., S
TX2956 ell Crow Ctr Dallas TX 70506 Y Y N
200
LA0091 0628 Minden LA 71055 Y Y N
Highway 8
LA8113 Route 1 Box Brashears TX 75420 Y Y N
25
TX0053 2610 Mesquite TX 75150 Y Y N
Eastbrook
TX0054 Rt 2 Box Omaha TX 75571 Y Y N
179
TX0060 125 New Boston TX 75570 Y Y N
Shumaker
TX0065 08 Garden Hooks TX 75561 Y Y N
Road
TX0066 18636 CR Lindale TX 75771 Y Y N
437
TX0075 6220 US Tyler TX 75708 Y Y N
Hwy 27
TX0079
</TABLE>
<TABLE>
<CAPTION>
Lease Information
Project Return Receipt
Costs Received Comments
(Y/N)
<S> <C> <C>
LA0089 notice
LA8034 notice
LA8110 notice
LA8111 notice
MS8017 #2
MS8018 #2
TX0136 consent/control
language
TX0140 consent/control
language
TX0142 consent/control
language
TX1353 consent/control
language
TX1355 consent/control
language
TX2953
TX2956 consent/control
language
LA0091 notice
LA8113 notice
TX0053 notice
TX0054
TX0060
TX0065
TX0066
TX0075
TX0079
</TABLE>
I-22
<PAGE> 168
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
TX0083 Kilgore TX-0083A TEXAS Complete $ 600.00 12/1/98
TX0086 Longview TX-0086A TEXAS Complete $ 600.00 12/1/98
TX0087 SW Marshall TX-0087A TEXAS Complete $ 600.00 1-Dec-98
TX0088 Crossroads TX-0088A TEXAS Complete $ 700.00 1-Dec-98
LA0090 Shreveport LA-0090A TEXAS Complete $2,000.00 1997
27
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C>
RL Y Y Y Kenneth, Delma
& Tony Clemens
RL Y Y Y Mary Rogers
Stevens
RL Y Y Y Kim R. Smith
Logging, Inc.
RL Y Y Y Andrew Brune &
(James Burnet)
TI Y Y Y John Commercial
Hughes National Bank in
Shreveport
27
</TABLE>
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
RR 3 Box 77 Gladewater TX 75647 Y Y N
Rte 1 Box Longview TX 75602 Y Y N
587
Rte 2 Box Tatum TX 75691 Y Y N
457
Box 635 arshall TX 670 (7565 Y Y N
(111 N P (Jefferso
Texas Street Shreveport LA 71101 N Y N
Ste.
14 26
</TABLE>
<TABLE>
<S> <C>
consent/control
language
</TABLE>
I-23
<PAGE> 169
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
ID5009 Hagerman ID5009 No CA/Rocky Complete $ 128 5/1/98
Mnt
ID5022 Nampa ID5022 No CA/Rocky Complete $ 725 7/1/98
Mnt
ID5027 Burley ID5027 No CA/Rocky Complete $ 333 11/30/98
Mnt
ID5028 Hazelton But ID5028 No CA/Rocky Complete $ 400 10/31/98
Mnt
ID5006 Blacks Creek ID5006 No CA/Rocky Complete $ 500 4/28/98
Mnt
ID5007 Mnt Home ID5007 No CA/Rocky Complete $ 500 3/18/98
Mnt
ID5023 Cindercone ID5023 No CA/Rocky Complete $ 500 4/28/98
Mnt
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT STARTED (Y/N) CREATED (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C>
ID5009 RL Y Y Y US Department of the
Interior
ID5022 RL Y Y Thomas E. Adzem, LC
Zemicka
ID5027 RL N Y Y Van & Cathy Greenweld
ID5028 RL N Y Y Mecham, Inc.
ID5006 Colo Y Y Y Western PCS II Corp
ID5007 Colo Y Y Y Jon Zumsteg WesternPCS II Corp
ID5023 Colo Y Western PCS II Corp
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
ID5009 Jarbridge Twin Falls ID 83301 N N
Resource Area
ID5022 4863 Lakemon Boise ID 83703 Y Y
Place
ID5027 Rte 2 Box 223 Paul ID 83347 N Y
ID5028 PO Box 267 Hazelton ID 83335 N Y
ID5006 01 N.W. Issaquah W 98027 N N
Sammanish A
Suite 1
ID5007 02 N.W. Issaquah W 98028 N N
Sammanish A
Suite 1
ID5023
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
ID5009 Y consent/control
language
ID5022 N affiliate
ID5027 Y
ID5028 Y consent/control
language
ID5006 Y consent/control
language
ID5007 Y consent/control
language
ID5023
</TABLE>
<PAGE> 170
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
PA4209 Mckean/Crown P-4209-01 Great Lakes Complete
PA4211 Edinboro/S P-4211-11 Great Lakes Complete
Crown
PA4213 I79PAPA-6 P-4213-21 Great Lakes Complete
PA4224 Albion/Crown P-4224-06 Great Lakes Complete
PA4202 Erie P-4202-0A Great Lakes Complete $1,100 1/1/98
Central_S/W
T
PA4204 Erie East P-4204-0B Great Lakes Complete
PA4206 Erie West P-4206-0E Great Lakes Complete $ 900 6/30/99
PA4208 Erie P-4208-00 Great Lakes Complete
South_I90
PA4214 Union/Crown P-4214-22 Great Lakes Complete
PA4215 Hadley/Crown P-4215-27 Great Lakes Complete
PA4218 V46929 P-4218-30 Great Lakes Complete $ 600 6/22/98
PA4316 Fannettsburg P-0316-00 Great Lakes Complete $ 500 12/31/99
V12565
PA4201 Erie Central P-4201-0B Great Lakes Complete $ 995 6/30/99
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
PA4209 Colo Y Y Robert A. Crown
Crown Communications
PA4211 Colo Y Y Crown
Communications
PA4213 Colo Y Y Robert A. Crown
Crown Communications
PA4224 Colo Y Y Robert A. Crown
Crown Communications
PA4202 RL Y Y Chief Radio City of Erie
Engineer
PA4204 RL Y r. Site GTE Wireles
Development Inc. Inc.
& Real
PA4206 RL Y Y Richard B.
Cross
PA4208 RL Y r. Site GTE Wireles
Development Inc. Center
& Real
PA4214 RL Y Y Robert A. Crown
Crown Communicatio
ns
PA4215 RL Y Y Robert A. Crown
Crown Communicatio
ns
PA4218 RL Y Y Paul &
Madeline
Smith
PA4316 RL Y Y Homer &
Bonnie
Johnson
PA4201 TI Y Y Thomas Renaissance
Kennedy Center Ltd.
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
PA4209 Center West Pittsburgh PA 15276 N Y
III,S
PA4211
PA4213 Center West Pittsburgh PA 15276 N Y
III, S
PA4224 Center West Pittsburgh PA 15276 N Y
III, S
PA4202 1926 Erie PA 16503 Y Y
Holland St.
PA4204 Perimeter Atlanta GA 44128 N Y
Center
PA4206 P.O Box Erie PA 16503 Y Y
1959
PA4208 Perimeter Atlanta GA 44128 N Y
Center
PA4214 Center West Pittsburgh PA 15276 N Y
III, S
PA4215 Center West Pittsburgh PA 15276 N Y
III, S
PA4218 8079 Smith North East PA 16428 N Y
Road
PA4316 083 Spring PA 17262 Y Y
Timmons Road Run
PA4201 400 French Erie PA 16507 Y Y
Street
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
PA4209 N consent/no control language/net
worth under MSA
PA4211
PA4213 N consent/no control language/net
worth under MSA
PA4224 N consent/no control language/net
worth under MSA
PA4202 N affiliate
PA4204 Y consent/control language
PA4206 N affiliate
PA4208 Y consent/control language
PA4214 N consent/no control language/net
worth under MSA
PA4215 N consent/no control language/net
worth under MSA
PA4218 N consent/controlling language
PA4316 N affiliate
PA4201 N affiliate
</TABLE>
I-25
<PAGE> 171
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
KY5111 Brown K-5111-C Blanket Complete $ 600.00 7/27/99
KY5116 Simpsonville K-5116-A Blanket Complete $1,500.00 6/2/98
KY5120 La Grange K-5120-A Blanket Complete
KY5125 Worthington K-5125-D Blanket Complete $1,000.00 6/1/99
Crown
KY5126 Glenarm K-5126-A Blanket Complete $1,500.00 4/1/98 proj
TN1002 Bristol TN1002 Mid South Complete $1,000.00 6/1/95
N1002-G Bristol TN1002 Mid South Complete $1,000.00 6/1/95
IN5001 Murphy I-5001-A Blanket Complete $ 500.00 11/1/98
IN5003 Salkeld I-5003-A Blanket Complete $ 300.00 10/24/98
KY5004 Three Spring- K-5004-C Blanket Complete $ 700.00 BP
Knight
KY5005 Munfordville K-5005-B Blanket Complete $ 400.00 C/BP/4-1-98
Guy Templeman
KY5008 Bowling G - K-5008-E Blanket Complete $ 600.00 C or BP
Sleen (Extended
FAA Study)
KY5009 Hillsdale - K-5009-A Blanket Complete $ 700.00 BP
Kirby (12/31/97)
KY5100 Anderson K-5100-E Blanket Complete $ 600.00 12/3/98
KY5101 Davis K-5101-D Blanket Complete $ 400.00 6/30/99
KY5106 Gabbard K-5106-D Blanket Complete $ 600.00 7/9/98
KY5109 Kidd K-5109-B Blanket Complete $ 500.00 12/20/98
KY5110 R. Anderson K-5110-C Blanket Complete $ 600.00 9/3/99
KY5113 Hurstland Farm K-5113-E Blanket Complete $ 600.00 7/20/99
KY5114 Frankfort/Boyd K-5114-B Blanket Complete $ 700.00 2/2/99
KY5122 Wilhoite K-5122-A Blanket Complete $ 600.00 7/26/98
KY5123 Archey (RF) K-5123-A Blanket Complete $ 600.00 C or 10/10/98
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT CREATED (Y/N)
<S> <C> <C> <C> <C> <C> <C>
KY5111 Colo Y 6-Jan Stacey &
Verna Brown
KY5116 Colo Y 6-Jan Dr. Thomas A.
Courtenay
KY5120 Colo Y 6-Jan Develop GTE Wireless
KY5125 Colo Y 6-Jan act Sprint
Manag Spectrum L.P.
KY5126 Colo Y Y Develop GTE Wireless
TN1002 Colo Y Y Y Billy WEO Tower,
Orgel Inc.
N1002-G Colo Y Y Y Clarice Senior
IN5001 RL Y Y Tex & Cora
Murphy
IN5003 RL Y Y Jo Ellen
Salbeld
KY5004 RL Y 6-Jan Johnie & Lois
Ann Knight
KY5005 RL Y 6-Jan Guy
Templeman
KY5008 RL Y 6-Jan Steen & Steen
KY5009 RY Y 6-Jan Donald M.&
Louisa S.
Kirby
KY5100 RL Y 6-Jan Ken & Linda
Anderson
KY5101 RL Y 6-Jan Everette &
Zolla Dvis
KY5106 RL Y 6-Jan hael Ethel Gabbard
Sand
KY5109 RL Y 6-Jan James & Ruby
Kidd
KY5110 RL Y 6-Jan ond And R. Anderson
KY5113 RL Y 6-Jan ed Hurstland
Nuckols Farm, Inc.
KY5114 RL Y 6-Jan Gwyn &
James Boyd
KY5122 RL Y 6-Jan Bernice
Wilhoite
KY5123 RL Y 6-Jan Helen Archey
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
KY5111 23 Old Lexington KY 40515 Y Y
Richmond R
KY5116 790 Shelbyville KY 40067 Y Y
Brunerstown
KY5120 Perimeter Atlanta GA 30346 N Y
Center Park
KY5125 17 Grand Av Kansas MS 64112 Y Y
12t City
KY5126 Perimeter Atlanta GA 30346 N Y
Center Park
TN1002 091 Viscount Memphis TN 38118 Y Y
Aven
N1002-G Pine Crest Bristol TN 37620 N Y
IN5001 S. Finley- Scottsburg IN 47170 N Y
Firehous
IN5003 2369 East Seymour IN 47274 N Y
Base R
KY5004 385 S. Dixi Upton KY 42702 N Y
Highw
KY5005 241 Childrens Munfordvi KY 42765 Y Y
Road lle
KY5008 424 Power Bowling KY 42101 Y Y
Street Green
KY5009 Woodburn-Allen Woodburn KY 42170 Y Y
Spri
KY5100 P.O. Box 612 Williamsb KY 40769 Y Y
urg
KY5101 10 Cane Cr Williamsb KY 40769 Y Y
Ro urg
KY5106 P.O. Box 1644 London KY 40743 Y Y
KY5109 35 Peggy F Paint Lick KY 40461 Y Y
Ro
KY5110 07 Barns M Richmond KY 40475 Y Y
Road
KY5113 P.O. 305 Midway KY 40347 Y Y
KY5114 P.O. Box 293 Frankfurt KY 40602 Y Y
KY5122 3156 Georgetown KY 40324 Y Y
Cincinnati Rd
KY5123 95 Corinth KY 41010 Y Y
Campground
R
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
<S> <C> <C> <C> <C>
KY5111 N notice
KY5116 N yes notice
KY5120 Y consent/control language
KY5125 N master site agreement,
affiliate language, multiple
contact
KY5126 Y consent/control language
TN1002 N affiliate
N1002-G Y consent/control language
IN5001 N notice
IN5003 N notice
KY5004 N notice
KY5005 N notice
KY5008 N notice
KY5009 N notice
KY5100 N notice
KY5101 N notice
KY5106 N notice
KY5109 N notice
KY5110 N notice
KY5113 N notice
KY5114 N notice
KY5122 N freely assign with notice,
sublet no consent
KY5123 N yes notice
</TABLE>
I-26
<PAGE> 172
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
KY5124 Leon Hamilton K-5124-B Blanket Complete $ 500.00 C or 7/26/99 RL Y 6-Jan
KY5003 Elizabeth - Jones K-5003-C Blanket Complete $ 500.00 C or BP RL Y Y
(PSC 12/19/97)
KY5006 Prewitts - Ed I Lay K-5006-C Blanket Complete $ 500.00 2/1/98 RL Y Y duard Ha
KY5016 Oakland - WKNF K-5016-B Blanket Complete $ 400.00 C or 6/10/99 RL Y Y
II
KY5017 Gordonsville K-5017-A Blanket Complete $ 650.00 C or 5/31/99 RL Y Y
Lebanon Jct -
Clarke
KY5102 Younger K-5102-D Blanket Complete $ 500.00 9/22/98 RL Y Y
KY5104 Lily Cobb K-5104-B Blanket Complete $ 350.00 10/13/99 RL Y Y
KY5107 Decker K-5107-E Blanket Complete $ 450.00 7/20/99 RL N
TN5032 Portland - Brown T-5032-A Blanket Complete $ 600.00 C or BP RL Y
(KY PSC
12/19/97)
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
KY5124 Leon 198 Coleman Georgetow KY 40324 Y Y N yes notice
Hamilton Lane n
KY5003 Robert & Jean 126 Elizabeth KY 42701 Y Y N notice
Jones Springfiled Ro
KY5006 Crystal Onyx 09 Happy Cave City KY 42127 N Y N notice
Cave & Valey R
Campground
KY5016 Southeaste 2 Hunting Bowling KY 42104 Y Y N notice
Communication Creek C Green
ns
KY5017 Douglas & 37 Old Bostebanon KY 40150 N Y N notice
Ruth Clark Road Juncti
KY5102 Thomas G. 749 Cedar Jacksonvile FL 32210 Y Y N notice
Younger Oaks D
KY5104 Willie C. 39 Old Lily KY 40740 Y Y N notice
Cobb Whitley Ro
KY5107 Sean Decker 625 Cincinnati OH 45240 Y Y N notice
Harrington Co
TN5032 Mark & Kell P.O. 99 Woodburn KY 42170 N Y N notice
Brown, et. al.
</TABLE>
I-27
<PAGE> 173
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
IA0004 Pigeon Mid Complete $1,300.00
Creek West
IA0501 Western II I-W501-B Blanket Complete $1,200.00 C or 5/14/99
IA0502 AT&T #1 I-W502-C Blanket Complete $1,939.00 35926
IA0503 Western IV I-W503-A Blanket Complete
IA0507 Western I-W507-A Blanket Complete $1,500.00 36284
Wireless #10
IA0508 Western I-W508-A Blanket Complete $1,500.00 C or 5/4/99
Wireless #7
IA0510 Western I-W510-A Blanket Complete $1,500.00 C or 5/4/99
Wireless #11
IA0530 AT&T #2 I-W530-A Blanket Complete
IL3103 Gridley Mid Complete
West
IL3105 Bloomington Mid Complete
West
IL3109 Hensley Mid Complete
West
IL3110 Champaign Mid Complete
West
IL3121 Lincoln Mid Complete
West
IL3122 Elkhart Mid Complete
West
IL3134 Paxton Mid Complete
West
MN4000 West Mid Complete $ 750.00 1/1/99
Rochester West
MN4001 East Mid Complete $1,300.00 1/1/99
Rochester West
MN4002 Stewartville Mid Complete $ 400.00 5/01/98
West
NE0010 Melia Mid Complete $1,300.00 1/1/99
West
NE0013 Waverly Mid Complete $1,300.00 1/1/99
West
NE0015 Salt Creek Mid Complete
West
NE0016 College Mid Complete
View West
NE0020 Bellevue Mid Complete $ 800.00 5/01/98
West
NE0022 West Maple Mid Complete $1,300.00 1/01/99
West
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT STARTED (Y/N) CREATED (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C>
IA0004 Colo N Y Site Admin. SBA Towers,
IA0501 Colo Y Leasing Admin Western PCS I
Corp.
IA0502 Colo Y Manager, Real AT&T Corp.
IA0503 Colo Y Y Leasing Admin Western PCS I
Corp.
IA0507 Colo Y Y Leasing Admin Western PCS I
Corp.
IA0508 Colo Y Leasing Admin Western PCS I
Corp.
IA0510 Colo Y Y Leasing Admin Western PCS I
Corp.
IA0530 Colo Y Manager, Real AT&T Corp.
IL3103 Colo Y Y ald Sch G&R Schuler
Farms, Inc.
IL3105 Colo Y Y id J. Se Telecourier
IL3109 Colo N William Young
IL3110 Colo Y Y ery Bal TAK
Communications
IL3121 Colo Y Y nley Cl Clark Trans
IL3122 Colo Y Y ral Ma WYXY Radio
IL3134 Colo Y Y ry Rosa C&R Tower
Complex, Inc.
MN4000 Colo N Y 6-Jan ue La Metropolitan
Aerial Structures
MN4001 Colo N Y 6-Jan dminist SBA Towers, Inc.
MN4002 Colo Y Y Y dminist SBA Towers, Inc.
NE0010 Colo N Y Site Administ SBA Towers, Inc.
NE0013 Colo N Y Y SBA Towers, Inc.
NE0015 Colo N Y Y Bratcher
Enterprises
NE0016 Colo N Y Y Union College
NE0020 Colo Y Y Y Ralph Ham
NE0022 Colo N Y Y dminis SBA Towers, Inc.
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
IA0004 Center R Boca Raton FL 33486 n y
IA0501 Samma Issaquah WA 98027 y y
IA0502 nade II, Atlanta GA 30309 y y
IA0503 W Sam Issaquah WA 98027 y y
IA0507 Samma Issaquah WA 98027 y y
IA0508 Samma Issaquah WA 98027 y y
IA0510 W Sam Issaquah WA 98027 y y
IA0530 nade II, Atlanta GA 30309 y y
IL3103 1 E. Full Chenoa IL 61726 y y
IL3105 nter, 520 Bloomington IL 61701 y y
IL3109
IL3110 2 Neil Str Champaign IL 61820 y y
IL3121 Old Rout Lincoln IL 62656 y y
IL3122 ngamon Springfield IL 62708 y y
IL3134 st 600 N Paxton IL 60957 y y
MN4000 Main P.O. River Falls MN 54022 y y
MN4001 Town Cente Boca Raton FL 33486
MN4002 Center R Boca Raton FL 33486 n y
NE0010 Center R Boca Raton FL 33486 n y
NE0013
NE0015 Industri Lincoln NE 68504 N Y
NE0016
NE0020 3 Lincoln Bellvue NE 68005 N Y
NE0022 Center R Boca Raton FL 33486 n y
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED
CODE REQUIRED (Y/N) (Y/N) RETURN RECEIPT COMMENTS
RECEIVED (Y/N)
<S> <C> <C> <C> <C>
IA0004 n consent/controlling
language
IA0501 n affiliate
IA0502 n notice
IA0503 n affiliate
IA0507 n affiliate
IA0508 n affiliate
IA0510 n affiliate
IA0530 n notice
IL3103 n affiliate
IL3105 n
IL3109
IL3110 n affiliate
IL3121 n affiliate
IL3122 n affiliate
IL3134 n affiliate
MN4000 n affiliate language
MN4001 site lease only
MN4002 n consent/controlling
language
NE0010 n consent/controlling
language
NE0013
NE0015 y consent/controlling
language
NE0016 y Not leased, Search Ring
Only
NE0020 y consent/control language
NE0022 consent/controlling
language
</TABLE>
I-28
<PAGE> 174
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
LEASE
PROJECT PROJECT NAME SITE ID NEXTEL'S MARKET SITE LEASED LEASE RATE COMMENCEMENT
CODE (SITE NAME) (WITH PREFIX) NAME DATE
<S> <C> <C> <C> <C> <C> <C>
NE0023 Rainwood Mid Complete $ 750.000 5/01/99
West
NE0024 Papillion Mid Complete $1,300.00 1/01/99
West
NE0026 Council Mid Complete $1,300.00 1/01/99
Bluffs West
WI0120 Bellvue G.B. Mid Complete $1,000.00
WI0152 Keenville I- Mid Complete $1,125.00
41 West
WI0154 Appleton I- Mid Complete $1,000.00
41 West
WI5001 Elk Mound Mid Complete $1,200.00
West
WI5005 Osseo Mid Complete $1,300.00 1/01/99
West
WI5006 Curran Mid Complete $1,300.00 1/01/99
West
WI5007 Black River Mid Complete $1,300.00 1/01/99
Falls West
WI5009 Millston Mid Complete $1,300.00 1/01/00
West
WI5010 Warrens Mid Complete $1,300.00 1/01/99
West
WI5011 Tomah Mid Complete $1,300.00 1/01/99
West
IA0500 Rees I-W500-D Blanket Complete
IA0504 Jordan I-W504-B Blanket Complete $ 600.00 36239
Motors
IA0527 Heuer I-W527-B Blanket Complete $ 500.00 C or 9/20/99
IA0528 Ericksen I-W528-A Blanket Complete $ 500.00 C or 6/20/99
IA0529 Frank I-W529-C Blanket Complete $ 500.00 C or 6/24/99
Kabela
IA0531 Snook I-W531-D Blanket Complete $ 500.00 36333
IA0532 Hagen I-W532-C Blanket Complete $ 500.00 36323
IA0533 Gerig I-W533-B Blanket Complete $ 500.00 36341
IA0534 Huedepohl I-W534-C Blanket Complete $ 500.00 35916
IA0535 Morrison I-W535-C Blanket Complete $ 500.00 36335
IA0536 Young I-W536-C Blanket Complete $ 500.00 35916
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT COLO / RAW LAND/ LEASE PAYMENTS COPY OF LEASE COPY SENT TO PARTNER CONTACT PERSON LANDLORD
CODE TENANT IMPROVEMENT STARTED (Y/N) CREATED (Y/N) (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NE0023 Colo Y Y Y e Gros Hi-Tec Towers
NE0024 Colo N Y Y SBA Towers, Inc.
NE0026 Colo N Y Y SBA Towers, Inc.
WI0120 Colo Y 6-Jan Michael Reetz
Greg Marweg &
Harry Reetz
WI0152 Colo Y 6-Jan Courtn Maddam Aeriantry
Corporation
WI0154 Colo Y 6-Jan Alan Ament
WI5001 Colo N Y 6-Jan hael Ph Philips
Broadcasting
WI5005 Colo N Y 6-Jan dminis SBA Towers, Inc.
WI5006 Colo Y Y 6-Jan d Barb Olstad
WI5007 Colo Y Y 6-Jan Robert SCH Partners
WI5009 Colo Y Y 6-Jan Bonit Gjerseth
WI5010 Colo Y Y 6-Jan Patricia Schaetzka
WI5011 Colo N Y 6-Jan Adminst SBA Towers, Inc.
IA0500 RL Y Y Byron L. Rees
David J. Rees
IA0504 RL Y Y Jordon Motors
Inc.
IA0527 RL Y Y Lyle & Marjo
Heuer
IA0528 RL Y Y Pele Mae Erickson
IA0529 RL Y Y Frank & Darlene
Kabela
IA0531 RL Y Y Francis W. Snook
IA0532 RL Y Y Todd and Wendy
Hagen
IA0533 RL Y Y Faye Gerig
IA0534 RL Y Y Donald & Ruth
Ester & Richard
Huedepoh
IA0535 RL Y Y Ronald E.
Morrison
IA0536 RL Y Y Elma V.A. Young
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LEASE ASSIGNABLE FINANCING LANGUAGE
CODE ADDRESS CITY STATE ZIP CODE (Y/N) PRESENT (Y/N)
<S> <C> <C> <C> <C> <C> <C>
NE0023 Mckinley Omaha NE 68112 N Y
NE0024
NE0026
WI0120 Walker Green Bay WI 54311 y y
WI0152 Trun Appleton WI 54915 y y
WI0154 ast Paci Appleton WI 54912- y y
0652
WI5001 rescent Menomonie WI 54751 y y
WI5005 wnCente Boca Raton FL 33486
WI5006 06 Olsta Hixton WI 54635 y y
WI5007 Sunset LaCrosse WI 54601 y y
WI5009 3, Box 2 Black River WI 54615 y y
Falls
WI5010 e Road P Pickett WI 54964 y y
WI5011 wnCente Boca Raton FL 33486
IA0500 NE 27 A Altoona IA 50009 N Y
IA0504 Merle H Johnston IA 50131 N Y
IA0527 81 220th Walcott IA 52773 N Y
IA0528 6 Mosco Moscow IA 52760 N Y
IA0529 290th St. West Branch IA 52358 N Y
IA0531 3 Hwy F Newton IA 50208 N Y
IA0532 6 Y. Ave Williamsbur IA 52361 N Y
IA0533 66 220th Marengo IA 52301 N Y
IA0534 2&410th Brooklyn IA 52211 N Y
IA0535 5 420th Grinnell IA 50112 N Y
IA0536 9 N. 2nd Marshalltow IA 50158 N Y
</TABLE>
<TABLE>
<CAPTION>
LEASE INFORMATION
PROJECT LANDLORD CONSENT CONSENT OBTAINED RETURN RECEIPT
CODE REQUIRED (Y/N) (Y/N) RECEIVED (Y/N) COMMENTS
<S> <C> <C> <C> <C>
NE0023 Y consent/control language
NE0024
NE0026
WI0120 n affiliate language, sublet-no
consent, no signed
agreement
WI0152 n affiliate language, no signed
agreement
WI0154 n affiliate language, sublet no
consent
WI5001 n affiliate language, no signed
agreement
WI5005 site license only
WI5006 n affiliate language, sublet no
consent
WI5007 n affiliate language, sublet no
consent
WI5009 n affiliate language, sublet no
consent
WI5010 n affiliate language, sublet no
consent
WI5011 site license only
IA0500 N notice
IA0504 N notice
IA0527 N notice
IA0528 N notice
IA0529 N notice
IA0531 N notice
IA0532 N notice
IA0533 N notice
IA0534 N notice
IA0535 N notice
IA0536 N notice
</TABLE>
I-29
<PAGE> 175
<TABLE>
<CAPTION>
NEXTEL SITE ID INFORMATION LEASE INFORMATION
NEXTEL'S LEASE COLO/RAW/LAND/ LEASE PAYMENT COPY OF LEASE
PROJECT PROJECT NAME SITE III MARKET SITE LEASED COMMENCEMENT TENANT STARTED (Y/N) CREATED (Y/N)
CODE (SITE NAME) (WITH PROFITS) NAME LEASED RATE DATE IMPROVEMENT
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
IA0537 Ryan I-W 537-O Blanket Complete $ 500.00 36149 RL Y
IL3112 Congerville Mid Complete RL Y
West
NE0012 Greenwood Mid Complete RL N Y
West
WI0121 Green Bay Mid Complete $ 900.00 RL Y
G.B. West
WI0126 Chapel Mid Complete $ 850.00 RL Y
Ridge G.B. West
WI0147 Byron I-41 Mid Complete $1,150.00 RL Y
West
WI0149 El Dorado I- Mid Complete $ 800.00 RL Y
41 West
WI0150 Nekimi I-41 Mid Complete $ 800.00 RL Y
West
WI0153 Neenah I-41 Mid Complete $ 800.00 RL Y
West
WI0156 Kaukauna I- Mid Complete $ 600.00 RL Y
41 West
IL3115 Peoria Mid Complete TI Y
West
IL3125 Springfield Mid Complete TI Y
West
IL3144 Dawson Mid Complete Y
West
IL3145 Delevan Mid Complete Y
West
IL3146 El Paso Mid Complete Y
West
IN2502 Covington Mid Complete Y
West
IN2512 Hillsboro Mid Complete Y
West
65 64
</TABLE>
<TABLE>
<CAPTION>
COPY SENT CONTACT LEASE
PROJECT TO PARTNER PERSON LANDLORD ADDRESS CITY STATE ZIP ASSIGNABLE
CODE (Y/N) CODE (Y/N)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
IA0537 Y Lawrence & reland A Tiffin IA 52340 N
Delored Ryan
IL3112 Y Charles & Bre #1, Box Congerville IL 61729 n
Hinrichson
NE0012 Y Ray & Lucy Judd N 60th Lincoln NE 68507 N
WI0121 6-Jan al Win Heron, LLC ounty R Sturgeon WI 54235 y
Bay
WI0126 6-Jan Francis & Jein t Grego Green Bay WI 54311 y
LaMieux
WI0147 6-Jan t von B Midwest Towest Fairvi Milwaukie WI 53226 y
Partners LLC
WI0149 6-Jan Bruce & Renee Van Dyn Fond du Lac WI 54937 y
Schneider
WI0150 6-Jan Donna Thomas tainview Oshkosh WI 54904 y
WI0153 6-Jan Dennis & Mary h Green Neenah WI 54956 y
Haetzell
WI0156 6-Jan Steven Sanderfoot anitoriu Little Chut WI 54140 y
Construction, Inc.
IL3115 Y rk Willi Twin Towers W. Jeffer Peoria IL 61602 y
Place Condo
Association
IL3125 K. Michael Pinnacle Ltd. Adams Springfield IL 62701 y
Partnership
IL3144 Y Donn C. Mill Holiday E Riverton IL 62561 y
IL3145 Y Russell Sands Boynton Delavan IL 61734 y
IL3146 Y Arthur Grube RR 1 El Paso IL 61738 n
IN2502 Y rad Cra McDonald Crain ubhouse Covington IN 47932 n
Development
Corporation
IN2512 Y Steven & Bett Highway Hillsboro IN 47949 n
Lou Holt 33
</TABLE>
<TABLE>
<CAPTION>
FINANCE LANDLORD CONSENT RETURN
PROJECT LANGUAGE CONSENT OBTAINED RECIEPT COMMENTS
CODE PRESENT REQUIRED (Y/N) (Y/N)
(Y/N) (Y/N)
<S> <C> <C> <C> <C> <C>
IA0537 Y N notice
IL3112 y n notice
NE0012 Y N notice
WI0121 y n affiliate language, sublet no
consent
WI0126 y n affiliate language, sublet no
consent, no signed
agreement
WI0147 y n affiliate language
WI0149 y n affiliate language, sublet no
consent, no signed
agreement
WI0150 y n affiliate language, sublet no
consent, no signed
agreement
WI0153 y n affiliate language, sublet no
consent, no signed
agreement
WI0156 y n affiliate language, sublet no
consent
IL3115 y n affiliate
IL3125 y n affiliate
IL3144 y n affiliate
IL3145 y n affiliate
IL3146 y n notice
IN2502 Y Y consent/control language
IN2512 Y Y consent/control language
57
</TABLE>
I-30
<PAGE> 176
SCHEDULE II
to Credit Agreement
PERCENTAGES
<TABLE>
<CAPTION>
REVOLVING TERM-B LOAN TERM-C LOAN
LOAN COMMITMENT COMMITMENT COMMITMENT
<S> <C> <C> <C>
DLJ CAPITAL FUNDING, INC. ________% ________% ________%
</TABLE>
<TABLE>
<CAPTION>
ADMINISTRATIVE INFORMATION
<S> <C>
Notice Information
Nextel Partners Operating Corp. Address:
Contact:
Fax:
DLJ Capital Funding, Inc. 277 Park Avenue
as Syndication Agent New York, NY 10172
Contact:
Fax:
Bank of Montreal
as Administrative
Agent Address:
Contact:
Fax:
The Bank of New York
as Documentation Agent Address:
Contact:
Fax:
Lenders' Domestic and LIBOR Offices
</TABLE>
<PAGE> 177
SCHEDULE III
to Credit Agreement
LICENSES/NETWORK AREA
REGION MARKETS
- ---------------------- ---------------------------------------------------------
NORTHEAST Albany
Binghamton/Elmira
Buffalo
Erie
Glens Falls
Harrisburg/York/Lancaster
Ithaca/Norwich
Jamestown
Rochester
Syracuse
Wilkes-Barre/Scranton/Berwick
- ---------------------- ---------------------------------------------------------
SOUTH Alexandria
Beaumont/Lafayette/Lake Charles
Bryan-College Station
Corpus Christi
Florida Panhandle
Gieger/Dothan/Auburn-Opelika
Jackson/Hattiesburg
Lynchburg/Louisville/Lexington
Mobile/Montgomery
Pascagoula
Pensacola/Panama City/Fort Walton Beach
Roanoke/Blacksburg
Shreveport/Texarkana
<PAGE> 178
Tallahassee
Temple-Killeen/Waco
- ------------------------------------------ -------------------------------------
MIDWEST & WEST Boise/Sun Valley
Davenport/Dubuque
Des Moines/Ames
Duluth
Eau Claire
Green Bay/Fond du Lac
Independence
Omaha/Lincoln
Peoria/Springfield
Rochester
Twin Falls
- ------------------------------------------ -------------------------------------
NONCONTINENTAL U.S. Hawaii
- ------------------------------------------ -------------------------------------
||
III-2
<PAGE> 179
SCHEDULE IV
to Credit Agreement
ORIGINAL INVESTORS
Madison Dearborn Capital Partners II. L.P.
DLJ Merchant Banking Partners II, L.P.
DLJ Merchant Banking Partners II-A, L.P.
DLJ Offshore Partners II, C.V.
DLJ Diversified Partners, L.P.
DLJ Diversified Partners-A, L.P.
DLJ EAB Partners, L.P.
DLJ ESC II, L.P.
DLJ First ESC, L.P.
DLJ Millennium Partners, L.P.
DLJ Millennium Partners-A, L.P.
UK Investment Plan 1997 Partners
Madrona Investment Group, L.L.C.
Ampersand Holdings, L.L.C.
Steve Hooper
John Chapple
Arthur Harrigan
GE Capital Services Structured Finance Group, Inc.
NMS Capital, L.P.
Cascade Investments, L.L.C.
Eagle River Investments, LLC
<PAGE> 180
SCHEDULE V
to Credit Agreement
OPTION FCC LICENSES/OPTION TERRITORIES
